Exhibit 99.2
CREDIT AGREEMENT
dated as of January 22, 2003
by and among
▇▇▇▇ IN THE BOX INC.,
as Borrower,
the Lenders referred to herein,
as Lenders,
FLEET NATIONAL BANK,
as Syndication Agent,
US BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
COOPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.,
"RABOBANK INTERNATIONAL," NEW YORK BRANCH,
as Documentation Agent,
BNP PARIBAS,
as Documentation Agent
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
WACHOVIA SECURITIES, INC.
as Co-Lead Arranger and Sole Book Manager
and
FLEET NATIONAL BANK,
as Co-Lead Arranger
TABLE OF CONTENTS
ARTICLE I DEFINITIONS.........................................................1
SECTION 1.1 Definitions......................................................1
SECTION 1.2 General.........................................................19
SECTION 1.3 Other Definitions and Provisions................................19
ARTICLE II REVOLVING CREDIT FACILITY.........................................20
SECTION 2.1 Revolving Credit Loans..........................................20
SECTION 2.2 Swingline Loans.................................................20
SECTION 2.3 Procedure for Advances of Revolving Credit and Swingline Loans..21
SECTION 2.4 Repayment of Loans..............................................22
SECTION 2.5 Notes...........................................................23
SECTION 2.6 Permanent Reduction of the Revolving Credit Commitment..........24
SECTION 2.7 Termination of Revolving Credit Facility........................24
SECTION 2.8 Increase of Revolving Credit Commitment.........................24
ARTICLE III LETTER OF CREDIT FACILITY........................................26
SECTION 3.1 L/C Commitment..................................................26
SECTION 3.2 Procedure for Issuance of Letters of Credit.....................26
SECTION 3.3 Commissions and Other Charges...................................27
SECTION 3.4 L/C Participations..............................................28
SECTION 3.5 Reimbursement Obligation of the Borrower........................28
SECTION 3.6 Obligations Absolute............................................29
SECTION 3.7 Effect of Application...........................................30
ARTICLE IV TERM LOAN FACILITY................................................30
SECTION 4.1 Term Loan.......................................................30
SECTION 4.2 Procedure for Advance of Term Loan..............................30
SECTION 4.3 Repayment of Term Loan..........................................30
SECTION 4.4 Prepayments of Term Loan........................................31
SECTION 4.5 Term Notes......................................................33
ARTICLE V GENERAL LOAN PROVISIONS............................................34
SECTION 5.1 Interest........................................................34
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans........36
SECTION 5.3 Fees............................................................36
SECTION 5.4 Manner of Payment...............................................37
SECTION 5.5 Crediting of Payments and Proceeds..............................38
SECTION 5.6 Adjustments.....................................................38
SECTION 5.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent................39
SECTION 5.8 Changed Circumstances...........................................39
SECTION 5.9 Indemnity.......................................................41
SECTION 5.10 Capital Requirements............................................42
SECTION 5.11 Taxes...........................................................42
SECTION 5.12 Replacement of Lenders..........................................44
SECTION 5.13 Matters Applicable to all Requests for Compensation.............44
SECTION 5.14 Security........................................................45
ARTICLE VI CLOSING; CONDITIONS OF CLOSING AND BORROWING......................45
SECTION 6.1 Closing.........................................................45
SECTION 6.2 Conditions to Closing and Initial Extensions of Credit..........45
SECTION 6.3 Conditions to All Extensions of Credit..........................48
ARTICLE VII REPRESENTATIONS AND WARRANTIES OF THE BORROWER...................49
SECTION 7.1 Representations and Warranties..................................49
SECTION 7.2 Survival of Representations and Warranties, Etc.................56
ARTICLE VIII FINANCIAL INFORMATION AND NOTICES...............................56
SECTION 8.1 Financial Statements and Projections............................56
SECTION 8.2 Officer's Compliance Certificate................................57
SECTION 8.3 Annual Accountants' Certificate.................................57
SECTION 8.4 Other Reports...................................................57
SECTION 8.5 Notice of Litigation and Other Matters..........................58
SECTION 8.6 Accuracy of Information.........................................59
ARTICLE IX AFFIRMATIVE COVENANTS.............................................59
SECTION 9.1 Preservation of Corporate Existence and Related Matters.........59
SECTION 9.2 Maintenance of Property.........................................59
SECTION 9.3 Insurance.......................................................59
SECTION 9.4 Accounting Methods and Financial Records........................59
SECTION 9.5 [Intentionally Omitted].........................................59
SECTION 9.6 Compliance With Laws and Approvals..............................60
SECTION 9.7 Environmental Laws..............................................60
SECTION 9.8 Compliance with ERISA...........................................60
SECTION 9.9 [Intentionally Omitted].........................................60
SECTION 9.10 Visits and Inspections..........................................60
SECTION 9.11 Additional Subsidiaries.........................................61
SECTION 9.12 Use of Proceeds.................................................63
SECTION 9.13 Real Property Collateral........................................63
SECTION 9.14 Further Assurances..............................................63
ARTICLE X FINANCIAL COVENANTS................................................63
SECTION 10.1 Maximum Leverage Ratio..........................................63
SECTION 10.2 Minimum Fixed Charge Coverage Ratio.............................63
SECTION 10.3 Maximum Adjusted Debt to EBITDAR................................64
SECTION 10.4 Minimum Tangible Net Worth......................................64
SECTION 10.5 Maximum Capital Expenditures....................................64
ARTICLE XI NEGATIVE COVENANTS................................................65
SECTION 11.1 Limitations on Debt.............................................65
SECTION 11.2 Limitations on Liens............................................66
SECTION 11.3 Limitations on Loans, Advances, Investments and Acquisitions....67
SECTION 11.4 Limitations on Mergers and Liquidation..........................70
SECTION 11.5 Limitations on Sale of Assets...................................70
SECTION 11.6 Limitations on Dividends and Distributions......................71
SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock...........71
SECTION 11.8 Transactions with Affiliates....................................71
SECTION 11.9 Certain Accounting Changes; Organizational Documents............72
SECTION 11.10 Amendments; Payments and Prepayments of Subordinated Debt.......72
SECTION 11.11 Restrictive Agreements..........................................72
SECTION 11.12 Nature of Business..............................................72
SECTION 11.13 Impairment of Security Interests................................72
ARTICLE XII DEFAULT AND REMEDIES.............................................73
SECTION 12.1 Events of Default...............................................73
SECTION 12.2 Remedies........................................................75
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc.................76
ARTICLE XIII THE ADMINISTRATIVE AGENT........................................76
SECTION 13.1 Appointment.....................................................76
SECTION 13.2 Delegation of Duties............................................77
SECTION 13.3 Exculpatory Provisions..........................................77
SECTION 13.4 Reliance by the Administrative Agent............................77
SECTION 13.5 Notice of Default...............................................77
SECTION 13.6 Non-Reliance on the Administrative Agent and Other Lenders......78
SECTION 13.7 Indemnification.................................................78
SECTION 13.8 The Administrative Agent in Its Individual Capacity.............79
SECTION 13.9 Resignation of the Administrative Agent; Successor Administrative
Agent...........................................................79
SECTION 13.10 Documentation Agent and Syndication Agent.......................79
ARTICLE XIV MISCELLANEOUS....................................................80
SECTION 14.1 Notices.........................................................80
SECTION 14.2 Expenses; Indemnity.............................................81
SECTION 14.3 Set-off.........................................................82
SECTION 14.4 Governing Law...................................................82
SECTION 14.5 Jurisdiction and Venue..........................................82
SECTION 14.6 Waiver of Jury Trial............................................83
SECTION 14.7 Reversal of Payments............................................83
SECTION 14.8 Injunctive Relief; Punitive Damages.............................83
SECTION 14.9 Accounting Matters..............................................83
SECTION 14.10 Successors and Assigns; Participations..........................84
SECTION 14.11 Amendments, Waivers and Consents................................88
SECTION 14.12 Performance of Duties...........................................89
SECTION 14.13 All Powers Coupled with Interest................................89
SECTION 14.14 Survival of Indemnities.........................................89
SECTION 14.15 Titles and Captions.............................................89
SECTION 14.16 Severability of Provisions......................................89
SECTION 14.17 Counterparts....................................................89
SECTION 14.18 Term of Agreement...............................................89
SECTION 14.19 Advice of Counsel...............................................90
SECTION 14.20 No Strict Construction..........................................90
SECTION 14.21 Inconsistencies with Other Documents; Independent Effect
of Covenants....................................................90
EXHIBITS AND SCHEDULES
EXHIBITS
Exhibit A-1 - Form of Revolving Credit Note
Exhibit A-2 Form of Swingline Note
Exhibit A-3 - Form of Term Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Account Designation
Exhibit D - Form of Notice of Prepayment
Exhibit E - Form of Notice of Conversion/Continuation
Exhibit F - Form of Officer's Compliance Certificate
Exhibit G - Form of Assignment and Acceptance
Exhibit H - Form of Guaranty Agreement
Exhibit I - Form of Collateral Agreement
Exhibit J - Form of Joinder Agreement
SCHEDULES
Schedule 1.1(a) - Existing Letter of Credit
Schedule 1.1(b) - Unrestricted Subsidiaries
Schedule 1.1(c) Restaurant Units Held for Resale
Schedule 7.1(a) - Jurisdictions of Organization and
Qualification
Schedule 7.1(b) - Subsidiaries and Capitalization
Schedule 7.1(i) - ERISA Plans
Schedule 7.1(l) - Material Contracts
Schedule 7.1(t) - Debt and Guaranty Obligations
Schedule 7.1(u) - Litigation
Schedule 9.13 - List of Excluded Properties
Schedule 11.1(b) Existing Hedging Agreements
Schedule 11.1(c) - Permitted Debt
Schedule 11.2 - Existing Liens
Schedule 11.3 - Existing Loans, Advances and Investments
CREDIT AGREEMENT, dated as of the 22nd day of January, 2003 by and
among ▇▇▇▇ IN THE BOX INC., a Delaware corporation, as Borrower (the
"Borrower"), the lenders who are or may become a party to this Agreement, as
Lenders (the "Lenders"), FLEET NATIONAL BANK, as Syndication Agent, U.S. BANK
NATIONAL ASSOCIATION, as Syndication Agent, COOPERATIEVE CENTRALE
RAIFFEISEN-BOERENLEENBANK B.A., "RABOBANK INTERNATIONAL," NEW YORK BRANCH, as
Documentation Agent, BNP PARIBAS, as Documentation Agent, and WACHOVIA BANK,
NATIONAL ASSOCIATION, a national banking association, as Administrative Agent
for the Lenders (the "Administrative Agent").
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to extend
certain credit facilities to the Borrower on the terms and conditions of this
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged by the parties hereto, such parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 Definitions. The following terms when used in this
Agreement shall have the meanings assigned to them below:
"Adjusted Debt" means, as of any date of calculation, the sum of the
following determined on a Consolidated basis, without duplication, for the
Borrower and its Restricted Subsidiaries in accordance with GAAP: (a) Funded
Debt as of such date, plus (b) the product of (i) Rental Expense for the four
(4) consecutive fiscal quarters ending on or immediately prior to such date,
multiplied by (ii) 8.0.
"Administrative Agent" means Wachovia in its capacity as Administrative
Agent hereunder, and any successor thereto appointed pursuant to Section 13.9.
"Administrative Agent's Office" means the office of the Administrative
Agent specified in or determined in accordance with the provisions of Section
14.1(c).
"Affiliate" means, with respect to any Person, any other Person (other
than a Subsidiary of the Borrower) which directly or indirectly through one or
more intermediaries, controls, or is controlled by, or is under common control
with, such first Person or any of its Subsidiaries. The term "control" means (a)
the power to vote five percent (5%) or more of the securities or other equity
interests of a Person having ordinary voting power, or (b) the possession,
directly or indirectly, of any other power to direct or cause the direction of
the management and policies of a Person, whether through ownership of voting
securities, by contract or otherwise.
"Aggregate Commitment" means the aggregate amount of the Lenders'
Commitments hereunder, as such amount may be reduced or otherwise modified at
any time or from time to time pursuant to the terms hereof. On the Closing Date,
the Aggregate Commitment shall be Three Hundred Fifty Million Dollars
($350,000,000). At no time shall the Aggregate Commitment exceed Three Hundred
Seventy-Five Million Dollars ($375,000,000).
1
"Agreement" means this Credit Agreement, as amended, restated,
supplemented or otherwise modified from time to time.
"Applicable Law" means all applicable provisions of constitutions,
laws, statutes, ordinances, rules, treaties, regulations, permits, licenses,
approvals, interpretations and orders of courts or Governmental Authorities and
all orders and decrees of all courts and arbitrators.
"Applicable Margin" has the meaning assigned thereto in Section 5.1(c).
"Application" means an application, in the form specified by the
Issuing Lender from time to time, requesting the Issuing Lender to issue a
Letter of Credit.
"Approved Fund" means any Person (other than a natural Person),
including, without limitation, any special purpose entity, that is (or will be)
engaged in making, purchasing, holding or otherwise investing in commercial
loans and similar extensions of credit in the ordinary course of its business;
provided, that such Approved Fund must be administered by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that
administers or manages a Lender.
"Assignment and Acceptance" has the meaning assigned thereto in Section
14.10.
"Base Rate" means, at any time, the higher of (a) the Prime Rate and
(b) the Federal Funds Rate plus 1/2 of 1%; each change in the Base Rate shall
take effect simultaneously with the corresponding change or changes in the Prime
Rate or the Federal Funds Rate.
"Base Rate Loan" means any Loan bearing interest at a rate based upon
the Base Rate as provided in Section 5.1(a).
"Benefited Lender" has the meaning assigned thereto in Section 5.6.
"Borrower" means ▇▇▇▇ in the Box Inc., a Delaware corporation, in its
capacity as borrower hereunder.
"Business Day" means (a) for all purposes other than as set forth in
clause (b) below, any day other than a Saturday, Sunday or legal holiday on
which banks in Charlotte, North Carolina and New York, New York, are open for
the conduct of their commercial banking business, and (b) with respect to all
notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan, any day that is a Business Day described in
clause (a) and that is also a day for trading by and between banks in Dollar
deposits in the London interbank market.
2
"Calculation Date" has the meaning assigned thereto in Section 5.1(c).
"Capital Asset" means, with respect to the Borrower and its
Subsidiaries, any asset that should, in accordance with GAAP, be classified and
accounted for as a capital asset on a Consolidated balance sheet of the Borrower
and its Subsidiaries.
"Capital Expenditures" means with respect to the Borrower and its
Restricted Subsidiaries for any period, the aggregate cost of all Capital Assets
acquired by the Borrower and its Restricted Subsidiaries during such period, as
determined in accordance with GAAP.
"Capital Lease" means any lease of any property by the Borrower or any
of its Restricted Subsidiaries, as lessee, that should, in accordance with GAAP,
be classified and accounted for as a capital lease on a Consolidated balance
sheet of the Borrower and its Subsidiaries.
"Change in Control" has the meaning assigned thereto in Section
12.1(i).
"Closing Date" means the date of this Agreement or such later Business
Day upon which each condition described in Section 6.2 shall be satisfied or
waived in all respects in a manner acceptable to the Administrative Agent, in
its sole discretion.
"Code" means the Internal Revenue Code of 1986, and the rules and
regulations thereunder, each as amended or modified from time to time.
"Collateral" means the collateral security for the Obligations pledged
or granted pursuant to the Security Documents.
"Collateral Agreement" means the collateral agreement of even date
executed by the Borrower and each Restricted Subsidiary that is a Domestic
Subsidiary thereof in favor of the Administrative Agent for the benefit of
itself and the Lenders, substantially in the form of Exhibit I, as amended,
restated, supplemented or otherwise modified from time to time.
"Commitment" means, as to any Lender, the sum of such Lender's
Revolving Credit Commitment and Term Loan Commitment, as applicable, as set
forth in the Register, as such Commitment may be reduced or otherwise modified
at any time or from time to time pursuant to the terms hereof.
"Commitment Fee Rate" has the meaning assigned thereto in Section
5.3(a).
"Commitment Percentage" means, as to any Lender at any time, the ratio
of (a) the amount of the Commitment of such Lender to (b) the Aggregate
Commitment of all the Lenders.
"Consolidated" means, when used with reference to financial statements
or financial statement items of the Borrower and its Subsidiaries, such
statements or items on a consolidated basis in accordance with applicable
principles of consolidation under GAAP.
3
"Credit Facility" means, collectively, the Revolving Credit Facility,
the Swingline Facility, the L/C Facility and the Term Loan Facility.
"Debt" means, with respect to the Borrower and its Subsidiaries at any
date and without duplication, the sum of the following calculated in accordance
with GAAP: (a) all liabilities, obligations and indebtedness for borrowed money
including, but not limited to, obligations evidenced by bonds, debentures, notes
or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person (including,
without limitation, all obligations under non-competition agreements), except
trade payables arising in the ordinary course of business not more than ninety
(90) days past due (unless being disputed in good faith), (c) all obligations of
any such Person as lessee under Capital Leases, (d) all Debt of any other Person
secured by a Lien on any asset of the Borrower and its Restricted Subsidiaries,
(e) all Guaranty Obligations of any such Person, (f) all obligations, contingent
or otherwise, of any such Person relative to the face amount of letters of
credit, whether or not drawn, including, without limitation, any Reimbursement
Obligation, and banker's acceptances issued for the account of any such Person,
(g) all obligations of any such Person to redeem, repurchase, exchange, defease
or otherwise make payments in respect of capital stock or other securities or
partnership interests of such Person, (h) all net payment obligations incurred
by any such Person pursuant to Hedging Agreements, (i) all outstanding payment
obligations with respect to Synthetic Leases and (j) the outstanding attributed
principal amount under any asset securitization program.
"Default" means any of the events specified in Section 12.1 which with
the passage of time, the giving of notice or any other condition, would
constitute an Event of Default.
"Dollars" or "$" means, unless otherwise qualified, dollars in lawful
currency of the United States.
"Domestic Subsidiary" means any Subsidiary organized under the laws of
any political subdivision of the United States.
"EBITDA" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the Borrower and its Restricted
Subsidiaries in accordance with GAAP: (a) Net Income for such period plus (b)
the sum of the following to the extent deducted in determining Net Income: (i)
income and franchise taxes, (ii) Interest Expense, (iii) amortization,
depreciation and other non-cash charges and (iv) any non-cash nonrecurring or
extraordinary losses approved by the Administrative Agent less (c) interest
income and any nonrecurring or extraordinary gains.
"EBITDAR" means, for any period, the sum of the following determined on
a Consolidated basis, without duplication, for the Borrower and its Restricted
Subsidiaries in accordance with GAAP: (a) EBITDA for such period, plus (b)
Rental Expense for such period.
"Eligible Assignee" means, with respect to any assignment of the
rights, interest and obligations of a Lender hereunder, a Person that is at the
time of such assignment (a) a commercial bank organized under the laws of the
United States or any state thereof, having combined capital and surplus in
excess of $500,000,000, (b) a commercial bank organized under the laws of any
other country that is a member of the Organization of Economic Cooperation and
5
Development, or a political subdivision of any such country, having combined
capital and surplus in excess of $500,000,000, (c) a finance company, insurance
company or other financial institution which in the ordinary course of business
extends credit of the type extended hereunder and that has total assets in
excess of $1,000,000,000, (d) already a Lender hereunder (whether as an original
party to this Agreement or as the assignee of another Lender), (e) the successor
(whether by transfer of assets, merger or otherwise) to all or substantially all
of the commercial lending business of the assigning Lender, (f) any Affiliate of
assigning Lender or (g) any Approved Fund or (h) any other Person that has been
approved in writing as an Eligible Assignee by the Borrower (other than upon the
occurrence and during the continuance of any Default or Event of Default) and
the Administrative Agent.
"Employee Benefit Plan" means any employee benefit plan within the
meaning of Section 3(3) of ERISA which (a) is maintained for employees of the
Borrower or any ERISA Affiliate or (b) has at any time within the preceding six
(6) years been maintained for the employees of the Borrower or any current or
former ERISA Affiliate.
"Environmental Claims" means any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, accusations,
allegations, notices of noncompliance or violation, investigations (other than
internal reports prepared by any Person in the ordinary course of business and
not in response to any third party action or request of any kind) or proceedings
relating in any way to any actual or alleged violation of or liability under any
Environmental Law or relating to any permit issued, or any approval given, under
any such Environmental Law, including, without limitation, any and all claims by
Governmental Authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages, contribution, indemnification cost recovery,
compensation or injunctive relief resulting from Hazardous Materials or arising
from alleged injury or threat of injury to human health or the environment.
"Environmental Laws" means any and all federal, foreign, state,
provincial and local laws, statutes, ordinances, rules, regulations, permits,
licenses, approvals, interpretations and orders of courts or Governmental
Authorities, relating to the protection of human health or the environment,
including, but not limited to, requirements pertaining to the manufacture,
processing, distribution, use, treatment, storage, disposal, transportation,
handling, reporting, licensing, permitting, investigation or remediation of
Hazardous Materials.
"ERISA" means the Employee Retirement Income Security Act of 1974, and
the rules and regulations thereunder, each as amended or modified from time to
time.
"ERISA Affiliate" means any Person who together with the Borrower is
treated as a single employer within the meaning of Section 414(b), (c), (m) or
(o) of the Code or Section 4001(b) of ERISA.
"Eurodollar Reserve Percentage" means, for any day, the percentage
(expressed as a decimal and rounded upwards, if necessary, to the next higher
1/100th of 1%) which is in effect for such day as prescribed by the Federal
Reserve Board (or any successor) for determining the maximum reserve requirement
(including, without limitation, any basic, supplemental or emergency reserves)
in respect of eurocurrency liabilities or any similar category of liabilities
for a member bank of the Federal Reserve System in New York City.
6
"Event of Default" means any of the events specified in Section 12.1,
provided that any requirement for passage of time, giving of notice, or any
other condition, has been satisfied.
"Excess Cash Flow" means, for any period of determination, the sum of
the following determined on a Consolidated basis, without duplication, for the
Borrower and its Restricted Subsidiaries in accordance with GAAP: (a) EBITDA for
such period, minus (b) cash taxes and Interest Expense paid in cash for such
period, minus (c) all scheduled principal payments made in respect of Debt
during such period minus (d) all Capital Expenditures made during such period,
minus (e) non-scheduled principal payments with respect to the Term Loan
Facility plus or minus (f) any increases or decreases in Working Capital minus
(g) the cash portion of the purchase price for Permitted Acquisitions minus (h)
any reasonable transaction costs and expenses incurred in connection with
Permitted Acquisitions minus (i) proceeds received by the Borrower or any
Restricted Subsidiary in connection with Hedging Agreements minus (j) Net Cash
Proceeds from any offering of equity securities by the Borrower or any of its
Restricted Subsidiaries other than solely as a result of offerings of equity
securities made in connection with any employee stock option, incentive plan or
stock purchase plan or made in connection with compensation or incentive plans
for directors and officers, in each case, entered into in the ordinary course of
business, or the exercise of any options or other convertible securities in
connection therewith.
"Excess Proceeds" has the meaning assigned thereto in Section 2.6(b).
"Existing Credit Facility" means the Revolving Credit Agreement dated
as of April 1, 1998 by and among the Borrower (f/k/a Foodmaker, Inc.), the
lenders party thereto, and Bank of America, N.A. (f/k/a NationsBank of Texas,
N.A.), as agent, as amended, restated, supplemented, or otherwise modified from
time to time.
"Existing Letters of Credit" means all letters of credit described on
Schedule 1.1(a).
"Extensions of Credit" means, as to any Lender at any time, (a) an
amount equal to the sum of (i) the aggregate principal amount of all Revolving
Credit Loans made by such Lender then outstanding, (ii) such Lender's Revolving
Credit Commitment Percentage of the L/C Obligations then outstanding, (iii) such
Lender's Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding and (iv) the aggregate principal amount of all Term Loans made by
such Lender then outstanding, or (b) the making of any Loan or participation in
any Letter of Credit by such Lender, as the context requires.
"Facility Improvement Capital Expenditures" means Capital Expenditures
related to retail facility capital maintenance, remodels, offsets and rebuilds,
interior image enhancement, exterior image enhancement and operational
improvements.
"FDIC" means the Federal Deposit Insurance Corporation, or any
successor thereto.
7
"Federal Funds Rate" means, the rate per annum (rounded upwards, if
necessary, to the next higher 1/100th of 1%) representing the daily effective
federal funds rate as quoted by the Administrative Agent and confirmed in
Federal Reserve Board Statistical Release H.15 (519) or any successor or
substitute publication selected by the Administrative Agent. If, for any reason,
such rate is not available, then "Federal Funds Rate" shall mean a daily rate
which is determined, in the opinion of the Administrative Agent, to be the rate
at which federal funds are being offered for sale in the national federal funds
market at 9:00 a.m. (Charlotte time). Rates for weekends or holidays shall be
the same as the rate for the most immediately preceding Business Day.
"Fiscal Year" means the fiscal year of the Borrower and its
Subsidiaries ending on the Sunday that is closest to September 30.
"Foreign Subsidiary" means any Subsidiary that is not a Domestic
Subsidiary.
"Funded Debt" means, as of any date of determination with respect to
the Borrower and its Restricted Subsidiaries on a Consolidated basis without
duplication, the sum of (a) all Debt of the Borrower and its Subsidiaries
referred to in clauses (a) and (c) of the definition of "Debt" and (b) to the
extent that the underlying guaranteed Debt would be Debt of the types referred
to in clause (a) of this definition, Debt referred to in clause (e) of the
definition of "Debt".
"GAAP" means generally accepted accounting principles, as recognized by
the American Institute of Certified Public Accountants and the Financial
Accounting Standards Board, consistently applied and maintained on a consistent
basis for the Borrower and its Subsidiaries throughout the period indicated and
(subject to Section 14.9) consistent with the prior financial practice of the
Borrower and its Subsidiaries.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing.
"Guaranty Agreement" means the unconditional guaranty agreement of even
date executed by each Guarantor in favor of the Administrative Agent for the
ratable benefit of itself and the Lenders, substantially in the form of Exhibit
H, as amended, restated, supplemented or otherwise modified from time to time.
"Guarantors" means the Restricted Subsidiaries that are Domestic
Subsidiaries of the Borrower and any other Person which, after the Closing Date,
becomes a party to the Guaranty Agreement by executing and delivering a Joinder
Agreement.
"Guaranty Obligation" means, with respect to the Borrower and its
Subsidiaries, without duplication, any obligation, contingent or otherwise, of
any such Person pursuant to which such Person has directly or indirectly
guaranteed any Debt or other obligation of any other Person and, without
8
limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance
or supply funds for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by agreement to keep
well, to purchase assets, goods, securities or services, to take-or-pay, or to
maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such 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 Guaranty
Obligation shall not include endorsements for collection or deposit in the
ordinary course of business.
"Hazardous Materials" means any substances or materials (a) which are
or become defined as hazardous wastes, hazardous substances, pollutants,
contaminants, chemical substances or mixtures or toxic substances under any
Environmental Law, (b) which are toxic, explosive, corrosive, flammable,
infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to human
health or the environment and are or become regulated by any Governmental
Authority, (c) the presence of which require investigation or remediation under
any Environmental Law or common law, (d) the discharge or emission or release of
which requires a permit or license under any Environmental Law or other
Governmental Approval, (e) which are deemed to constitute a nuisance or a
trespass which pose a health or safety hazard to Persons or neighboring
properties, (f) which consist of underground or aboveground storage tanks,
whether empty, filled or partially filled with any substance, or (g) which
contain, without limitation, asbestos, polychlorinated biphenyls, urea
formaldehyde foam insulation, petroleum hydrocarbons, petroleum derived
substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
"Hedging Agreement" means any agreement with respect to any Interest
Rate Contract, forward rate agreement, forward foreign exchange agreement,
currency swap agreement, cross-currency rate swap agreement, currency option
agreement or other agreement or arrangement designed to alter the risks of any
Person arising from fluctuations in interest rates or currency values (other
than any commodity swap or other agreement or arrangement related to commodity
prices), all as amended, restated, supplemented or otherwise modified from time
to time.
"Hedging Obligations" has the meaning assigned thereto in the
definition of "Obligations".
"Indenture" means the indenture dated as of April 14, 1998 among
Foodmaker, Inc., as issuer, the Subsidiary Guarantors identified therein and
First Union National Bank, as trustee.
"Insurance and Condemnation Proceeds" has the meaning assigned thereto
in Section 4.4(b)(v).
"Interest Expense" means, with respect to the Borrower and its
Restricted Subsidiaries for any period, the gross interest expense (including,
without limitation, interest expense attributable to Capital Leases), all
determined for such period on a Consolidated basis, without duplication, in
accordance with GAAP.
"Interest Period" has the meaning assigned thereto in Section 5.1(b).
9
"Interest Rate Contract" means any interest rate swap agreement,
interest rate cap agreement, interest rate floor agreement, interest rate collar
agreement, interest rate option or any other agreement regarding the hedging of
interest rate risk exposure executed in connection with hedging the interest
rate exposure of any Person and any confirming letter executed pursuant to such
agreement, all as amended, restated, supplemented or otherwise modified from
time to time.
"ISP98" means the International Standby Practices (1998
Revision, effective January 1, 1999), International Chamber of Commerce
Publication No. 590.
"Issuing Lender" means (a) Wachovia and (b) solely with respect to the
Existing Letters of Credit, Bank of America, N.A.
"Joinder Agreement" means, collectively, each joinder agreement
executed in favor of the Administrative Agent for the ratable benefit of itself
and the Lenders, substantially in the form of Exhibit J.
"L/C Commitment" means the lesser of (a) Sixty Million Dollars
($60,000,000) and (b) the Revolving Credit Commitment.
"L/C Facility" means the letter of credit facility established pursuant
to Article III.
"L/C Obligations" means at any time, an amount equal to the sum of (a)
the aggregate undrawn and unexpired amount of the then outstanding Letters of
Credit and (b) the aggregate amount of drawings under Letters of Credit which
have not then been reimbursed pursuant to Section 3.5.
"L/C Participants" means the collective reference to all the Lenders
with Revolving Credit Commitments other than the Issuing Lender.
"L/C Supporting Documentation" has the meaning assigned thereto in
Section 3.2.
"Lender" means each Person executing this Agreement as a Lender
(including, without limitation, the Issuing Lender and the Swingline Lender
unless the context otherwise requires) set forth on the signature pages hereto
and each Person that hereafter becomes a party to this Agreement as a Lender
pursuant to Section 14.10.
"Lender Addition and Acknowledgment Agreement" means each agreement
executed pursuant to Section 2.8 by the Borrower and an existing Lender or a
Person not theretofore a Lender, as applicable, and acknowledged by the
Administrative Agent, providing for an increase in the Revolving Credit
Commitment hereunder, acknowledging that any Person not theretofore a Lender
shall be a party hereto and have the rights and obligations of a Lender
hereunder, and setting forth the Revolving Credit Commitment of each Lender.
"Lending Office" means, with respect to any Lender, the office of such
Lender maintaining such Lender's Commitment Percentage of the Extensions of
Credit.
10
"Letters of Credit" means the collective reference to the standby
letters of credit issued pursuant to Section 3.1 and the Existing Letters of
Credit.
"Leverage Ratio" has the meaning assigned thereto in Section 10.1.
"LIBOR" means the rate of interest per annum determined on the basis of
the rate for deposits in Dollars in minimum amounts of at least $5,000,000 for a
period equal to the applicable Interest Period which appears on the Dow ▇▇▇▇▇
Market Screen 3750 at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period (rounded upward,
if necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does
not appear on Dow ▇▇▇▇▇ Market Screen 3750, then "LIBOR" shall be determined by
the Administrative Agent to be the arithmetic average of the rate per annum at
which deposits in Dollars in minimum amounts of at least $5,000,000 would be
offered by first class banks in the London interbank market to the
Administrative Agent at approximately 11:00 a.m. (London time) two (2) Business
Days prior to the first day of the applicable Interest Period for a period equal
to such Interest Period. Each calculation by the Administrative Agent of LIBOR
shall be conclusive and binding for all purposes, absent manifest error.
"LIBOR Rate" means a rate per annum (rounded upwards, if necessary, to
the next higher 1/100th of 1%) determined by the Administrative Agent pursuant
to the following formula:
LIBOR Rate = LIBOR
__________________________________
1.00-Eurodollar Reserve Percentage
"LIBOR Rate Loan" means any Loan bearing interest at a rate based upon
the LIBOR Rate as provided in Section 5.1(a).
"Lien" means, with respect to any asset, any mortgage, leasehold
mortgage, lien, pledge, charge, security interest, hypothecation or encumbrance
of any kind in respect of such asset. For the purposes of this Agreement, a
Person shall be deemed to own subject to a Lien any asset which it has acquired
or holds subject to the interest of a vendor or lessor under any conditional
sale agreement, Capital Lease or other title retention agreement relating to
such asset.
"Loan Documents" means, collectively, this Agreement, the Notes, the
Applications, the L/C Supporting Documentation, the Guaranty Agreement, the
Collateral Agreement, any other Security Documents, each Joinder Agreement and
each other document, instrument, certificate and agreement executed and
delivered by the Borrower or any Subsidiary thereof in connection with this
Agreement or otherwise contemplated hereby (excluding any Hedging Agreement),
all as may be amended, restated, supplemented or otherwise modified from time to
time.
"Loans" means the collective reference to the Revolving Credit Loans,
the Swingline Loans and the Term Loans.
11
"Material Adverse Effect" means a material adverse effect on (a) the
properties, business, prospects, operations or condition (financial or
otherwise) of the Borrower and its Subsidiaries, taken as a whole or (b) the
ability of the Borrower or any of its Subsidiaries to perform its obligations
under any Loan Document.
"Material Contract" means (a) any contract or other agreement, written
or oral, of the Borrower or any of its Subsidiaries involving monetary liability
of or to any such Person in an amount in excess of $25,000,000 per annum, or (b)
any other contract or agreement, written or oral, of the Borrower or any of its
Restricted Subsidiaries the failure by the Borrower or any of its Restricted
Subsidiaries to comply with which could reasonably be expected to have a
Material Adverse Effect.
"Mortgages" means the collective reference to each deed of trust,
mortgage or other real property security document, encumbering all real property
now or hereafter owned by the Borrower or any Restricted Subsidiary that is a
Domestic Subsidiary (except as otherwise permitted under Section 9.13), in each
case, in form and substance reasonably satisfactory to the Administrative Agent
and executed by the Borrower or any Restricted Subsidiary which is the owner
thereof in favor of the Administrative Agent, for the ratable benefit of itself
and the Lenders, as any such document may be amended, restated, supplemented or
otherwise modified from time to time.
"Mortgage Related Documents" means each of the following, in each case
in form and substance satisfactory to the Administrative Agent:
(a) marked-up commitments for a policy of title insurance, insuring
Lenders' first priority Liens other than for ad valorem taxes not yet due and
payable, with title insurance companies (the "Title Companies") reasonably
acceptable to the Administrative Agent on each of the properties subject to the
Mortgages, with the final title insurance policy being delivered within thirty
(30) days after the date any Mortgage shall be required to be delivered pursuant
to Section 9.13;
(b) any customary affidavits and indemnities in favor of the
Title Companies as may be required or necessary to obtain title insurance
reasonably satisfactory to the Administrative Agent;
(c) copies of all recorded documents creating exceptions
to the title policy referred to in paragraph (a) above;
(d) certification from the National Research Center, or any successor
agency thereto, as to flood hazards regarding each parcel of real property
subject to a Mortgage;
(e) copies of all surveys of each parcel of real property subject to
the Mortgages which are in the possession of the Borrower or any Restricted
Subsidiary as of the date such Mortgage shall be required to be delivered
pursuant to Section 9.13;
(f) copies of all environmental assessments, audits or reports which
are in the possession of the Borrower or any Restricted Subsidiary as of the
date such Mortgage shall be required to be delivered pursuant to Section 9.13;
12
(g) evidence of property and liability insurance on each parcel of real
property subject to a Mortgage in form and substance reasonably acceptable to
the Administrative Agent naming the Administrative Agent as first mortgagee; and
(h) such other certificates, documents and information as are
reasonably requested by the Lenders, including, without limitation, permanent
certificates of occupancy and evidence of zoning.
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is making, or
is accruing an obligation to make, or has accrued an obligation to make
contributions within the preceding six (6) years.
"Net Cash Proceeds" means, as applicable, (a) with respect to any sale
or other disposition of assets, the gross cash proceeds received by the Borrower
or any of its Restricted Subsidiaries from such sale less the sum of (i) all
income taxes and other taxes assessed by a Governmental Authority as a result of
such sale and any other fees and expenses incurred in connection therewith and
(ii) the principal amount of, premium, if any, and interest on any Debt secured
by a Lien on the asset (or a portion thereof) sold, which Debt is required to be
repaid in connection with such sale, (b) with respect to any offering of equity
securities or issuance of Debt (including, without limitation, Subordinated
Debt), the gross cash proceeds received by the Borrower or any of its Restricted
Subsidiaries therefrom less all legal, underwriting and other fees and expenses
incurred in connection therewith and (c) with respect to any payment under an
insurance policy or in connection with a condemnation proceeding, the amount of
cash proceeds received by the Borrower or its Restricted Subsidiaries from an
insurance company or Governmental Authority, as applicable, net of all expenses
of collection; provided, however, that Net Cash Proceeds shall not include any
such cash received by or on behalf of the Borrower or its Restricted
Subsidiaries with respect to any securities convertible into or exchangeable for
capital stock issued to any officer, director or employee with respect to the
Borrower or its Restricted Subsidiaries.
"Net Income" means, with respect to the Borrower and its Restricted
Subsidiaries, for any period of determination, the net income (or loss) for such
period, determined on a Consolidated basis in accordance with GAAP; provided
that there shall be excluded from Net Income (a) the net income (or loss) of any
Person (other than a Subsidiary which shall be subject to clause (c) below), in
which the Borrower or any of its Restricted Subsidiaries has a joint interest
with a third party, except to the extent such net income is actually paid to the
Borrower or any of its Restricted Subsidiaries by dividend or other distribution
during such period (in an amount not to exceed the Borrower's or such Restricted
Subsidiary's share of equity income from such Person), (b) the net income (or
loss) of any Person accrued prior to the date it becomes a Subsidiary of such
Person or is merged into or consolidated with such Person or any of its
Restricted Subsidiaries or that Person's assets are acquired by such Person or
any of its Restricted Subsidiaries except to the extent included pursuant to the
foregoing clause (a), (c) the net income (if positive) of (i) any Restricted
Subsidiary and (ii) any Unrestricted Subsidiary, to the extent such net income
is actually paid to the Borrower or any of its Restricted Subsidiaries by
dividend or other distribution during such period (in an amount not to exceed
the Borrower's or any Restricted Subsidiary's share of the net income from such
Unrestricted Subsidiary), in each case, to the extent that the declaration or
payment of dividends or similar distributions by such Subsidiary to the Borrower
or any of its Restricted Subsidiaries of such net income (i) is not at the time
permitted by operation of the terms of its charter or any agreement, instrument,
judgment, decree, order, statute rule or governmental regulation applicable to
such Subsidiary or (ii) would be subject to any taxes payable on such dividends
or distributions.
13
"Notes" means the collective reference to the Revolving Credit Notes,
the Swingline Note and the Term Notes, and "Note" means any of such Notes.
"Notice of Account Designation" has the meaning assigned thereto in
Section 2.3(b).
"Notice of Borrowing" has the meaning assigned thereto in Section
2.3(a).
"Notice of Conversion/Continuation" has the meaning assigned thereto in
Section 5.2.
"Notice of Prepayment" has the meaning assigned thereto in Section
2.4(c).
"Obligations" means, in each case, whether now in existence or
hereafter arising: (a) the principal of and interest on (including interest
accruing after the filing of any bankruptcy or similar petition) the Loans, (b)
the L/C Obligations, (c) all existing or future payment and other obligations
owing by the Borrower under any Hedging Agreement (which such Hedging Agreement
is permitted hereunder) with any Person that is a Lender hereunder (all such
obligations with respect to any such Hedging Agreement, "Hedging Obligations")
and (d) all other fees and commissions (including attorneys' fees), charges,
indebtedness, loans, liabilities, financial accommodations, obligations,
covenants and duties owing by the Borrower or any of its Subsidiaries to the
Lenders or the Administrative Agent, in each case under or in respect of this
Agreement, any Note, any Letter of Credit or any of the other Loan Documents of
every kind, nature and description, direct or indirect, absolute or contingent,
due or to become due, contractual or tortious, liquidated or unliquidated, and
whether or not evidenced by any note.
"Officer's Compliance Certificate" has the meaning assigned thereto in
Section 8.2.
"Operating Lease" means, as to any Person as determined in accordance
with GAAP, any lease of property (whether real, personal or mixed) by such
Person as lessee which is not a Capital Lease.
"Other Taxes" has the meaning assigned thereto in Section 5.11(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any successor
agency.
"Pension Plan" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to the provisions of Title IV of ERISA or
Section 412 of the Code and which (a) is maintained for the employees of the
Borrower or any ERISA Affiliates or (b) has at any time within the preceding six
(6) years been maintained for the employees of the Borrower or any of its
current or former ERISA Affiliates.
14
"Permitted Acquisition" has the meaning assigned thereto in Section
11.3(j).
"Permitted Acquisition Diligence Information" means with respect to any
acquisition proposed by the Borrower or any Restricted Subsidiary thereof, to
the extent applicable, all financial information, all environmental reports
(including, without limitation, any phase I and, to the extent applicable, phase
II reports), all Material Contracts, all customer lists, all supply agreements,
and all other material information, in each case, requested to be delivered to
the Administrative Agent in connection with such proposed acquisition.
"Permitted Acquisition Documents" means with respect to any acquisition
proposed by the Borrower or any Restricted Subsidiary thereof, the purchase
agreement, sale agreement, merger agreement or other agreement evidencing such
acquisition, including, without limitation, all legal opinions and each other
document executed, delivered, contemplated by or prepared in connection
therewith and any amendment, modification or supplement to any of the foregoing.
"Permitted Franchisee Financing Program" means the franchisee financing
program on substantially the terms disclosed to the Administrative Agent on or
prior to the Closing Date pursuant to which the Borrower will (a) invest in a
nonaffiliate which will provide financing to the Borrower's franchisees, (b)
issue guaranties of the Debt of its franchisees to such Person, (c) sell notes
payable to it by its franchisees to such Person, and (d) enter into certain
transactions ancillary thereto.
"Permitted Sale-Leaseback Transaction" means any sale and leaseback
transaction with any Person providing for the leasing by the Borrower or any of
its Restricted Subsidiaries of real or personal property of (a) existing
restaurant units owned by the Borrower or any Restricted Subsidiary on the
Closing Date and held for resale as set forth on Schedule 1.1(c), or (b) newly
created restaurant units not in existence on the Closing Date, in each case
which has been sold by the Borrower or such Restricted Subsidiary for fair value
for cash consideration only to such Person in an aggregate amount of gross
proceeds for all such sales in any Fiscal Year of the Borrower not to exceed
$115,000,000.
"Permitted Target" means the Person identified by the Borrower in
writing to the Administrative Agent as the "Permitted Target" prior to the
Closing Date.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust, business trust, joint venture, joint stock
company, pool, syndicate, sole proprietorship, unincorporated organization,
Governmental Authority or any other form of entity or group thereof.
"Prime Rate" means, at any time, the rate of interest per annum
publicly announced from time to time by Wachovia as its prime rate. Each change
in the Prime Rate shall be effective as of the opening of business on the day
such change in such prime rate occurs. The parties hereto acknowledge that the
rate announced publicly by Wachovia as its prime rate is an index or base rate
and shall not necessarily be its lowest or best rate charged to its customers or
other banks.
15
"Ratings Downgrade" means either (a) downgrade of the senior unsecured
Debt rating of the Borrower to (i) BB- or less by Standard & Poor's Ratings
Services, a division of The ▇▇-▇▇▇▇-▇▇▇▇ Companies, Inc. and (ii) Ba3 or less by
▇▇▇▇▇'▇ Investors Service, Inc. or (b) a downgrade of the senior unsecured Debt
rating of the Borrower to either (i) a rating less than BB- by Standard & Poor's
Ratings Services, a division of The ▇▇-▇▇▇▇-▇▇▇▇ Companies, Inc. or (ii) a
rating less than Ba3 by ▇▇▇▇▇'▇ Investors Service, Inc.
"Register" has the meaning assigned thereto in Section 14.10(d).
"Reimbursement Obligation" means the obligation of the Borrower to
reimburse the Issuing Lender pursuant to Section 3.5 for amounts drawn under
Letters of Credit.
"Rental Expense" means, with respect to the Borrower and its Restricted
Subsidiaries for any period, all rental expenses with respect to Operating
Leases (including, without limitation, any rental expenses incurred in
connection with a sale-leaseback transaction) of the Borrower and its
Subsidiaries for such period, determined on a Consolidated basis in accordance
with GAAP.
"Replaced Lender" has the meaning assigned thereto in Section 5.12(c).
"Replacement Lender" has the meaning assigned thereto in Section
5.12(c).
"Required Lenders" means, at any date, (a) any combination of Lenders
holding at least fifty-one percent (51%) of the Revolving Credit Commitments at
such time (or, if such Commitments have been terminated pursuant to Section
12.2, any combination of Lenders holding at least fifty-one (51%) of the
Revolving Credit Loans at such time) and (b) any combination of Lenders holding
at least fifty-one percent (51%) of the Term Loans at such time.
"Responsible Officer" means any of the following: the chief executive
officer, chief financial officer or treasurer of the Borrower or any other
officer of the Borrower reasonably acceptable to the Administrative Agent.
"Restricted Subsidiary" means any Subsidiary of the Borrower that is
not an Unrestricted Subsidiary.
"Revolving Credit Commitment" means (a) as to any Lender, the
obligation of such Lender to make Revolving Credit Loans to and issue or
participate in Letters of Credit issued for the account of the Borrower
hereunder in an aggregate principal amount at any time outstanding not to exceed
the amount set forth opposite such Lender's name on the Register, as such amount
may be reduced or modified at any time or from time to time pursuant to the
terms hereof, and (b) as to all Lenders, the aggregate commitment of all Lenders
to make Revolving Credit Loans and issue and participate in Letters of Credit,
as such amount may be reduced or increased at any time or from time to time
pursuant to the terms hereof. The Revolving Credit Commitment of all Lenders on
the Closing Date shall be Two Hundred Million Dollars ($200,000,000), subject to
increase as permitted under Section 2.8.
16
"Revolving Credit Commitment Percentage" means, as to any Lender at any
time, the ratio of (a) the amount of the Revolving Credit Commitment of such
Lender to (b) the Revolving Credit Commitments of all Lenders.
"Revolving Credit Facility" means the revolving credit facility
established pursuant to Article II.
"Revolving Credit Loan" means any revolving credit loan made to the
Borrower pursuant to Section 2.1, and all such revolving credit loans
collectively as the context requires.
"Revolving Credit Maturity Date" means the earliest of the dates
referred to in Section 2.7.
"Revolving Credit Notes" means the collective reference to the
Revolving Credit Notes, if any, made by the Borrower payable to the order of
each Lender holding a Revolving Credit Commitment, substantially in the form of
Exhibit A-1 hereto, evidencing the Revolving Credit Facility, and any
amendments, supplements and modifications thereto, any substitutes therefor, and
any replacements, restatements, renewals or extension thereof, in whole or in
part.
"Security Documents" means the collective reference to the Guaranty
Agreement, the Collateral Agreement, the Mortgages (if applicable) and each
other agreement or writing pursuant to which the Borrower or any Restricted
Subsidiary thereof purports to pledge or grant a security interest in any
property or assets securing the Obligations or any such Person purports to
guaranty the payment and/or performance of the Obligations, in each case, as
amended, restated, supplemented or otherwise modified from time to time.
"Solvent" means, as to the Borrower and its Restricted Subsidiaries on
a particular date, that any such Person (a) has capital sufficient to carry on
its business and transactions and all business and transactions in which it is
about to engage and is able to pay its debts as they mature, (b) owns property
having a value, both at fair valuation and at present fair saleable value,
greater than the amount required to pay its probable liabilities (including
contingencies), and (c) does not believe that it will incur debts or liabilities
beyond its ability to pay such debts or liabilities as they mature.
"Subordinated Debt" means the collective reference to any Debt of the
Borrower or any Restricted Subsidiary subordinated in right and time of payment
to the Obligations with a maturity no earlier than a date that is six (6) months
after the Term Loan Maturity Date and containing such other terms and conditions
(including, without limitation, the subordination terms), in each case as are
satisfactory to the Administrative Agent.
"Subsidiary" means as to any Person, any corporation, partnership,
limited liability company or other entity of which more than fifty percent (50%)
of the outstanding capital stock or other ownership interests having ordinary
voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at
the time owned by or the management is otherwise controlled by such Person
(irrespective of whether, at the time, capital stock or other ownership
interests of any other class or classes of such corporation, partnership,
limited liability company or other entity shall have or might have voting power
by reason of the happening of any contingency). Unless otherwise qualified,
references to "Subsidiary" or "Subsidiaries" herein shall refer to those of the
17
Borrower; provided that, notwithstanding the foregoing, the Unrestricted
Subsidiaries shall not be deemed to be Subsidiaries for the purposes of Articles
X and XI of this Agreement; provided, further, that the Permitted Target shall
not be deemed to be a Subsidiary of the Borrower for any purposes under this
Agreement (except for Articles X and XI (other than Sections 11.1 and 11.2) and
the definitions related thereto) until a date no more than 30 days after the
Closing Date, by which the Borrower will cause the Permitted Target to comply
with the terms of Section 9.11(a).
"Swingline Commitment" means the lesser of (a) Fifteen Million Dollars
($15,000,000) and (b) the Revolving Credit Commitment.
"Swingline Facility" means the swingline facility established pursuant
to Section 2.2.
"Swingline Lender" means Wachovia in its capacity as swingline lender
hereunder.
"Swingline Loan" means any swingline loan made by the Swingline Lender
to the Borrower pursuant to Section 2.2, and all such swingline loans
collectively as the context requires.
"Swingline Note" means the Swingline Note made by the Borrower payable
to the order of the Swingline Lender, substantially in the form of Exhibit A-2
hereto, evidencing the Swingline Loans, and any amendments, supplements and
modifications thereto, any substitutes therefor, and any replacements,
restatements, renewals or extensions thereof, in whole or in part.
"Swingline Termination Date" means the first to occur of (a) the
resignation of Wachovia as Administrative Agent in accordance with Section 13.9
and (b) the Revolving Credit Maturity Date.
"Synthetic Lease" means any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet financing product
where such transaction is considered borrowed money indebtedness for tax
purposes but is classified as an Operating Lease in accordance with GAAP.
"Tangible Net Worth" shall mean the amount of assets of the Borrower
and its Restricted Subsidiaries shown on the Consolidated balance sheet of the
Borrower and its Subsidiaries (but excluding from such assets any items which
would be treated as intangibles under GAAP, including, but not limited to
capitalized interest, debt discount and expense, goodwill, patents, trademarks,
copyrights, licenses, and franchises), less all liabilities of the Borrower and
its Restricted Subsidiaries, all computed in accordance with GAAP applied on a
consistent basis.
"Taxes" has the meaning assigned thereto in Section 5.11(a).
"Term Loan Commitment" means (a) as to any Lender, the obligation of
such Lender to make the Term Loans to the account of the Borrower hereunder in
an aggregate principal amount not to exceed the amount set forth opposite such
Lender's name on the Register, as such amount may be reduced or otherwise
modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Lenders, the aggregate commitment to make Term Loans. The Term Loan
Commitment of all Lenders as of the Closing Date shall be One Hundred Fifty
Million Dollars ($150,000,000).
"Term Loan Facility" shall mean the term loan facility established
pursuant to Article IV.
18
"Term Loan Maturity Date" means the first to occur of (a) July 23,
2007, or (b) the date of termination by the Administrative Agent on behalf of
the Lenders pursuant to Section 12.2(a).
"Term Loan Percentage" means, as to any Lender, (a) prior to making the
Term Loans, the ratio of (i) the Term Loan Commitment of such Lender to (ii) the
Term Loan Commitments of all Lenders and (b) after the Term Loans are made, the
ratio of (i) the outstanding principal balance of the Term Loan of such Lender
to (ii) the aggregate outstanding principal balance of the Term Loans of all
Lenders.
"Term Loans" shall mean the term loans to be made to the Borrower by
the Lenders pursuant to Section 4.1.
"Term Notes" means the Term Notes made by the Borrower payable to the
order of each of the Lenders, substantially in the form of Exhibit A-3 hereto,
evidencing the Debt incurred by the Borrower pursuant to the Term Loan Facility,
and any amendments, modifications and supplements thereto, any substitute
therefor, and any replacement, restatements, renewals or extensions thereof, in
whole or in part.
"Termination Event" means except for any such event or condition that
could not reasonably be expected to have a Material Adverse Effect: (a) a
"Reportable Event" described in Section 4043 of ERISA for which the notice
requirement has not been waived by the PBGC, or (b) the withdrawal of the
Borrower or any ERISA Affiliate from a Pension Plan during a plan year in which
it was a "substantial employer" as defined in Section 4001(a)(2) of ERISA, or
(c) the termination of a Pension Plan, the filing of a notice of intent to
terminate a Pension Plan or the treatment of a Pension Plan amendment as a
termination, under Section 4041 of ERISA, if the plan assets are not sufficient
to pay all plan liabilities, or (d) the institution of proceedings to terminate,
or the appointment of a trustee with respect to, any Pension Plan by the PBGC,
or (e) any other event or condition which would constitute grounds under Section
4042(a) of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan, or (f) the imposition of a Lien pursuant to
Section 412 of the Code or Section 302 of ERISA, or (g) the partial or complete
withdrawal of the Borrower or any ERISA Affiliate from a Multiemployer Plan if
withdrawal liability is asserted by such plan, or (h) any event or condition
which results in the reorganization or insolvency of a Multiemployer Plan under
Sections 4241 or 4245 of ERISA, or (i) any event or condition which results in
the termination of a Multiemployer Plan under Section 4041A of ERISA or the
institution by PBGC of proceedings to terminate a Multiemployer Plan under
Section 4042 of ERISA.
"Uniform Customs" means the Uniform Customs and Practice for
Documentary Credits (1993 Revision), effective January, 1994 International
Chamber of Commerce Publication No. 500.
19
"UCC" means the Uniform Commercial Code as in effect in the State of
New York, as amended or modified from time to time.
"United States" means the United States of America.
"Unrestricted Subsidiary" means any Subsidiary of the Borrower listed
on Schedule 1.1(b) or which is designated as an Unrestricted Subsidiary after
the Closing Date pursuant to Section 9.11, provided that at all times such (a)
Unrestricted Subsidiary's obligations are non-recourse to the Borrower and its
Subsidiaries and (b) Unrestricted Subsidiary individually and collectively with
all other Unrestricted Subsidiaries meets the requirements set forth in Section
9.11.
"Wachovia" means Wachovia Bank, National Association, a national
banking association, and its successors.
"Wholly-Owned" means, with respect to a Subsidiary, that all of the
shares of capital stock or other ownership interests of such Subsidiary are,
directly or indirectly, owned or controlled by the Borrower and/or one or more
of its Wholly-Owned Subsidiaries (except for directors' qualifying shares or
other shares required by Applicable Law to be owned by a Person other than the
Borrower).
"Working Capital" means, for any period of determination, current
assets minus current liabilities (excluding any principal payments associated
with the Revolving Credit Loans), all determined in accordance with GAAP.
SECTION 1.2 General. Unless otherwise specified, a reference in this
Agreement to a particular article, section, subsection, Schedule or Exhibit is a
reference to that article, section, subsection, Schedule or Exhibit of this
Agreement. Wherever from the context it appears appropriate, each term stated in
either the singular or plural shall include the singular and plural, and
pronouns stated in the masculine, feminine or neuter gender shall include the
masculine, the feminine and the neuter. Any reference herein to "Charlotte time"
shall refer to the applicable time of day in Charlotte, North Carolina.
SECTION 1.3 Other Definitions and Provisions.
(a) Use of Capitalized Terms. Unless otherwise defined therein, all
capitalized terms defined in this Agreement shall have the defined meanings when
used in this Agreement, the Notes and the other Loan Documents or any
certificate, report or other document made or delivered pursuant to this
Agreement.
(b) Miscellaneous. The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement.
(c) Plural and Singular. The meanings of defined terms are
generally applicable to the singular and plural forms of the defined terms.
20
ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1 Revolving Credit Loans. Subject to the terms and conditions
of this Agreement, and in reliance upon the representations and warranties set
forth herein, each Lender severally agrees to make Revolving Credit Loans to the
Borrower from time to time from the Closing Date through, but not including, the
Revolving Credit Maturity Date as requested by the Borrower in accordance with
the terms of Section 2.3; provided, that (a) the aggregate principal amount of
all outstanding Revolving Credit Loans (after giving effect to any amount
requested) shall not exceed the Revolving Credit Commitment less the sum of all
outstanding Swingline Loans and L/C Obligations and (b) the principal amount of
outstanding Revolving Credit Loans from any Lender to the Borrower shall not at
any time exceed such Lender's Revolving Credit Commitment less such Lender's
Revolving Credit Commitment Percentage of outstanding L/C Obligations and
outstanding Swingline Loans. Each Revolving Credit Loan by a Lender shall be in
a principal amount equal to such Lender's Revolving Credit Commitment Percentage
of the aggregate principal amount of Revolving Credit Loans requested on such
occasion. Subject to the terms and conditions hereof, the Borrower may borrow,
repay and reborrow Revolving Credit Loans hereunder until the Revolving Credit
Maturity Date.
SECTION 2.2 Swingline Loans.
(a) Availability. Subject to the terms and conditions of this
Agreement, the Swingline Lender agrees to make Swingline Loans to the Borrower
from time to time from the Closing Date through, but not including, the
Swingline Termination Date; provided, that the aggregate principal amount of all
outstanding Swingline Loans (after giving effect to any amount requested), shall
not exceed the lesser of (i) the Revolving Credit Commitment less the sum of all
outstanding Revolving Credit Loans and the L/C Obligations and (ii) the
Swingline Commitment; provided further that the Swingline Lender will not make a
Swingline Loan from and after the date which is one (1) day after it has
received written notice from the Administrative Agent (upon the request of the
Required Lenders) that one or more of the applicable conditions to Extensions of
Credit specified in Section 6.3 is not then satisfied until such conditions are
satisfied or waived in accordance with the provisions of this Agreement (and the
Swingline Lender shall be entitled to conclusively rely on any such notice and
shall have no obligation to independently investigate the accuracy of such
notice and shall have no liability to the Borrower in respect thereof if such
notice proves to be inaccurate).
(b) Refunding.
(i) Swingline Loans shall be refunded by the Lenders with a
Revolving Credit Commitment on demand by the Swingline Lender. Such refundings
shall be made by the Lenders in accordance with their respective Revolving
Credit Commitment Percentages and shall thereafter be reflected as Revolving
Credit Loans of the Lenders on the books and records of the Administrative
21
Agent. Each Lender shall fund its respective Revolving Credit Commitment
Percentage of Revolving Credit Loans as required to repay Swingline Loans
outstanding to the Swingline Lender upon demand by the Swingline Lender but in
no event later than 3:00 p.m. (Charlotte time) on the next succeeding Business
Day after such demand is made. No Lender's obligation to fund its respective
Revolving Credit Commitment Percentage of a Swingline Loan shall be affected by
any other Lender's failure to fund its Revolving Credit Commitment Percentage of
a Swingline Loan, nor shall any Lender's Revolving Credit Commitment Percentage
be increased as a result of any such failure of any other Lender to fund its
Revolving Credit Commitment Percentage of a Swingline Loan.
(ii) The Borrower shall pay to the Swingline Lender on demand
the amount of such Swingline Loans to the extent amounts received from the
Lenders are not sufficient to repay in full the outstanding Swingline Loans
requested or required to be refunded. In addition, the Borrower hereby
authorizes the Administrative Agent to charge any account maintained by the
Borrower with the Swingline Lender (up to the amount available therein) in order
to immediately pay the Swingline Lender the amount of such Swingline Loans to
the extent amounts received from the Lenders are not sufficient to repay in full
the outstanding Swingline Loans requested or required to be refunded. If any
portion of any such amount paid to the Swingline Lender shall be recovered by or
on behalf of the Borrower from the Swingline Lender in bankruptcy or otherwise,
the loss of the amount so recovered shall be ratably shared among all the
Lenders in accordance with their respective Revolving Credit Commitment
Percentages (unless the amounts so recovered by or on behalf of the Borrower
pertain to a Swingline Loan extended after the occurrence and during the
continuance of an Event of Default of which the Administrative Agent has
received notice in the manner required pursuant to Section 13.5 and which such
Event of Default has not been waived by the Required Lenders or the Lenders, as
applicable).
(iii) Each Lender with a Revolving Credit Commitment
acknowledges and agrees that its obligation to refund Swingline Loans in
accordance with the terms of this Section 2.2 is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without
limitation, non-satisfaction of the conditions set forth in Article VI. Further,
each Lender agrees and acknowledges that if prior to the refunding of any
outstanding Swingline Loans pursuant to this Section 2.2, one of the events
described in Section 12.1(j) or (k) shall have occurred, each Lender will, on
the date the applicable Revolving Credit Loan would have been made, purchase an
undivided participating interest in the Swingline Loan to be refunded in an
amount equal to its Revolving Credit Commitment Percentage of the aggregate
amount of such Swingline Loan. Each Lender will immediately transfer to the
Swingline Lender, in immediately available funds, the amount of its
participation and upon receipt thereof the Swingline Lender will deliver to such
Lender a certificate evidencing such participation dated the date of receipt of
such funds and for such amount. Whenever, at any time after the Swingline Lender
has received from any Lender such Lender's participating interest in a Swingline
Loan, the Swingline Lender receives any payment on account thereof, the
Swingline Lender will distribute to such Lender its participating interest in
such amount (appropriately adjusted, in the case of interest payments, to
reflect the period of time during which such Lender's participating interest was
outstanding and funded).
SECTION 2.3 Procedure for Advances of Revolving Credit and Swingline
Loans.
(a) Requests for Borrowing. The Borrower shall give the Administrative
Agent irrevocable prior written notice substantially in the form attached hereto
22
as Exhibit B (a "Notice of Borrowing") not later than 2:00 p.m. (Charlotte time)
(i) on the same Business Day as each Base Rate Loan and each Swingline Loan and
(ii) at least three (3) Business Days before each LIBOR Rate Loan, of its
intention to borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, (B) the amount of such borrowing, which shall be (x) with respect
to Base Rate Loans (other than Swingline Loans) in an aggregate principal amount
of $1,000,000 or a whole multiple of $500,000 in excess thereof, (y) with
respect to LIBOR Rate Loans in an aggregate principal amount of $5,000,000 or a
whole multiple of $1,000,000 in excess thereof and (z) with respect to Swingline
Loans in an aggregate principal amount of $100,000 or a whole multiple of
$100,000 in excess thereof, (C) whether such Loan is to be a Revolving Credit
Loan or Swingline Loan, (D) in the case of a Revolving Credit Loan whether the
Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E) in the case of a
LIBOR Rate Loan, the duration of the Interest Period applicable thereto. A
Notice of Borrowing received after 2:00 p.m. (Charlotte time) shall be deemed
received on the next Business Day. The Administrative Agent shall promptly
notify the Lenders of each Notice of Borrowing.
(b) Disbursement of Revolving Credit and Swingline Loans. Not later
than 3:00 p.m. (Charlotte time) on the proposed borrowing date, (i) each Lender
will make available to the Administrative Agent, for the account of the
Borrower, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lender's Revolving Credit Commitment
Percentage of the Revolving Credit Loans to be made on such borrowing date and
(ii) the Swingline Lender will make available to the Administrative Agent, for
the account of the Borrower, at the office of the Administrative Agent in funds
immediately available to the Administrative Agent, the Swingline Loans to be
made on such borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each borrowing requested
pursuant to this Section 2.3 in immediately available funds by crediting or
wiring such proceeds to the deposit account of the Borrower identified in the
most recent notice substantially in the form of Exhibit C hereto (a "Notice of
Account Designation") delivered by the Borrower to the Administrative Agent or
as may be otherwise agreed upon by the Borrower and the Administrative Agent
from time to time. Subject to Section 5.7 hereof, the Administrative Agent shall
not be obligated to disburse the portion of the proceeds of any Revolving Credit
Loan requested pursuant to this Section 2.3 to the extent that any Lender has
not made available to the Administrative Agent its Revolving Credit Commitment
Percentage of such Loan. Revolving Credit Loans to be made for the purpose of
refunding Swingline Loans shall be made by the Lenders as provided in Section
2.2(b).
SECTION 2.4 Repayment of Loans.
(a) Repayment on Termination Date. The Borrower hereby agrees to repay
the outstanding principal amount of (i) all Revolving Credit Loans in full on
the Revolving Credit Maturity Date, and (ii) all Swingline Loans in accordance
with Section 2.2(b), together, in each case, with all accrued but unpaid
interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans. If at any time the
outstanding principal amount of all Revolving Credit Loans plus the sum of all
outstanding Swingline Loans and L/C Obligations exceeds the Revolving Credit
Commitment, the Borrower agrees to repay immediately upon notice from the
Administrative Agent, by payment to the Administrative Agent for the account of
the Lenders an amount equal to such excess, with each such repayment applied
first to the principal amount of outstanding Swingline Loans, second to the
principal amount of outstanding Revolving Credit Loans and third, with respect
23
to any Letters of Credit then outstanding, a payment of cash collateral into a
cash collateral account opened by the Administrative Agent, for the benefit of
the Lenders in an amount equal to the aggregate then undrawn and unexpired
amount of such Letters of Credit (such cash collateral to be applied in
accordance with Section 12.2(b)).
(c) Optional Repayments. The Borrower may at any time and from time to
time repay the Loans, in whole or in part, upon at least (i) three (3) Business
Days' irrevocable notice to the Administrative Agent with respect to LIBOR Rate
Loans (ii) one (1) Business Day irrevocable notice with respect to Base Rate
Loans and (iii) same day notice by 2:00 p.m. (Charlotte time) with respect to
Swingline Loans, substantially in the form attached hereto as Exhibit D (a
"Notice of Prepayment") specifying the date and amount of repayment and whether
the repayment is of LIBOR Rate Loans, Base Rate Loans, Swingline Loans or a
combination thereof, and, if of a combination thereof, the amount allocable to
each. Upon receipt of such notice, the Administrative Agent shall promptly
notify each Lender. If any such notice is given, the amount specified in such
notice shall be due and payable on the date set forth in such notice. Partial
repayments shall be in an aggregate amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof with respect to Base Rate Loans (other than Swingline
Loans), $5,000,000 or a whole multiple of $1,000,000 in excess thereof with
respect to LIBOR Rate Loans and $100,000 or a whole multiple of $100,000 in
excess thereof with respect to Swingline Loans. Each such repayment shall be
accompanied by an amount required to be paid pursuant to Section 5.9 hereof.
(d) Limitation on Repayment of LIBOR Rate Loans. The Borrower may not
repay any LIBOR Rate Loan on any day other than on the last day of the Interest
Period applicable thereto unless such repayment is accompanied by any amount
required to be paid pursuant to Section 5.9 hereof.
(e) Hedging Agreements. No repayment or prepayment pursuant
to this Section 2.4 shall affect any of the Borrower's obligations under any
Hedging Agreement.
SECTION 2.5 Notes.
(a) Revolving Credit Notes. Except as otherwise provided in Section
14.10 (a)-(e), each Lender's Revolving Credit Loans and the obligation of the
Borrower to repay such Revolving Credit Loans shall, upon the request of such
Lender, be evidenced by a separate Revolving Credit Note executed by the
Borrower payable to the order of such Lender.
(b) Swingline Notes. The Swingline Loans and the obligation
of the Borrower to repay such Swingline Loans shall be evidenced by a
Swingline Note executed by the Borrower payable to the order of the
Swingline Lender.
24
SECTION 2.6 Permanent Reduction of the Revolving Credit Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any time
and from time to time, upon at least five (5) Business Days prior written notice
to the Administrative Agent, to permanently reduce, without premium or penalty,
(i) the entire Revolving Credit Commitment at any time or (ii) portions of the
Revolving Credit Commitment, from time to time, in an aggregate principal amount
not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
The amount of each partial permanent reduction shall be applied pro rata to
reduce the remaining mandatory reduction amounts required under Section 2.6(b),
and such reduction shall permanently reduce the Lenders' Revolving Credit
Commitments pro rata in accordance with their respective Revolving Credit
Commitment Percentages.
(b) Mandatory Reduction. If at any time proceeds ("Excess Proceeds")
remain after the prepayment in full of Term Loans pursuant to Section 4.4(b),
the Revolving Credit Commitment shall be permanently reduced on the date of the
required prepayment under Section 4.4(b) by an amount equal to the amount of
such Excess Proceeds.
(c) Corresponding Payment. Each permanent reduction permitted or
required pursuant to this Section 2.6 shall be accompanied by a payment of
principal, first to the principal amount of outstanding Swingline Loans, second
to the principal amount of outstanding Revolving Credit Loans and third, to any
Letters of Credit then outstanding, in each case sufficient to reduce the
aggregate outstanding Revolving Credit Loans, Swingline Loans and L/C
Obligations, as applicable, after such reduction to the Revolving Credit
Commitment as so reduced and if the Revolving Credit Commitment as so reduced is
less than the aggregate amount of all outstanding Letters of Credit, the
Borrower shall be required to deposit cash collateral in a cash collateral
account opened by the Administrative Agent in an amount equal to the aggregate
then undrawn and unexpired amount of such Letters of Credit. Such cash
collateral shall be applied in accordance with Section 12.2(b). Any reduction of
the Revolving Credit Commitment to zero shall be accompanied by payment of all
outstanding Revolving Credit Loans and Swingline Loans (and furnishing of cash
collateral satisfactory to the Administrative Agent for all L/C Obligations) and
shall result in the termination of the Revolving Credit Commitment and the
Swingline Commitment and the Revolving Credit Facility. Such cash collateral
shall be applied in accordance with Section 12.2(b). If the reduction of the
Revolving Credit Commitment requires the repayment of any LIBOR Rate Loan, such
repayment shall be accompanied by any amount required to be paid pursuant to
Section 5.9.
SECTION 2.7 Termination of Revolving Credit Facility. The Revolving
Credit Facility shall terminate on the earliest of (a) January 22, 2006, (b) the
date of termination by the Borrower pursuant to Section 2.6 of the entire
Revolving Credit Commitment, or (c) the date of termination by the
Administrative Agent on behalf of the Lenders pursuant to Section 12.2(a).
SECTION 2.8 Increase of Revolving Credit Commitment. So long as no
Default or Event of Default shall have occurred and be continuing, at any time
prior to the Revolving Credit Maturity Date, the Borrower shall have the right
from time to time upon not less than thirty (30) days' prior written notice to
the Administrative Agent to increase the Revolving Credit Commitment; provided
that (i) no Lender shall have any obligation to increase its Revolving Credit
25
Commitment and the failure by any Lender to respond to a request for such
increase shall be deemed to be a refusal of such request by such Lender, (ii)
the Borrower shall only be permitted to request such an increase on one (1)
occasion, (iii) such requested increase shall be in a minimum principal amount
of $25,000,000, (iv) in no event shall the Revolving Credit Commitment be
increased to an aggregate amount greater than Two Hundred Twenty-Five Million
Dollars ($225,000,000), (v) in no event shall the aggregate amount of increases
requested pursuant to this Section 2.8 exceed Twenty-Five Million Dollars
($25,000,000), (vi) the Borrower and an existing Lender or a Person not
theretofore a Lender, as applicable, shall execute a Lender Addition and
Acknowledgement Agreement, which shall be acknowledged by the Administrative
Agent and each Guarantor and shall be in form and substance reasonably
satisfactory to the Administrative Agent, and (vii) the Administrative Agent
shall have received a resolution duly adopted by the Board of Directors of the
Borrower authorizing the increase contemplated in this Section 2.8.
(a) Any increase in the Revolving Credit Commitment which is
accomplished by increasing the Revolving Credit Commitment of any Lender or
Lenders who are at the time of such increase party to this Agreement (which
Lender or Lenders shall consent to such increase in their sole and absolute
discretion) shall be accomplished as follows: (i) this Agreement will be amended
by the Borrower, the Administrative Agent and those Lender(s) whose
Commitment(s) is or are being increased (but without any requirement that the
consent of any other Lenders be obtained) to reflect the revised Revolving
Credit Commitment of each of the Lenders, (ii) the Administrative Agent will
update the Register to reflect the revised Revolving Credit Commitment and
Revolving Credit Commitment Percentage of each of the Lenders, (iii) the
outstanding Revolving Credit Loans and Revolving Credit Commitment Percentages
of L/C Obligations and Swingline Loans will be reallocated on the effective date
of such increase among the Lenders in accordance with their revised Revolving
Credit Commitment Percentages (and the Lenders agree to make all payments and
adjustments necessary to effect the reallocation and the Borrower shall pay any
and all costs required pursuant to Section 5.9 in connection with such
reallocation as if such reallocation were a repayment) and (iv) if requested,
the Borrower will deliver new Revolving Credit Note(s) to the Lender or Lenders
whose Commitment(s) is or are being increased reflecting the revised Revolving
Credit Commitment amount of such Lender(s);
(b) Any increase in the Revolving Credit Commitment which is
accomplished by addition of a new Lender under this Agreement shall be
accomplished as follows: (i) such new Lender shall be subject to the consent of
the Administrative Agent and the Borrower, which consent shall not be
unreasonably withheld, (ii) this Agreement will be amended by the Borrower, the
Administrative Agent and such new Lender (but without any requirement that the
consent of any other Lenders be obtained) to reflect the addition of such new
Lender as a Lender hereunder, (iii) the Administrative Agent will update the
Register to reflect the revised Revolving Credit Commitment and Revolving Credit
Commitment Percentage of each of the Lenders, (iv) the outstanding Revolving
Credit Loans and Revolving Credit Commitment Percentages of L/C Obligations and
Swingline Loans will be reallocated on the effective date of such increase among
the Lenders in accordance with their revised Revolving Credit Commitment
Percentages (and the Lenders agree to make all payments and adjustments
necessary to effect the reallocation and the Borrower shall pay any and all
costs required pursuant to Section 5.9 in connection with such reallocation as
if such reallocation were a repayment) and (v) if requested the Borrower will
deliver a Revolving Credit Note to such new Lender; and
26
(c) Notwithstanding anything to the contrary contained in this
Agreement, upon any voluntary reduction of the Revolving Credit Commitment
pursuant to Section 2.6, the Borrower shall no longer have the option to request
an increase in the Revolving Credit Commitment pursuant to this Section 2.8.
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1 L/C Commitment. Subject to the terms and conditions hereof,
the Issuing Lender, in reliance on the agreements of the L/C Participants set
forth in Section 3.4(a), agrees to issue standby letters of credit ("Letters of
Credit") for the account of the Borrower on any Business Day from the Closing
Date through but not including the fifth (5th) Business Day prior to the
Revolving Credit Maturity Date in such form as may be approved from time to time
by the Issuing Lender and the Administrative Agent; provided, that the Issuing
Lender shall have no obligation to issue, and the L/C Participants shall have no
obligation to participate in, any Letter of Credit if, after giving effect to
such issuance, (a) the L/C Obligations would exceed the L/C Commitment or (b)
the aggregate principal amount of outstanding Revolving Credit Loans, plus the
aggregate principal amount of outstanding Swingline Loans, plus the aggregate
amount of L/C Obligations would exceed the Revolving Credit Commitment. Each
Letter of Credit (other than the Existing Letters of Credit) shall (i) be in a
minimum amount of $25,000 unless otherwise agreed to by the Issuing Lender, (ii)
be a standby letter of credit issued to support obligations of the Borrower or
any of its Restricted Subsidiaries, contingent or otherwise, incurred in the
ordinary course of business, (iii) expire on a date satisfactory to the Issuing
Lender and the Administrative Agent, which date shall be no later than the
earlier of (A) one (1) year after the date of its issuance (but any Letter of
Credit issued hereunder may, by its terms and consistent with the terms hereof,
be renewable annually with the consent of the Issuing Bank), and (B) the fifth
(5th) Business Day prior to the Revolving Credit Maturity Date and (iv) be
subject to the Uniform Customs and/or ISP98, as set forth in the Application or
as determined by the Issuing Lender and, to the extent not inconsistent
therewith, the laws of the State of New York. As of the Closing Date, each of
the Existing Letters of Credit shall constitute, for all purposes of this
Agreement and the other Loan Documents, a Letter of Credit issued and
outstanding hereunder. The Issuing Lender shall not at any time be obligated to
issue, and the L/C Participants shall have no obligation to participate in, any
Letter of Credit hereunder if such issuance would conflict with, or cause the
Issuing Lender or any L/C Participant to exceed any limits imposed by, any
Applicable Law. References herein to "issue" and derivations thereof with
respect to Letters of Credit shall also include extensions or modifications of
any existing Letters of Credit, unless the context otherwise requires.
SECTION 3.2 Procedure for Issuance of Letters of Credit. The Borrower
may from time to time request that the Issuing Lender issue a Letter of Credit
by delivering to the Issuing Lender an Application therefor, completed to the
satisfaction of the Issuing Lender, and such other certificates, documents and
other papers and information ("L/C Supporting Documentation") as the Issuing
Lender and the Administrative Agent may request. The Borrower will
contemporaneously deliver to the Administrative Agent at the Administrative
27
Agent's Office a copy of such Application and L/C Supporting Documentation. Upon
receipt of any Application, the Issuing Lender shall process such Application
and the L/C Supporting Documentation delivered to it in connection therewith in
accordance with its customary procedures and shall, after approving the same and
receiving confirmation from the Administrative Agent that sufficient
availability exists under the Revolving Credit Facility for issuance of such
Letter of Credit, subject to Section 3.1 and Article VI hereof, promptly issue
the Letter of Credit requested thereby (but in no event shall the Issuing Lender
be required to issue any Letter of Credit earlier than three (3) Business Days
after its receipt of the Application therefor and all L/C Supporting
Documentation relating thereto) by issuing the original of such Letter of Credit
to the beneficiary thereof or as otherwise may be agreed by the Issuing Lender
and the Borrower; provided that the Issuing Lender shall not issue a Letter of
Credit from and after the date which is one (1) day after it has received
written notice from the Administrative Agent (upon the request of the Required
Lenders) that one or more of the applicable conditions to Extensions of Credit
specified in Section 6.3 is not then satisfied until such conditions are
satisfied or waived in accordance with the provisions of this Agreement (and the
Issuing Lender shall be entitled to conclusively rely on any such notice and
shall have no obligation to independently investigate the accuracy of such
notice and shall have no liability to the Borrower in respect thereof if such
notice proves to be inaccurate). The Issuing Lender shall promptly furnish to
the Borrower and the Administrative Agent a copy of such Letter of Credit and
promptly notify each Lender of the issuance and upon request by any Lender,
furnish to such Lender a copy of such Letter of Credit and the amount of such
Lender's participation therein.
SECTION 3.3 Commissions and Other Charges.
(a) The Borrower shall pay to the Administrative Agent, for the account
of the Issuing Lender and the L/C Participants, a letter of credit commission
with respect to each Letter of Credit in an amount equal to the face amount of
such Letter of Credit multiplied by the Applicable Margin with respect to
Revolving Credit Loans that are LIBOR Rate Loans (determined on a per annum
basis). Such commission shall be payable quarterly in arrears on the last
Business Day of each calendar quarter and on the Revolving Credit Maturity Date.
The Administrative Agent shall, promptly following its receipt thereof,
distribute to the Issuing Lender and the L/C Participants all commissions
received pursuant to this Section 3.3(a) in accordance with their respective
Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the Borrower shall pay the
Issuing Lender, for its own account, an issuance fee with respect to each Letter
of Credit in an amount equal to the face amount of such Letter of Credit
multiplied by one-eighth of one percent (.125%) per annum. Such issuance fee
shall be billed by the Issuing Lender and shall be payable by the Borrower in
equal quarterly payments, in arrears, on the last Business Day of each calendar
quarter and on the Revolving Credit Maturity Date.
(c) In addition to the foregoing fees and commissions, the Borrower
shall pay or reimburse the Issuing Lender for such normal and customary costs
and expenses as are incurred or charged by the Issuing Lender in issuing,
effecting payment under, amending or otherwise administering any Letter of
Credit.
28
SECTION 3.4 L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to
each L/C Participant, and, to induce the Issuing Lender to issue Letters of
Credit hereunder, each L/C Participant irrevocably agrees to accept and purchase
and hereby accepts and purchases from the Issuing Lender, on the terms and
conditions hereinafter stated, for such L/C Participant's own account and risk
an undivided interest equal to such L/C Participant's Revolving Credit
Commitment Percentage in the Issuing Lender's obligations and rights under and
in respect of each Letter of Credit issued hereunder and the amount of each
draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft
is paid under any Letter of Credit for which the Issuing Lender is not
reimbursed in full by the Borrower through a Revolving Credit Loan or otherwise
in accordance with the terms of this Agreement, such L/C Participant shall pay
to the Issuing Lender upon demand at the Issuing Lender's address for notices
specified herein an amount equal to such L/C Participant's Revolving Credit
Commitment Percentage of the amount of such draft, or any part thereof, which is
not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C
Participant to the Issuing Lender pursuant to Section 3.4(a) in respect of any
unreimbursed portion of any payment made by the Issuing Lender under any Letter
of Credit, the Issuing Lender shall notify the Administrative Agent and each L/C
Participant of the amount and due date of such required payment and such L/C
Participant shall pay to the Issuing Lender the amount specified on the
applicable due date. If any such amount is paid to the Issuing Lender after the
date such payment is due, such L/C Participant shall pay to the Issuing Lender
on demand, in addition to such amount, the product of (i) such amount, times
(ii) the daily average Federal Funds Rate as determined by the Administrative
Agent during the period from and including the date such payment is due to the
date on which such payment is immediately available to the Issuing Lender, times
(iii) a fraction the numerator of which is the number of days that elapse during
such period and the denominator of which is 360. A certificate of the Issuing
Lender with respect to any amounts owing under this Section 3.4(b) shall be
conclusive in the absence of manifest error. With respect to payment to the
Issuing Lender of the unreimbursed amounts described in this Section 3.4(b), if
the L/C Participants receive notice that any such payment is due (A) prior to
1:00 p.m. (Charlotte time) on any Business Day, such payment shall be due that
Business Day, and (B) after 1:00 p.m. (Charlotte time) on any Business Day, such
payment shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment
under any Letter of Credit and has received from any L/C Participant its
Revolving Credit Commitment Percentage of such payment in accordance with this
Section 3.4, the Issuing Lender receives any payment related to such Letter of
Credit (whether directly from the Borrower or otherwise, or any payment of
interest on account thereof), the Issuing Lender will distribute to such L/C
Participant its pro rata share thereof; provided, that in the event that any
such payment received by the Issuing Lender shall be required to be returned by
the Issuing Lender, such L/C Participant shall return to the Issuing Lender the
portion thereof previously distributed by the Issuing Lender to it.
29
SECTION 3.5 Reimbursement Obligation of the Borrower. In the event of
any drawing under any Letter of Credit, the Borrower agrees to reimburse (either
with the proceeds of a Revolving Credit Loan as provided for in this Section 3.5
or with funds from other sources), the Issuing Lender not later than 1:00 p.m.
(Charlotte time) on the next succeeding Business Day for the amount of (a) such
draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by the
Issuing Lender in connection with such payment. The Issuing Lender shall deliver
written notice of any drawing under a Letter of Credit to the Administrative
Agent and the Borrower. Unless the Borrower shall immediately notify the Issuing
Lender that the Borrower intends to reimburse the Issuing Lender for such
drawing from other sources or funds, the Borrower shall be deemed to have timely
given a Notice of Borrowing to the Administrative Agent requesting that the
Lenders make a Revolving Credit Loan bearing interest at the Base Rate on such
date in the amount of (a) such draft so paid and (b) any amounts referred to in
Section 3.3(c) incurred by the Issuing Lender in connection with such payment,
and the Lenders shall make a Revolving Credit Loan bearing interest at the Base
Rate in such amount, the proceeds of which shall be applied to reimburse the
Issuing Lender for the amount of the related drawing and costs and expenses.
Each Lender acknowledges and agrees that its obligation to fund a Revolving
Credit Loan in accordance with this Section 3.5 to reimburse the Issuing Lender
for any draft paid under a Letter of Credit is absolute and unconditional and
shall not be affected by any circumstance whatsoever, including, without
limitation, non-satisfaction of the conditions set forth in Section 2.3(a) or
Article VI. If the Borrower has elected to pay the amount of such drawing with
funds from other sources and shall fail to reimburse the Issuing Lender as
provided above, the unreimbursed amount of such drawing shall bear interest at
the rate which would be payable on any outstanding Base Rate Loans which were
then overdue from the date such amounts become payable (whether at stated
maturity, by acceleration or otherwise) until payment in full.
SECTION 3.6 Obligations Absolute. The Borrower's obligations under this
Article III (including, without limitation, the Reimbursement Obligation) shall
be absolute and unconditional under any and all circumstances and irrespective
of any set-off, counterclaim or defense to payment which the Borrower may have
or have had against the Issuing Lender or any beneficiary of a Letter of Credit
or any other Person. The Borrower also agrees that the Issuing Lender, the
Administrative Agent and the L/C Participants shall not be responsible for, and
the Borrower's Reimbursement Obligation under Section 3.5 shall not be affected
by, among other things, the validity or genuineness of documents or of any
endorsements thereon, even though such documents shall in fact prove to be
invalid, fraudulent or forged, or any dispute between or among the Borrower and
any beneficiary of any Letter of Credit or any other party to which such Letter
of Credit may be transferred or any claims whatsoever of the Borrower against
any beneficiary of such Letter of Credit or any such transferee. The Issuing
Lender shall not be liable for any error, omission, interruption or delay in
transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Letter of Credit, except for errors or
omissions caused by the Issuing Lender's gross negligence or willful misconduct.
The Borrower agrees that any action taken or omitted by the Issuing Lender or
the Administrative Agent under or in connection with any Letter of Credit or the
related drafts or documents, if done in the absence of gross negligence or
willful misconduct, shall be binding on the Borrower and shall not result in any
liability of the Issuing Lender, the Administrative Agent or any L/C Participant
to the Borrower. The responsibility of the Issuing Lender to the Borrower in
connection with any draft presented for payment under any Letter of Credit
shall, in addition to any payment obligation expressly provided for in such
Letter of Credit, be limited to determining that the documents (including each
draft) delivered under such Letter of Credit in connection with such presentment
are in conformity with such Letter of Credit.
30
SECTION 3.7 Effect of Application. To the extent that any provision of
any Application related to any Letter of Credit is inconsistent with the
provisions of this Article III, the provisions of this Article III shall apply.
ARTICLE IV
TERM LOAN FACILITY
SECTION 4.1 Term Loan. Subject to the terms and conditions of this
Agreement, each Lender severally agrees to make a Term Loan to the Borrower on
the Closing Date. The Term Loan shall be funded by each Lender in a principal
amount equal to such Lender's Term Loan Percentage of the aggregate principal
amount of the Term Loans made on the Closing Date, which aggregate principal
amount shall equal the total Term Loan Commitment as of the Closing Date.
SECTION 4.2 Procedure for Advance of Term Loan. The Borrower shall give
the Administrative Agent an irrevocable Notice of Borrowing prior to 1:00 p.m.
(Charlotte time) on the Closing Date requesting that the Lenders make the Term
Loan as a Base Rate Loan on such date. Upon receipt of such Notice of Borrowing
from the Borrower, the Administrative Agent shall promptly notify each Lender
thereof. Not later than 2:00 p.m. (Charlotte time) on the Closing Date, each
Lender will make available to the Administrative Agent for the account of the
Borrower, at the office of the Administrative Agent in immediately available
funds, the amount of such Term Loan to be made by such Lender on such borrowing
date. The Borrower hereby irrevocably authorizes the Administrative Agent to
disburse the proceeds of the Term Loan in immediately available funds by wire
transfer to such Person or Persons as may be designated by the Borrower.
SECTION 4.3 Repayment of Term Loan. The Borrower shall repay the
aggregate outstanding principal amount of the Term Loan in consecutive quarterly
installments on the last Business Day of each of April, July, October and
January commencing April 30, 2003 as set forth below, except as the amount of
individual installments may be adjusted pursuant to Section 4.4 hereof:
31
------------------------------- ---------------------------- -------------------
YEAR PAYMENT DATE PRINCIPAL TERM LOAN
INSTALLMENT COMMITMENT
($) ($)
------------------------------- ---------------------------- -------------------
------------------------------- ---------------------------- -------------------
2003 April 30 375,000 149,625,000
July 31 375,000 149,250,000
October 31 375,000 148,875,000
January 31 375,000 148,500,000
------------------------------- ---------------------------- -------------------
2004 April 30 3,125,000 145,375,000
July 31 3,125,000 142,250,000
October 31 3,125,000 139,125,000
January 31 3,125,000 136,000,000
------------------------------- ---------------------------- -------------------
2005 April 30 3,125,000 132,875,000
July 31 3,125,000 129,750,000
October 31 3,125,000 126,625,000
January 31 3,125,000 123,500,000
------------------------------- ---------------------------- -------------------
2006 April 30 3,125,000 120,375,000
July 31 3,125,000 117,250,000
October 31 3,125,000 114,125,000
January 31 3,125,000 111,000,000
------------------------------- ---------------------------- -------------------
2007 April 30 55,500,000 55,500,000
July 23 55,500,000 0
------------------------------- ---------------------------- -------------------
If not sooner paid, the Term Loan shall be paid in full, together with accrued
interest thereon, on the Term Loan Maturity Date.
SECTION 4.4 Prepayments of Term Loan.
(a) Optional Prepayment of Term Loan. The Borrower shall have the right
at any time and from time to time, upon delivery to the Administrative Agent of
a Notice of Prepayment at least three (3) Business Days prior to any repayment,
to prepay the Term Loan in whole or in part without premium or penalty except as
provided in Section 5.9. Each optional prepayment of the Term Loan hereunder
shall be in an aggregate principal amount of at least $5,000,000 or any whole
multiple of $1,000,000 in excess thereof and shall be applied to the outstanding
principal installments of the Term Loan in inverse order of maturity thereof.
Each repayment shall be accompanied by any amount required to be paid pursuant
to Section 5.9 hereof.
(b) Mandatory Prepayments of Term Loans.
(i) Debt Proceeds. The Borrower shall make mandatory principal
prepayments of the Term Loans in the manner set forth in Section 4.4(b)(vii)
below in amounts equal to one hundred percent (100%) of the aggregate Net Cash
Proceeds in excess of $1,000,000 in the aggregate during any Fiscal Year from
any incurrence of either (A) Debt permitted solely under and incurred under
Section 11.1(g) or (B) Debt not otherwise permitted pursuant to Section 11.1, by
the Borrower or any of its Restricted Subsidiaries. Such prepayment shall be
made within three (3) Business Days after the date of receipt of Net Cash
Proceeds of any such transaction.
32
(ii) Subordinated Debt Proceeds. The Borrower shall make
mandatory principal prepayments of the Term Loans in the manner set forth in
Section 4.4(b)(vii) below in amounts equal to fifty percent (50%) of the Net
Cash Proceeds from any incurrence of Subordinated Debt permitted pursuant to
Section 11.1(f), or otherwise permitted by the Required Lenders, by the Borrower
or any of its Restricted Subsidiaries. Such prepayment shall be made within
three (3) Business Days after the date of receipt of Net Cash Proceeds of any
such transaction.
(iii) Equity Proceeds. The Borrower shall make mandatory
principal prepayments of the Term Loans in the manner set forth in Section
4.4(b)(vii) below in amounts equal to fifty percent (50%) of the aggregate Net
Cash Proceeds from any offering of equity securities by the Borrower or any of
its Restricted Subsidiaries other than solely as a result of offerings of equity
securities made in connection with any employee stock option, incentive plan or
stock purchase plan or made in connection with compensation or incentive plans
for directors and officers, in each case, entered into in the ordinary course of
business, or the exercise of any options or other convertible securities in
connection therewith. Such prepayment shall be made within three (3) Business
Days after the date of receipt of Net Cash Proceeds of any such transaction.
(iv) Asset Sale Proceeds. No later than one hundred eighty
(180) days following the Borrower's or applicable Restricted Subsidiary's
receipt thereof, the Borrower shall make mandatory principal prepayments of the
Term Loans in the manner set forth in Section 4.4(b)(vii) below in amounts equal
to one hundred percent (100%) of the aggregate Net Cash Proceeds in excess of
$10,000,000 in the aggregate during any Fiscal Year from the sale or other
disposition or series of related sales or other dispositions of assets by the
Borrower or any of its Restricted Subsidiaries other than sales or other
dispositions of assets permitted pursuant to Section 11.5 (a), (b), (d), (f) and
(g). Notwithstanding any of the foregoing to the contrary, upon and during the
continuance of an Event of Default and upon notice from the Administrative
Agent, all such Net Cash Proceeds received by the Borrower and its Restricted
Subsidiaries shall be applied to make prepayments of the Term Loans, such
prepayments to be made within three (3) Business Days after the Borrower's or
such Restricted Subsidiary's receipt of all such Net Cash Proceeds.
(v) Insurance and Condemnation Proceeds. No later than one
hundred eighty (180) days following the date of receipt by the Borrower or any
of its Restricted Subsidiaries of any Net Cash Proceeds under any of the
insurance policies maintained by the Borrower or any of its Subsidiaries or from
any condemnation proceeding (the "Insurance and Condemnation Proceeds") which
have not been previously reinvested (whether before or after the receipt of such
Net Cash Proceeds) as of such date in similar replacement assets, the Borrower
shall make mandatory principal prepayments of the Term Loans in the manner set
forth in Section 4.4(b)(vii) below in amounts equal to one hundred percent
(100%) of the aggregate amount of such Insurance and Condemnation Proceeds in
excess of $100,000 received by the Borrower or any of its Restricted
Subsidiaries with respect to each occurrence for which Insurance and
Condemnation Proceeds are received. Notwithstanding any of the foregoing to the
contrary, upon and during the continuance of an Event of Default and upon notice
from the Administrative Agent, all Insurance and Condemnation Proceeds received
by the Borrower or its Restricted Subsidiaries shall be applied to make
prepayments of the Term Loans, such prepayments to be made within three (3)
Business Days after the Borrower's or such Restricted Subsidiary's receipt of
such Insurance and Condemnation Proceeds.
33
(vi) Excess Cash Flow. No later than one hundred (100) days
after the end of any Fiscal Year, the Borrower shall make mandatory principal
prepayments of the Term Loans in the manner set forth in Section 4.4(b)(vii)
below in an amount equal to fifty percent (50%) of Excess Cash Flow, if any, for
such Fiscal Year.
(vii) Notice; Manner of Payment. Upon the occurrence of any
event triggering the prepayment requirement under Sections 4.4(b)(i) through and
including 4.4(b)(vi), the Borrower shall promptly deliver a Notice of Prepayment
to the Administrative Agent and upon receipt of such notice, the Administrative
Agent shall promptly so notify the Lenders. Each prepayment under this Section
4.4(b) shall be applied as follows: first, to reduce in inverse order of
maturity the remaining scheduled principal installments of the Term Loans and
(ii) second, to the extent of any excess, to reduce permanently the Revolving
Credit Commitment, pursuant to Section 2.6(b).
Amounts repaid under the Term Loans pursuant to Section 4.3 or prepaid
under the Term Loans pursuant to this Section 4.4 may not be reborrowed and will
constitute a permanent reduction in such Term Loan Commitment. Each prepayment
shall be accompanied by any amount required to be paid pursuant to Section 5.9
hereof.
Notwithstanding anything in this Section 4.4 to the contrary, any Term
Loan Lender shall have the right to refuse its pro rata share (based on Term
Loan Percentage) of any such mandatory prepayment at which time the remaining
amount shall be applied first, to temporarily reduce the Revolving Credit Loans,
and then, to the extent of any remaining funds, the Borrower may elect to (a)
prepay the outstanding Term Loans in the manner set forth in this Section 4.4
regardless of the election of the Term Loan Lender or (b) retain such excess
amount. No prepayment or repayment pursuant to this Section 4.4 shall affect any
of the Borrower's obligations under any Hedging Agreement.
SECTION 4.5 Term Notes. Except as otherwise provided in Section
14.10(a) - (e), each Lender's Term Loan and the obligation of the Borrower to
repay such Term Loan shall be evidenced by a separate Term Note executed by the
Borrower payable to the order of such Lender.
34
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1 Interest.
(a) Interest Rate Options. Subject to the provisions of this Section
5.1, at the election of the Borrower, (i) Revolving Credit Loans and Term Loans
shall bear interest at (A) the Base Rate plus the Applicable Margin as set forth
in Section 5.1(c) or (B) the LIBOR Rate plus the Applicable Margin as set forth
in Section 5.1(c) (provided that the LIBOR Rate shall not be available until
three (3) Business Days after the Closing Date) and (ii) any Swingline Loans
shall bear interest at the Base Rate plus the Applicable Margin. The Borrower
shall select the rate of interest and Interest Period, if any, applicable to any
Loan at the time a Notice of Borrowing is given pursuant to Section 2.3 or
Section 4.2, as applicable, or at the time a Notice of Conversion/Continuation
is given pursuant to Section 5.2. Any Loan or any portion thereof as to which
the Borrower has not duly specified an interest rate as provided herein shall be
deemed a Base Rate Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the
Borrower, by giving notice at the times described in Section 5.1(a), shall elect
an interest period (each, an "Interest Period") to be applicable to such Loan,
which Interest Period shall be a period of one (1), two (2), three (3) or six
(6) months with respect to each LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the date of advance
of or conversion to any LIBOR Rate Loan and, in the case of immediately
successive Interest Periods, each successive Interest Period shall commence on
the date on which the immediately preceding Interest Period expires;
(ii) if any Interest Period would otherwise expire on a day
that is not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, that if any Interest Period with respect to a
LIBOR Rate Loan would otherwise expire on a day that is not a Business Day but
is a day of the month after which no further Business Day occurs in such month,
such Interest Period shall expire on the immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan
that begins on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the calendar month at the end of
such Interest Period) shall end on the last Business Day of the relevant
calendar month at the end of such Interest Period;
(iv) no Interest Period shall extend beyond the Revolving
Credit Maturity Date or the Term Loan Maturity Date, as applicable, and the
Borrower shall use reasonable efforts to select Interest Periods which will
permit the Borrower to make mandatory reductions of the Revolving Credit
Commitment pursuant to Section 2.6(b) and the quarterly principal installment
payments pursuant to Section 4.3 without payment of any amounts pursuant to
Section 5.9; and
(v) there shall be no more than eight (8) Interest
Periods in effect at any time.
35
(c) Applicable Margin. The Applicable Margin provided for in Section
5.1(a) with respect to any Loan (the "Applicable Margin") shall be based upon
the table set forth below and shall be determined and adjusted quarterly on the
date (each a "Calculation Date") ten (10) Business Days after the date by which
the Borrower is required to provide an Officer's Compliance Certificate for the
most recently ended fiscal quarter of the Borrower; provided that (a) the
initial Applicable Margin shall be based on Pricing Level II (as shown below)
and shall remain at Pricing Level II until the first Calculation Date occurring
after the Closing Date and, thereafter the Pricing Level shall be determined by
reference to the Leverage Ratio as of the last day of the most recently ended
fiscal quarter of the Borrower preceding the applicable Calculation Date, and
(b) if the Borrower fails to provide the Officer's Compliance Certificate as
required by Section 8.2 for the most recently ended fiscal quarter of the
Borrower preceding the applicable Calculation Date, the Applicable Margin from
such Calculation Date shall be based on Pricing Level I (as shown below) until
such time as an appropriate Officer's Compliance Certificate is provided, at
which time the Pricing Level shall be determined by reference to the Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Borrower preceding such Calculation Date. Except as provided in the preceding
sentence, the Applicable Margin shall be effective from one Calculation Date
until the next Calculation Date. Any adjustment in the Applicable Margin shall
be applicable to all Extensions of Credit then existing or subsequently made or
issued.
-------------------------------------------------------------------------------
-------------------- ------------------------------ ---------------------------
Pricing Level Leverage Ratio Applicable Applicable Base
LIBOR Margin Rate Margin
-------------- ---------------------- ------------------- ---------------------
-------------- ---------------------- ------------------- ---------------------
Revolving Term Loan Revolving Term Loan
Credit Facility Credit Facility
Facility Facility
-------------- ---------------------- -------- ---------- --------- ----------
-------------- ---------------------- -------- ---------- --------- ----------
I Greater than or 2.50% 3.25% 1.25% 2.00%
equal to 1.75 to 1.00
-------------- ---------------------- -------- ---------- --------- ----------
-------------- ---------------------- -------- ---------- --------- ----------
II Greater than or equal to 2.25% 3.25% 1.00% 2.00%
1.00 to 1.00 but less than
1.75 to 1.00
-------------- ---------------------- -------- ---------- --------- ----------
-------------- ---------------------- -------- ---------- --------- ----------
III Less than 1.00 to 1.00 2.00% 3.25% 0.75% 2.00%
-------------- ---------------------- -------- ---------- --------- ----------
(d) Default Rate. Subject to Section 12.3, at the discretion of the
Administrative Agent or as directed by the Required Lenders, upon the occurrence
and during the continuance of an Event of Default, (i) the Borrower shall no
longer have the option to request LIBOR Rate Loans or Swingline Loans, (ii) all
outstanding LIBOR Rate Loans shall bear interest at a rate per annum of two
percent (2%) in excess of the rate then applicable to LIBOR Rate Loans until the
end of the applicable Interest Period and thereafter at a rate equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans, and (iii)
all outstanding Base Rate Loans and other Obligations arising hereunder or under
any other Loan Document shall bear interest at a rate per annum equal to two
percent (2%) in excess of the rate then applicable to Base Rate Loans or such
other Obligations arising hereunder or under any other Loan Document. Interest
shall continue to accrue on the Notes after the filing by or against the
Borrower of any petition seeking any relief in bankruptcy or under any act or
law pertaining to insolvency or debtor relief, whether state, federal or
foreign.
36
(e) Interest Payment and Computation. Interest on each Base Rate Loan
shall be payable in arrears on the last Business Day of each calendar quarter
commencing March 31, 2003; and interest on each LIBOR Rate Loan shall be payable
on the last day of each Interest Period applicable thereto, and if such Interest
Period extends over three (3) months, at the end of each three (3) month
interval during such Interest Period. Interest on LIBOR Rate Loans and all fees
payable hereunder shall be computed on the basis of a 360-day year and assessed
for the actual number of days elapsed and interest on Base Rate Loans shall be
computed on the basis of a 365/366-day year and assessed for the actual number
of days elapsed.
(f) Maximum Rate. In no contingency or event whatsoever shall the
aggregate of all amounts deemed interest hereunder or under any of the Notes
charged or collected pursuant to the terms of this Agreement or pursuant to any
of the Notes exceed the highest rate permissible under any Applicable Law which
a court of competent jurisdiction shall, in a final determination, deem
applicable hereto. In the event that such a court determines that the Lenders
have charged or received interest hereunder in excess of the highest applicable
rate, the rate in effect hereunder shall automatically be reduced to the maximum
rate permitted by Applicable Law and the Lenders shall at the Administrative
Agent's option (i) promptly refund to the Borrower any interest received by the
Lenders in excess of the maximum lawful rate or (ii) apply such excess to the
principal balance of the Obligations on a pro rata basis. It is the intent
hereof that the Borrower not pay or contract to pay, and that neither the
Administrative Agent nor any Lender receive or contract to receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may be
paid by the Borrower under Applicable Law.
SECTION 5.2 Notice and Manner of Conversion or Continuation of Loans.
Provided that no Default or Event of Default has occurred and is then
continuing, the Borrower shall have the option to (a) convert at any time
following the third Business Day after the Closing Date all or any portion of
any outstanding Base Rate Loans (other than Swingline Loans) in a principal
amount equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof
into one or more LIBOR Rate Loans and (b) upon the expiration of any Interest
Period, (i) convert all or any part of its outstanding LIBOR Rate Loans in a
principal amount equal to $1,000,000 or a whole multiple of $500,000 in excess
thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert
or continue Loans as provided above, the Borrower shall give the Administrative
Agent irrevocable prior written notice in the form attached as Exhibit E (a
"Notice of Conversion/Continuation") not later than 1:00 p.m. (Charlotte time)
three (3) Business Days before the day on which a proposed conversion or
continuation of such Loan is to be effective specifying (A) the Loans to be
converted or continued, and, in the case of any LIBOR Rate Loan to be converted
or continued, the last day of the Interest Period therefor, (B) the effective
date of such conversion or continuation (which shall be a Business Day), (C) the
principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or continued LIBOR Rate Loan.
The Administrative Agent shall promptly notify the Lenders of such Notice of
Conversion/Continuation.
37
SECTION 5.3 Fees.
(a) Commitment Fee. Commencing on the Closing Date, the Borrower shall
pay to the Administrative Agent, for the account of the Lenders, a
non-refundable commitment fee at a rate per annum equal to the applicable rate
based upon the table set forth below (the "Commitment Fee Rate") on the average
daily unused portion of the Revolving Credit Commitment; provided that the
amount of outstanding Swingline Loans shall not be considered usage of the
Revolving Credit Commitment for the purpose of calculating such commitment fee.
The commitment fee shall be payable in arrears on the last Business Day of each
calendar quarter during the term of this Agreement commencing March 31, 2003,
and on the Revolving Credit Maturity Date. Such commitment fee shall be
distributed by the Administrative Agent to the Lenders pro rata in accordance
with the Lenders' respective Revolving Credit Commitment Percentages. The
Commitment Fee Rate shall be determined and adjusted quarterly on each
Calculation Date; provided, however, that (a) the initial Commitment Fee Rate
shall be based on Pricing Level II (as shown below) and shall remain at Pricing
Level II until the first Calculation Date occurring after the Closing Date and
thereafter the Pricing Level shall be determined by reference to the Leverage
Ratio as of the last day of the most recently ended fiscal quarter of the
Borrower preceding the applicable Calculation Date, and (b) if the Borrower
fails to provide the Officer's Compliance Certificate as required by Section 8.2
for the most recently ended fiscal quarter of the Borrower preceding the
applicable Calculation Date, the Commitment Fee Rate from such Calculation Date
shall be based on Pricing Level I (as shown below) until such time as an
appropriate Officer's Compliance Certificate is provided, at which time the
Pricing Level shall be determined by reference to the Leverage Ratio as of the
last day of the most recently ended fiscal quarter of the Borrower preceding
such Calculation Date. Except as provided in the preceding sentence, the
Commitment Fee Rate shall be effective from one Calculation Date until the next
Calculation Date.
--------------------- ----------------------------------------------------------
Pricing Level Leverage Ratio Commitment Fee Rate
===================== ==========================================================
I Greater than or equal to 1.75 to 1.00 0.500%
--------------------- ----------------------------------------------------------
--------------------- ----------------------------------------------------------
II Greater than or equal to 1.00 to 1.00 0.375%
but less than 1.75 to 1.00
--------------------- ----------------------------------------------------------
--------------------- ----------------------------------------------------------
III Less than 1.00 to 1.00 0.375%
--------------------- ----------------------------------------------------------
(b) Administrative Agent's and Other Fees. In order to compensate the
Administrative Agent for structuring and syndicating the Loans and for its
obligations hereunder, the Borrower agrees to pay to the Administrative Agent,
for its own account, the fees set forth in the separate fee letter agreement
executed by the Borrower and the Administrative Agent dated December 30, 2002.
SECTION 5.4 Manner of Payment. Each payment by the Borrower on account
of the principal of or interest on the Loans or of any fee, commission or other
amounts (including the Reimbursement Obligation) payable to the Lenders under
this Agreement or any Note shall be made not later than 1:00 p.m. (Charlotte
time) on the date specified for payment under this Agreement to the
Administrative Agent at the Administrative Agent's Office for the account of the
Lenders (other than as set forth below) pro rata in accordance with their
respective Revolving Credit Commitment Percentages or Term Loan Percentages, as
applicable, (except as specified below), in Dollars, in immediately available
funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 3:00 p.m. (Charlotte
time) on such day shall be deemed a payment on such date for the purposes of
38
Section 12.1, but for all other purposes shall be deemed to have been made on
the next succeeding Business Day. Any payment received after 3:00 p.m.
(Charlotte time) shall be deemed to have been made on the next succeeding
Business Day for all purposes. Upon receipt by the Administrative Agent of each
such payment, the Administrative Agent shall distribute to each Lender at its
address for notices set forth herein its pro rata share of such payment in
accordance with such Lender's Revolving Credit Commitment Percentage or Term
Loan Percentage, as applicable, (except as specified below) and shall wire
advice of the amount of such credit to each Lender. Each payment to the
Administrative Agent of the L/C Participants' commissions shall be made in like
manner, but for the account of the L/C Participants. Each payment to the
Administrative Agent of Administrative Agent's fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender
under Sections 5.8, 5.9, 5.10, 5.11 or 14.2 shall be paid to the Administrative
Agent for the account of the applicable Lender. Subject to Section 5.1(b)(ii) if
any payment under this Agreement or any Note shall be specified to be made upon
a day which is not a Business Day, it shall be made on the next succeeding day
which is a Business Day and such extension of time shall in such case be
included in computing any interest if payable along with such payment.
SECTION 5.5 Crediting of Payments and Proceeds. In the event that the
Borrower shall fail to pay any of the Obligations when due and the Obligations
have been accelerated pursuant to Section 12.2, all payments received by the
Lenders upon the Notes and the other Obligations and all net proceeds from the
enforcement of the Obligations shall be applied: (a) first to all expenses then
due and payable by the Borrower hereunder and under the other Loan Documents,
(b) then to all indemnity obligations then due and payable by the Borrower
hereunder and under the other Loan Documents, (c) then to all Administrative
Agent's and Issuing Lender's fees then due and payable by the Borrower hereunder
and under the other Loan Documents, (d) then to all commitment and other fees
and commissions then due and payable by the Borrower hereunder, (e) then to
accrued and unpaid interest on the Notes and accrued and unpaid interest on the
Reimbursement Obligation (pro rata in accordance with all such amounts due), (f)
then to the principal amount of the Notes and the Reimbursement Obligation and
any payments (including any termination payments and any accrued and unpaid
interest thereon) due in respect of any Hedging Agreement with any Lender or the
Administrative Agent (which such Hedging Agreement is permitted hereunder) (pro
rata in accordance with all such amounts due) and (g) then to the cash
collateral account described in Section 12.2(b) to the extent of any L/C
Obligations then outstanding, in that order.
SECTION 5.6 Adjustments. If any Lender (a "Benefited Lender") shall at
any time receive any payment of all or part of the Obligations owing to it, or
interest thereon, or if any Lender shall at any time receive any collateral in
respect to the Obligations owing to it (whether voluntarily or involuntarily, by
set-off or otherwise) (other than pursuant to Sections 5.8, 5.9, 5.10, 5.11 or
14.2) in a greater proportion than any such payment to and collateral received
by any other Lender, if any, in respect of the similar Obligations owing to such
other Lender, or interest thereon, such Benefited Lender shall purchase for cash
from the other Lenders such portion of each such other Lender's Extensions of
Credit, or shall provide such other Lenders with the benefits of any such
collateral, or the proceeds thereof, as shall be necessary to cause such
Benefited Lender to share the excess payment or benefits of such collateral or
proceeds ratably with each of the Lenders; provided, that if all or any portion
of such excess payment or benefits is thereafter recovered from such Benefited
Lender, such purchase shall be rescinded, and the purchase price and benefits
returned to the extent of such recovery, but without interest. The Borrower
agrees that each Lender so purchasing a portion of another Lender's Extensions
of Credit may exercise all rights of payment (including, without limitation,
rights of set-off) with respect to such portion as fully as if such Lender were
the direct holder of such portion.
39
SECTION 5.7 Nature of Obligations of Lenders Regarding Extensions of
Credit; Assumption by the Administrative Agent. The obligations of the Lenders
under this Agreement to make the Loans and issue or participate in Letters of
Credit are several and are not joint or joint and several. Unless the
Administrative Agent shall have received notice from a Lender prior to a
proposed borrowing date that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of the amount to be borrowed
on such date (which notice shall not release such Lender of its obligations
hereunder), the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the proposed borrowing date in
accordance with Sections 2.3(b) and 4.2, and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If such amount is made available to the Administrative
Agent on a date after such borrowing date, such Lender shall pay to the
Administrative Agent on demand an amount, until paid, equal to the product of
(a) the amount not made available by such Lender in accordance with the terms
hereof, times (b) the daily average Federal Funds Rate during such period as
determined by the Administrative Agent, times (c) a fraction the numerator of
which is the number of days that elapse from and including such borrowing date
to the date on which such amount not made available by such Lender in accordance
with the terms hereof shall have become immediately available to the
Administrative Agent and the denominator of which is 360. A certificate of the
Administrative Agent with respect to any amounts owing under this Section 5.7
shall be conclusive, absent manifest error. If such Lender's Revolving Credit
Commitment Percentage or Term Loan Percentage, as applicable, of such borrowing
is not made available to the Administrative Agent by such Lender within three
(3) Business Days after such borrowing date, the Administrative Agent shall be
entitled to recover such amount made available by the Administrative Agent with
interest thereon at the rate per annum applicable to Base Rate Loans hereunder,
on demand, from the Borrower. The failure of any Lender to make available its
Revolving Credit Commitment Percentage or Term Loan Percentage, as applicable,
of any Loan requested by the Borrower shall not relieve it or any other Lender
of its obligation, if any, hereunder to make its Revolving Credit Commitment
Percentage or Term Loan Percentage, as applicable, of such Loan available on the
borrowing date, but no Lender shall be responsible for the failure of any other
Lender to make its Revolving Credit Commitment Percentage or Term Loan
Percentage, as applicable, of such Loan available on the borrowing date.
Notwithstanding anything set forth herein to the contrary, any Lender that fails
to make available its Revolving Credit Commitment Percentage or Term Loan
Percentage, as applicable, shall not (a) have any voting or consent rights under
or with respect to any Loan Document or (b) constitute a "Lender" (or be
included in the calculation of Required Lenders hereunder) for any voting or
consent rights under or with respect to any Loan Document.
SECTION 5.8 Changed Circumstances.
40
(a) Circumstances Affecting LIBOR Rate Availability. If with respect to
any Interest Period the Administrative Agent or any Lender (after consultation
with the Administrative Agent) shall determine that, by reason of circumstances
affecting the foreign exchange and interbank markets generally, deposits in
eurodollars, in the applicable amounts are not being quoted via the Dow ▇▇▇▇▇
Market Screen 3750 or offered to the Administrative Agent or such Lender for
such Interest Period or that the LIBOR Rate for any requested Interest Period
with respect to a proposed LIBOR Rate Loan does not adequately and fairly
reflect the cost to such Lender of funding such Loan, then the Administrative
Agent shall forthwith give notice thereof to the Borrower. Thereafter, until the
Administrative Agent notifies the Borrower that such circumstances no longer
exist, the obligation of the Lenders to make LIBOR Rate Loans and the right of
the Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan
shall be suspended, and the Borrower shall repay in full (or cause to be repaid
in full) the then outstanding principal amount of each such LIBOR Rate Loan
together with accrued interest thereon, on the last day of the then current
Interest Period applicable to such LIBOR Rate Loan or convert the then
outstanding principal amount of each such LIBOR Rate Loan to a Base Rate Loan as
of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof,
the introduction of, or any change in, any Applicable Law or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank or comparable agency charged with the interpretation or administration
thereof, or compliance by any of the Lenders (or any of their respective Lending
Offices) with any request or directive (whether or not having the force of law)
of any such Governmental Authority, central bank or comparable agency, shall
make it unlawful or impossible for any of the Lenders (or any of their
respective Lending Offices) to honor its obligations hereunder to make or
maintain any LIBOR Rate Loan, such Lender shall promptly give notice thereof to
the Administrative Agent and the Administrative Agent shall promptly give notice
to the Borrower and the other Lenders. Thereafter, until the Administrative
Agent notifies the Borrower that such circumstances no longer exist, (i) the
obligations of the Lenders to make LIBOR Rate Loans and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan shall be
suspended and thereafter the Borrower may select only Base Rate Loans hereunder,
and (ii) if any of the Lenders may not lawfully continue to maintain a LIBOR
Rate Loan to the end of the then current Interest Period applicable thereto as a
LIBOR Rate Loan, the applicable LIBOR Rate Loan shall immediately be converted
to a Base Rate Loan for the remainder of such Interest Period.
(c) Increased Costs. If, after the date hereof, the introduction of, or
any change in, any Applicable Law, or in the interpretation or administration
thereof by any Governmental Authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any of the
Lenders (or any of their respective Lending Offices) with any request or
directive (whether or not having the force of law) of such Governmental
Authority, central bank or comparable agency:
(i) shall (except as provided in Section 5.11(e)) subject any
of the Lenders (or any of their respective Lending Offices) to any tax, duty or
other charge with respect to any Note, Letter of Credit or Application or shall
change the basis of taxation of payments to any of the Lenders (or any of their
respective Lending Offices) of the principal of or interest on any Note, Letter
of Credit or Application or any other amounts due under this Agreement in
respect thereof (except for changes in the rate of franchise tax or tax on the
overall net income of any of the Lenders or any of their respective Lending
Offices imposed by the jurisdiction in which such Lender is organized or is or
should be qualified to do business or such Lending Office is located); provided
that the Borrower shall not be obligated to pay any amounts pursuant to this
Section 5.8(c)(i) to the extent that such amounts are duplicative of any amounts
paid by the Borrower pursuant to Section 5.11; or
41
(ii) shall impose, modify or deem applicable any reserve
(including, without limitation, any reserve imposed by the Board of Governors of
the Federal Reserve System), special deposit, insurance or capital or similar
requirement against assets of, deposits with or for the account of, or credit
extended by any of the Lenders (or any of their respective Lending Offices) or
shall impose on any of the Lenders (or any of their respective Lending Offices)
or the foreign exchange and interbank markets any other condition affecting any
Note; and the result of any of the foregoing events described in clause (i) or
(ii) above is to increase the costs to any of the Lenders of maintaining any
LIBOR Rate Loan or issuing or participating in Letters of Credit or to reduce
the yield or amount of any sum received or receivable by any of the Lenders
under this Agreement or under the Notes in respect of a LIBOR Rate Loan or
Letter of Credit or Application, then such Lender shall promptly notify the
Administrative Agent, and the Administrative Agent shall promptly notify the
Borrower of such fact and demand compensation therefor and, within fifteen (15)
days after such notice by the Administrative Agent, the Borrower shall pay to
such Lender such additional amount or amounts as will compensate such Lender or
Lenders for such increased cost or reduction. The Administrative Agent will
promptly notify the Borrower of any event of which it has knowledge which will
entitle such Lender to compensation pursuant to this Section 5.8(c); provided,
that the Administrative Agent shall incur no liability whatsoever to the Lenders
or the Borrower in the event it fails to do so. The amount of such compensation
shall be determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Revolving Credit Commitment Percentage or
Term Loan Percentage, as applicable, of the LIBOR Rate Loans in the London
interbank market and using any reasonable attribution or averaging methods which
such Lender deems appropriate and practical. A certificate of such Lender
setting forth the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
SECTION 5.9 Indemnity. The Borrower hereby indemnifies each of the
Lenders against any loss or expense which may arise or be attributable to each
Lender's obtaining, liquidating or employing deposits or other funds acquired to
effect, fund or maintain any Loan (a) as a consequence of any failure by the
Borrower to make any payment when due of any amount due hereunder in connection
with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow,
continue or convert on a date specified therefor in a Notice of Borrowing or
Notice of Conversion/Continuation or (c) due to any payment, prepayment or
conversion of any LIBOR Rate Loan on a date other than the last day of the
Interest Period therefor. The amount of such loss or expense shall be
determined, in the applicable Lender's sole discretion, based upon the
assumption that such Lender funded its Revolving Credit Commitment Percentage or
Term Loan Percentage, as applicable, of the LIBOR Rate Loans in the London
interbank market and using any reasonable attribution or averaging methods which
such Lender deems appropriate and practical. A certificate of such Lender
setting forth the basis for determining such amount or amounts necessary to
compensate such Lender shall be forwarded to the Borrower through the
Administrative Agent and shall be conclusively presumed to be correct save for
manifest error.
42
SECTION 5.10 Capital Requirements. If either (a) the introduction of,
or any change in, or in the interpretation of, any Applicable Law or (b)
compliance with any guideline or request from any central bank or comparable
agency or other Governmental Authority (whether or not having the force of law),
has or would have the effect of reducing the rate of return on the capital of,
or has affected or would affect the amount of capital required to be maintained
by, any Lender or any corporation controlling such Lender as a consequence of,
or with reference to the Commitments and other commitments of this type, below
the rate which such Lender or such other corporation could have achieved but for
such introduction, change or compliance, then within five (5) Business Days
after written demand by any such Lender, the Borrower shall pay to such Lender
from time to time as specified by such Lender additional amounts sufficient to
compensate such Lender or other corporation for such reduction. A certificate as
to such amounts submitted to the Borrower and the Administrative Agent by such
Lender, shall, in the absence of manifest error, be presumed to be correct and
binding for all purposes.
SECTION 5.11 Taxes.
(a) Payments Free and Clear. Except as otherwise provided in Section
5.11(e), any and all payments by the Borrower hereunder or under the Notes or
the Letters of Credit shall be made free and clear of and without deduction for
any and all present or future taxes, levies, imposts, deductions, charges or
withholding, and all liabilities with respect thereto excluding, (i) in the case
of each Lender and the Administrative Agent, income and franchise taxes imposed
by the jurisdiction under the laws of which such Lender or the Administrative
Agent (as the case may be) is organized or is or should be qualified to do
business or any political subdivision thereof and (ii) in the case of each
Lender, income and franchise taxes imposed by the jurisdiction of such Lender's
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities being
hereinafter referred to as "Taxes"). If the Borrower shall be required by law to
deduct or withhold any Taxes from or in respect of any sum payable hereunder or
under any Note or in respect of any Letter of Credit to any Lender or the
Administrative Agent, (A) except as otherwise provided in Section 5.11(e), the
sum payable shall be increased as may be necessary so that after making all
required deductions or withholdings (including deductions or withholdings
applicable to additional sums payable under this Section 5.11) such Lender or
the Administrative Agent (as the case may be) receives an amount equal to the
amount such party would have received had no such deductions or withholdings
been made, (B) the Borrower shall make such deductions or withholdings, (C) the
Borrower shall pay the full amount deducted to the relevant taxing authority or
other authority in accordance with Applicable Law, and (D) the Borrower shall
deliver to the Administrative Agent and such Lender evidence of such payment to
the relevant taxing authority or other Governmental Authority in the manner
provided in Section 5.11(d).
(b) Stamp and Other Taxes. In addition, the Borrower shall pay any
present or future stamp, registration, recordation or documentary taxes or any
other similar fees or charges or excise or property taxes, levies of the United
States or any state or political subdivision thereof or any applicable foreign
jurisdiction which arise from any payment made hereunder or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Loans, the Letters of Credit or the other Loan Documents, or the perfection of
any rights or security interest in respect thereof (hereinafter referred to as
"Other Taxes").
43
(c) Indemnity. Except as otherwise provided in Section 5.11(e), the
Borrower shall indemnify each Lender and the Administrative Agent for the full
amount of Taxes and Other Taxes (including, without limitation, any Taxes and
Other Taxes imposed by any jurisdiction on amounts payable under this Section
5.11) paid by such Lender or the Administrative Agent (as the case may be) and
any liability (including penalties, interest and expenses) arising therefrom or
with respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. Such indemnification shall be made within thirty (30) days
from the date such Lender or the Administrative Agent (as the case may be) makes
written demand therefor.
(d) Evidence of Payment. Within thirty (30) days after the date of any
payment of Taxes or Other Taxes, the Borrower shall furnish to the
Administrative Agent and the applicable Lender, at its address referred to in
Section 14.1, the original or a certified copy of a receipt evidencing payment
thereof or other evidence of payment satisfactory to the Administrative Agent.
(e) Delivery of Tax Forms. To the extent required by Applicable Law to
reduce or eliminate withholding or payment of taxes, each Lender and the
Administrative Agent shall deliver to the Borrower, with a copy to the
Administrative Agent, on the Closing Date or concurrently with the delivery of
the relevant Assignment and Acceptance, as applicable, (i) two United States
Internal Revenue Service Forms W-9, Forms W-8ECI or Forms W-8BEN, as applicable
(or successor forms) properly completed and certifying in each case that such
Lender is entitled to a complete exemption from withholding or deduction for or
on account of any United States federal income taxes, and (ii) an Internal
Revenue Service Form W-8BEN or W-8ECI or successor applicable form, as the case
may be, to establish an exemption from United States backup withholding taxes.
Each such Lender further agrees to deliver to the Borrower, with a copy to the
Administrative Agent, as applicable, two Form W-9, Form W-8BEN or W-8ECI, or
successor applicable forms or manner of certification, as the case may be, on or
before the date that any such form expires or becomes obsolete or after the
occurrence of any event requiring a change in the most recent form previously
delivered by it to the Borrower, certifying in the case of a Form W-9, Form
W-8BEN or W-8ECI (or successor forms) that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes (unless in any such case an event (including,
without limitation, any change in treaty, law or regulation) has occurred prior
to the date on which any such delivery would otherwise be required which renders
such forms inapplicable or the exemption to which such forms relate unavailable
and such Lender notifies the Borrower and the Administrative Agent that it is
not entitled to receive payments without deduction or withholding of United
States federal income taxes) and, in the case of a Form W-9, Form W-8BEN or
W-8ECI, establishing an exemption from United States backup withholding tax.
Notwithstanding anything in any Loan Document to the contrary, the Borrower
shall not be required to pay additional amounts to any Lender or the
Administrative Agent under Section 5.11 or Section 5.8(c), (i) if such Lender or
the Administrative Agent fails to comply with the requirements of this Section
5.11(e), other than to the extent that such failure is due to a change in law
occurring after the date on which such Lender or the Administrative Agent became
a party to this Agreement or (ii) that are the result of such Lender's or the
Administrative Agent's gross negligence or willful misconduct, as applicable.
44
(f) Survival. Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 5.11 shall survive the payment in full of the
Obligations and the termination of the Commitments.
SECTION 5.12 Replacement of Lenders.
(a) Request for Compensation. If any Lender requests compensation
pursuant to Section 5.8 or Section 5.10, or if the Borrower is required to pay
any additional amount to any Lender or any Governmental Authority for the
account of any Lender pursuant to Section 5.11, then such Lender shall use
reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to
another of its offices, branches or affiliates, if, in the judgment of such
Lender, such designation or assignment (A) would eliminate or reduce amounts
payable pursuant to Section 5.8, Section 5.10 or Section 5.11, as the case may
be, in the future and (B) would not subject such Lender to any unreimbursed cost
or expense and would not otherwise be disadvantageous to such Lender.
(b) Lender Replacement. If any Lender requests compensation pursuant to
Section 5.8 or Section 5.10, or if the Borrower is required to pay any
additional amount to any Lender or any Governmental Authority for the account of
any Lender pursuant to Section 5.11, then the Borrower may, upon notice to such
Lender and the Administrative Agent, require such Lender to assign and delegate,
without recourse (in accordance with and subject to the restrictions contained
in Section 14.10), all of its interests, rights and obligations under this
Agreement to an Eligible Assignee that shall assume such obligations (which
assignee may be another Lender, if a Lender accepts such assignment); provided
that (A) the Borrower shall have received the prior written consent of the
Administrative Agent, which consent shall not unreasonably be withheld, (B) such
Lender shall have received payment of an amount equal to the outstanding
principal of its Loans, accrued interest thereon, accrued fees, breakage costs
and all other amounts payable to it hereunder, from the assignee (to the extent
of such outstanding principal and accrued interest and fees) or the Borrower (in
the case of all other amounts) and (C) in the case of any such assignment
resulting from a claim for compensation pursuant to Section 5.8 or Section 5.10,
after giving effect to any such assignment, no claim for compensation under
Section 5.8 or Section 5.10 would reasonably be expected to be asserted by the
replacement Lender. A Lender shall not be required to make any such assignment
and delegation if, prior thereto, as a result of a waiver by such Lender or
otherwise, the circumstances entitling the Borrower to require such assignment
and delegation cease to apply.
(c) Effect of Replacement. To the extent that any Lender (a "Replaced
Lender") is required to assign all of its interests, rights and obligations
under this Agreement to an Eligible Assignee (a "Replacement Lender") pursuant
to this Section 5.12, upon the execution of all applicable assignment documents
and the satisfaction of all other conditions set forth herein, the Replacement
Lender shall become a Lender hereunder and the Replaced Lender shall cease to be
a Lender hereunder, except with respect to the indemnification provisions under
this Agreement, which provisions shall survive as to such Replaced Lender.
45
SECTION 5.13 Matters Applicable to all Requests for Compensation.
Notwithstanding any other provision of this Agreement to the contrary, the
Borrower shall not be obligated to make any payment to the Administrative Agent
or any Lender pursuant to Sections 5.8, 5.9, 5.10 or 5.11 in respect of any
amounts or costs accruing in or allocable to any period prior to the 120th day
preceding written demand by such Lender or the Administrative Agent upon the
Borrower for payment therefor (unless such amounts or costs prior to such 120
day period result from the retroactive effect of any of the events described in
Sections 5.8, 5.9, 5.10 or 5.11 giving rise to such written demand and which
occurred during such 120 day period).
SECTION 5.14 Security. The Obligations of the Borrower and the
Guarantors shall be secured as provided in the Security Documents (including,
without limitation, the Mortgages, if applicable, under the terms of Section
9.13).
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1 Closing. The closing shall take place at the offices of
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, L.L.P. at 10:00 a.m. on January 22,
2003, or on such other place, date and time as the parties hereto shall mutually
agree.
SECTION 6.2 Conditions to Closing and Initial Extensions of Credit. The
obligation of the Lenders to close this Agreement and to make the initial Loan
or issue or participate in the initial Letter of Credit, if any, is subject to
the satisfaction of each of the following conditions:
(a) Executed Loan Documents. This Agreement, the Revolving Credit
Notes, the Swingline Note, the Term Notes, the Guaranty Agreement and the
Collateral Agreement, together with any other applicable Loan Documents, shall
have been duly authorized, executed and delivered to the Administrative Agent by
the parties thereto, shall be in full force and effect and no Default or Event
of Default shall exist thereunder, and the Borrower shall have delivered
original counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
(i) Officer's Certificate of the Borrower. The Administrative
Agent shall have received a certificate from a Responsible Officer, in form and
substance satisfactory to the Administrative Agent, to the effect that all
representations and warranties of the Borrower and each Subsidiary thereof
contained in this Agreement and the other Loan Documents are true, correct and
complete; that the Borrower and each Subsidiary thereof is not in violation of
any of the covenants contained in this Agreement and the other Loan Documents;
that, after giving effect to the transactions contemplated by this Agreement, no
Default or Event of Default has occurred and is continuing; and that the
Borrower and each Subsidiary thereof has satisfied each of the closing
conditions.
(ii) Certificate of Secretary of the Borrower and each
Restricted Subsidiary. The Administrative Agent shall have received a
certificate of the secretary or assistant secretary of the Borrower and each
46
Restricted Subsidiary certifying as to the incumbency and genuineness of the
signature of each officer of the Borrower and each Restricted Subsidiary
executing Loan Documents to which it is a party and certifying that attached
thereto is a true, correct and complete copy of (A) the articles of
incorporation, certificate of formation, certificate of partnership or other
organizational document, as applicable, of the Borrower or such Restricted
Subsidiary and all amendments thereto, certified as of a recent date by the
appropriate Governmental Authority in its jurisdiction of incorporation, (B) the
bylaws, operating agreement or partnership agreement, as applicable, of the
Borrower or such Restricted Subsidiary as in effect on the date of such
certifications, (C) resolutions duly adopted by the Board of Directors or other
applicable governing authority of the Borrower or such Restricted Subsidiary
authorizing the borrowings contemplated hereunder or the delivery of the
Guaranty, as the case may be, and the execution, delivery and performance of
this Agreement and the other Loan Documents to which it is a party, and (D) each
certificate required to be delivered pursuant to Section 6.2(b)(iii).
(iii) Certificates of Good Standing. The Administrative Agent
shall have received certificates as of a recent date of the good standing of the
Borrower and each Restricted Subsidiary under the laws of its jurisdiction of
organization and, to the extent requested by the Administrative Agent, each
other jurisdiction where the Borrower and each Restricted Subsidiary is
qualified to do business and a certificate of the relevant taxing authorities of
such jurisdictions certifying that such Person has filed required tax returns
and owes no delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent shall have
received favorable opinions of counsel to the Borrower and each Restricted
Subsidiary addressed to the Administrative Agent and the Lenders with respect to
the Borrower and each Restricted Subsidiary, the Loan Documents and such other
matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have
received copies of the United States Internal Revenue Service forms required by
Section 5.11(e) hereof.
(c) Collateral.
(i) Filings and Recordings. All filings and recordations that
are necessary to perfect the security interests of the Lenders in the collateral
described in the Security Documents shall have been forwarded for filing in all
appropriate locations and the Administrative Agent shall have received evidence
satisfactory thereto that upon such filings and recordations such security
interests constitute valid and perfected first priority Liens therein, subject
to any Liens permitted under Section 11.2.
(ii) Pledged Collateral. The Administrative Agent shall have
received (A) original stock certificates or other certificates evidencing the
capital stock or other ownership interests pledged pursuant to the Collateral
Agreement together with an undated stock power for each such certificate duly
executed in blank by the registered owner thereof and (B) each original
promissory note pledged pursuant to the Collateral Agreement together with an
endorsement thereto.
(iii) Lien Search. The Administrative Agent shall have
received the results of a Lien search (including a search as to judgments,
pending litigation and tax matters) made against the Borrower and each
47
Restricted Subsidiary under the Uniform Commercial Code (or applicable judicial
docket) as in effect in any state in which any of its assets are located,
indicating among other things that its assets are free and clear of any Lien
except for Liens permitted hereunder.
(iv) Hazard and Liability Insurance. The Administrative Agent
shall have received certificates of insurance, evidence of payment of all
insurance premiums for the current policy year of each, and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies in the form required under the Security Documents and otherwise in form
and substance reasonably satisfactory to the Administrative Agent.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Borrower shall
have obtained all necessary approvals, authorizations and consents of any Person
and of all Governmental Authorities and courts having jurisdiction with respect
to the transactions contemplated by this Agreement and the other Loan Documents.
(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of this
Agreement or the other Loan Documents or the consummation of the transactions
contemplated hereby or thereby, or which, in the Administrative Agent's sole
discretion, would make it inadvisable to consummate the transactions
contemplated by this Agreement and such other Loan Documents.
(iii) No Event of Default. No Default or Event of
Default shall have occurred and be continuing.
(e) Financial Matters.
(i) Financial Statements. The Administrative Agent shall have
received the most recent audited Consolidated financial statements of the
Borrower and its Subsidiaries, all in form and substance satisfactory to the
Administrative Agent and prepared in accordance with GAAP.
(ii) Financial Condition Certificate. The Borrower shall have
delivered to the Administrative Agent a certificate, in form and substance
satisfactory to the Administrative Agent, and certified as accurate by a
Responsible Officer, that (A) the Borrower and each of its Restricted
Subsidiaries are each Solvent, (B) the Borrower's payables are current and not
past due except to the extent consistent with the Borrower's customary past
practice, (C) attached thereto are calculations evidencing compliance on a pro
forma basis with the covenants contained in Article X hereof, (D) the financial
projections previously delivered to the Administrative Agent represent the good
faith estimates (utilizing reasonable assumptions) of the financial condition
and operations of the Borrower and its Subsidiaries and (E) attached thereto is
a calculation of the Leverage Ratio pursuant to Section 10.1.
48
(iii) Payment at Closing; Fee Letters. The Borrower shall have
paid to the Administrative Agent and the Lenders the fees set forth or
referenced in Section 5.3 due on the Closing Date and any other accrued and
unpaid fees or commissions due hereunder (including, without limitation, legal
fees and expenses) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees
and other charges in connection with the execution, delivery, recording, filing
and registration of any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have
received a Notice of Borrowing, as applicable, from the Borrower in accordance
with Section 2.3(a) and Section 4.2, and a Notice of Account Designation
specifying the account or accounts to which the proceeds of any Loans made after
the Closing Date are to be disbursed.
(ii) Existing Credit Facility. The Existing Credit Facility
(other than the Existing Letters of Credit) shall be repaid in full and
terminated and any collateral security therefor shall be released, and the
Administrative Agent shall have received a pay-off letter in form and substance
satisfactory to it evidencing such repayment, termination, and, if applicable,
reconveyance and release.
(iii) Other Documents. All opinions, certificates and other
instruments and all proceedings in connection with the transactions contemplated
by this Agreement shall be satisfactory in form and substance to the
Administrative Agent. The Administrative Agent shall have received copies of all
other documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.
SECTION 6.3 Conditions to All Extensions of Credit. The obligations of
the Lenders to make any Extensions of Credit (including the initial Extension of
Credit), convert or continue any Loan and/or the Issuing Lender to issue or
extend any Letter of Credit are subject to the satisfaction of the following
conditions precedent on the relevant borrowing, continuation, conversion,
issuance or extension date:
(a) Continuation of Representations and Warranties. The representations
and warranties contained in Article VII shall be true and correct on and as of
such borrowing, continuation, conversion issuance or extension date with the
same effect as if made on and as of such date except for any representation and
warranty that specifically refers to an earlier date, which representation and
warranty shall remain true and correct as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have
occurred and be continuing (i) on the borrowing, continuation or conversion date
with respect to such Loan or after giving effect to the Loans to be made,
continued or converted on such date or (ii) on the issuance or extension date
with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.
(c) Notices. The Administrative Agent shall have received a Notice a
Borrowing or Notice of Conversion/Continuation, as applicable, from the Borrower
in accordance with Section 2.3(a) and Section 4.2.
49
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 7.1 Representations and Warranties. To induce the
Administrative Agent and Lenders to enter into this Agreement and to induce the
Lenders to make Extensions of Credit, the Borrower hereby represents and
warrants to the Administrative Agent and Lenders both before and after giving
effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Borrower and its
Subsidiaries (i) is duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation or formation, (ii) has the
power and authority to own its properties and to carry on its business as now
being and hereafter proposed to be conducted and (iii) except to the extent that
the failure to do so could not reasonably be expected to have a Material Adverse
Effect, is duly qualified and authorized to do business in each jurisdiction in
which the character of its properties or the nature of its business requires
such qualification and authorization. The jurisdictions in which the Borrower
and its Subsidiaries are organized and qualified to do business as of the
Closing Date are described on Schedule 7.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the Closing Date
is listed on Schedule 7.1(b). As of the Closing Date, the capitalization of the
Borrower and its Subsidiaries consists of the number of shares, authorized,
issued and outstanding, of such classes and series, with or without par value,
described on Schedule 7.1(b). All outstanding shares of the Borrower and its
Subsidiaries have been duly authorized and validly issued and are fully paid and
nonassessable, with no personal liability attaching to the ownership thereof,
and not subject to any preemptive or similar rights. The shareholders of the
Subsidiaries of the Borrower and the number of shares owned by each as of the
Closing Date are described on Schedule 7.1(b). As of the Closing Date, there are
no outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
issuance of capital stock of the Borrower, except as set forth in the most
recent audited financial statements thereof, or its Subsidiaries, except as
described on Schedule 7.1(b).
(c) Authorization of Agreement, Loan Documents and Borrowing. Each of
the Borrower and its Restricted Subsidiaries has the right, power and authority
and has taken all necessary corporate and other action to authorize the
execution, delivery and performance of this Agreement and each of the other Loan
Documents to which it is a party in accordance with their respective terms. This
Agreement and each of the other Loan Documents have been duly executed and
delivered by the duly authorized officers of the Borrower and each of its
Subsidiaries party thereto, and each such document constitutes the legal, valid
and binding obligation of the Borrower or its Subsidiary party thereto,
enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state
or federal debtor relief laws from time to time in effect which affect the
enforcement of creditors' rights in general and the availability of equitable
remedies.
50
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws,
Etc. The execution, delivery and performance by the Borrower and its Restricted
Subsidiaries of the Loan Documents to which each such Person is a party, in
accordance with their respective terms, the Extensions of Credit hereunder and
the transactions contemplated hereby do not and will not, by the passage of
time, the giving of notice or otherwise, (i) require any Governmental Approval
or violate any Applicable Law relating to the Borrower or any of its
Subsidiaries, (ii) conflict with, result in a breach of or constitute a default
under the articles of incorporation, bylaws or other organizational documents of
the Borrower or any of its Subsidiaries or any indenture, material agreement or
other material instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person,
(iii) result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such Person other
than Liens arising under the Loan Documents or (iv) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or
Governmental Authority and no consent of any other Person is required in
connection with the execution, delivery, performance, validity or enforceability
of this Agreement except, in each case, (A) as may be required by law affecting
the offering and sale of securities generally, (B) filings with the United
States Copyright Office and/or the United States Patent and Trademark Office,
(C) filings under the UCC and (D) those notices, consents and authorizations
which have been obtained prior to the Closing Date.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower
and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding, (ii) is in compliance with each Governmental Approval
applicable to it and in compliance with all other Applicable Laws relating to it
or any of its respective properties and (iii) has timely filed all material
reports, documents and other materials required to be filed by it under all
Applicable Laws with any Governmental Authority and has retained all material
records and documents required to be retained by it under Applicable Law;
except, in each case referred to in clauses (i), (ii) and (iii) above, to the
extent that the failure to comply with the terms thereof could not reasonably be
expected to have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its Subsidiaries
has timely filed all federal, state, local and other tax returns required by
Applicable Law, and has paid all federal, state, local and other taxes,
assessments, fees and other governmental charges therein shown to be due and
payable, except those which are being contested in good faith by appropriate
proceedings diligently conducted and for which adequate reserves have been
provided in accordance with GAAP. To the knowledge of the Responsible Officers
of the Borrower and its Subsidiaries, there is (i) no ongoing audit, examination
or other investigation by any Governmental Authority of the tax liability of the
Borrower and its Subsidiaries which could reasonably be expected to have a
Material Adverse Effect, and (ii) no proposed tax assessment against the
Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.
51
(g) Intellectual Property Matters. Each of the Borrower and its
Restricted Subsidiaries owns or possesses rights to use all franchises,
licenses, copyrights, copyright applications, patents, patent rights or
licenses, patent applications, trademarks, trademark rights, service ▇▇▇▇,
service ▇▇▇▇ rights, trade names, trade name rights, copyrights and rights with
respect to the foregoing which are required to conduct its business. Except to
the extent that it could not reasonably be expected to have a Material Adverse
Effect, no event has occurred which permits, or after notice or lapse of time or
both would permit, the revocation or termination of any such rights, and neither
the Borrower nor any Restricted Subsidiary thereof is liable to any Person for
infringement under Applicable Law with respect to any such rights as a result of
its business operations.
(h) Environmental Matters. Except as to matters which could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect:
(i) The properties owned, leased or operated by the Borrower
and its Subsidiaries now do not contain, and to their knowledge have not
previously contained, any Hazardous Materials in amounts or concentrations which
(A) constitute or constituted a violation of applicable Environmental Laws or
(B) could give rise to liability under applicable Environmental Laws;
(ii) The Borrower, each Subsidiary and such properties and all
operations conducted in connection therewith are in compliance, and have been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair
saleable value thereof;
(iii) Neither the Borrower nor any Subsidiary thereof has
received any notice of violation, alleged violation, non-compliance, liability
or potential liability regarding environmental matters, Hazardous Materials, or
compliance with Environmental Laws, nor does the Borrower or any Subsidiary
thereof have knowledge or reason to believe that any such notice will be
received or is being threatened;
(iv) Hazardous Materials have not been transported or disposed
of to or from the properties owned, leased or operated by the Borrower and its
Subsidiaries in violation of, or in a manner or to a location which could give
rise to liability under, Environmental Laws, nor have any Hazardous Materials
been generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could give rise to liability
under, any applicable Environmental Laws;
(v) No judicial proceedings or governmental or administrative
action is pending, or, to the knowledge of the Borrower, threatened, under any
Environmental Law to which the Borrower or any Subsidiary thereof is or will be
named as a potentially responsible party with respect to such properties or
operations conducted in connection therewith, nor are there any consent decrees
or other decrees, consent orders, administrative orders or other orders, or
other administrative or judicial requirements outstanding under any
Environmental Law with respect to Borrower, any Subsidiary or such properties or
such operations; and
(vi) There has been no release, or to the best of the
Borrower's knowledge, threat of release, of Hazardous Materials at or from
properties owned, leased or operated by the Borrower or any Subsidiary, now or
in the past, in violation of or in amounts or in a manner that could give rise
to liability under Environmental Laws.
52
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Employee
Benefit Plans other than those identified on Schedule 7.1(i);
(ii) The Borrower and each ERISA Affiliate is in material
compliance with all applicable provisions of ERISA and the regulations and
published interpretations thereunder with respect to all Employee Benefit Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired and except where a
failure to so comply could not reasonably be expected to have a Material Adverse
Effect. Each Employee Benefit Plan that is intended to be qualified under
Section 401(a) of the Code has been determined by the Internal Revenue Service
to be so qualified, and each trust related to such plan has been determined to
be exempt under Section 501(a) of the Code except for such plans that have not
yet received determination letters but for which the remedial amendment period
for submitting a determination letter has not yet expired. No liability has been
incurred by the Borrower or any ERISA Affiliate which remains unsatisfied for
any taxes or penalties with respect to any Employee Benefit Plan or any
Multiemployer Plan except for a liability that could not reasonably be expected
to have a Material Adverse Effect;
(iii) As of the Closing Date, no Pension Plan has been
terminated, nor has any accumulated funding deficiency (as defined in Section
412 of the Code) been incurred (without regard to any waiver granted under
Section 412 of the Code), nor has any funding waiver from the Internal Revenue
Service been received or requested with respect to any Pension Plan, nor has the
Borrower or any ERISA Affiliate failed to make any contributions or to pay any
amounts due and owing as required by Section 412 of the Code, Section 302 of
ERISA or the terms of any Pension Plan prior to the due dates of such
contributions under Section 412 of the Code or Section 302 of ERISA, in each
case where such event could reasonably be expected to have a Material Adverse
Effect; nor has there been any event requiring any disclosure under Section
4041(c)(3)(C) or 4063(a) of ERISA with respect to any Pension Plan;
(iv) Except where the failure of any of the following
representations to be correct in all material respects could not reasonably be
expected to have a Material Adverse Effect, neither the Borrower nor any ERISA
Affiliate has: (A) engaged in a nonexempt prohibited transaction described in
Section 406 of the ERISA or Section 4975 of the Code, (B) incurred any liability
to the PBGC which remains outstanding other than the payment of premiums and
there are no premium payments which are due and unpaid, (C) failed to make a
required contribution or payment to a Multiemployer Plan, or (D) failed to make
a required installment or other required payment under Section 412 of the Code;
53
(v) No Termination Event has occurred or is reasonably
expected to occur; and
(vi) Except where the failure of any of the following
representations to be correct could not reasonably be expected to have a
Material Adverse Effect, no proceeding, claim (other than a benefits claim in
the ordinary course of business), lawsuit and/or investigation is existing or,
to the best knowledge of the Borrower after due inquiry, threatened concerning
or involving any (A) employee welfare benefit plan (as defined in Section 3(1)
of ERISA) currently maintained or contributed to by the Borrower or any ERISA
Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock. Neither the Borrower nor any Subsidiary thereof is
engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any "margin stock" (as each
such term is defined or used, directly or indirectly, in Regulation U of the
Board of Governors of the Federal Reserve System). No part of the proceeds of
any of the Loans or Letters of Credit will be used for purchasing or carrying
margin stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of Governors.
(k) Government Regulation. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the Borrower nor any Subsidiary thereof is, or
after giving effect to any Extension of Credit will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate Commerce
Act, each as amended, or any other Applicable Law which limits its ability to
incur or consummate the transactions contemplated hereby.
(l) Material Contracts. Schedule 7.1(l) sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Subsidiaries in
effect as of the Closing Date not listed on any other Schedule hereto; other
than as set forth in Schedule 7.1(l), each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. The Borrower and its Subsidiaries have delivered to the Administrative
Agent a true and complete copy of each written Material Contract required to be
listed on Schedule 7.1(l) or any other Schedule hereto. Neither the Borrower nor
any Subsidiary (nor, to the knowledge of the Borrower, any other party thereto)
is in breach of or in default under any Material Contract in any material
respect.
(m) Employee Relations. Each of the Borrower and its Subsidiaries has a
stable work force in place and is not, as of the Closing Date, party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees. The Borrower knows of no pending, threatened or
contemplated strikes, work stoppage or other collective labor disputes involving
its employees or those of its Subsidiaries.
(n) Burdensome Provisions. Neither the Borrower nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
Applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The Borrower and
54
its Subsidiaries do not presently anticipate that future expenditures needed to
meet the provisions of any statutes, orders, rules or regulations of a
Governmental Authority will be so burdensome as to have a Material Adverse
Effect. Other than the Indenture, no Subsidiary is party to any agreement or
instrument or otherwise subject to any restriction or encumbrance that restricts
or limits its ability to make dividend payments or other distributions in
respect of its capital stock to the Borrower or any Subsidiary or to transfer
any of its assets or properties to the Borrower or any other Subsidiary in each
case other than existing under or by reason of the Loan Documents or Applicable
Law.
(o) Financial Statements. The audited Consolidated balance sheet of the
Borrower and its Subsidiaries as of September 29, 2002 and the related audited
statements of income and retained earnings and cash flows for the Fiscal Year
then ended, copies of which have been furnished to the Administrative Agent and
each Lender, are complete and correct and fairly present on a Consolidated basis
the assets, liabilities and financial position of the Borrower and its
Subsidiaries as at such dates, and the results of the operations and changes of
financial position for the periods then ended (other than customary year-end
adjustments for unaudited financial statements). All such financial statements,
including the related schedules and notes thereto, have been prepared in
accordance with GAAP. The Borrower and its Subsidiaries have no Debt, obligation
or other unusual forward or long-term commitment which is not fairly reflected
in the foregoing financial statements or in the notes thereto other than Debt
incurred in the ordinary course of business subsequent to the date thereof and
disclosed in writing to the Administrative Agent.
(p) No Material Adverse Change. Except as publicly disclosed by the
Borrower prior to the Closing Date, since September 29, 2002, there has been no
material adverse change in the properties, business, operations, prospects, or
condition (financial or otherwise) of the Borrower and its Subsidiaries and no
event has occurred or condition arisen that could reasonably be expected to have
a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each
Extension of Credit made hereunder, the Borrower and each of its Subsidiaries
will be Solvent.
(r) Titles to Properties. Each of the Borrower and its Subsidiaries has
such title to the real property owned or leased by it as is necessary or
desirable to the conduct of its business and valid and legal title to all of its
personal property and assets, including, but not limited to, those reflected on
the balance sheets of the Borrower and its Subsidiaries delivered pursuant to
Section 7.1(o), except those which have been disposed of by the Borrower or its
Subsidiaries subsequent to such date which dispositions have been in the
ordinary course of business or as otherwise expressly permitted hereunder.
(s) Liens. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 11.2. Neither the Borrower nor any Subsidiary thereof has signed any
such financing statement or any security agreement authorizing any secured party
thereunder to file any such financing statement with respect to any Lien
remaining effective as of the Closing Date, except to perfect those Liens
permitted by Section 11.2.
55
(t) Debt and Guaranty Obligations. Schedule 7.1(t) is a complete and
correct listing of all Debt and Guaranty Obligations of the Borrower and its
Subsidiaries as of the Closing Date in excess of $2,500,000. The Borrower and
its Subsidiaries have performed and are in compliance in all material respects
with all of the terms of such Debt and Guaranty Obligations and all instruments
and agreements relating thereto, and no default or event of default, or event or
condition which with notice or lapse of time or both would constitute such a
default or event of default on the part of the Borrower or any of its
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set
forth on Schedule 7.1(u), there are no actions, suits or proceedings pending
nor, to the knowledge of the Borrower, threatened against or in any other way
relating adversely to or affecting the Borrower or any Subsidiary thereof or any
of their respective properties in any court or before any arbitrator of any kind
or before or by any Governmental Authority except for any such actions, suits or
proceedings which individually and in the aggregate could not reasonably be
expected to have a Material Adverse Effect.
(v) Absence of Defaults. No event has occurred or is continuing which
constitutes a Default or an Event of Default, or which constitutes, or which
with the passage of time or giving of notice or both would constitute, a default
or event of default by the Borrower or any Subsidiary thereof under any Material
Contract or judgment, decree or order to which the Borrower or its Subsidiaries
is a party or by which the Borrower or its Subsidiaries or any of their
respective properties may be bound or which would require the Borrower or its
Subsidiaries to make any payment thereunder prior to the scheduled maturity date
therefor.
(w) Senior Debt Status. The Obligations of the Borrower and each of its
Restricted Subsidiaries under this Agreement and each of the other Loan
Documents rank and shall continue to rank senior in priority of payment to all
Subordinated Debt of each such Person and is designated as "Senior Indebtedness"
under all instruments and documents relating to all Subordinated Debt of such
Person.
(x) Accuracy and Completeness of Information. All written information,
reports and other papers and data produced by or on behalf of the Borrower or
any Subsidiary thereof (other than financial projections, which shall be subject
to the standard set forth in Section 8.1(c)) and furnished to the Lenders were,
at the time the same were so furnished, complete and correct to the extent
necessary to give the recipient a true and accurate knowledge of the subject
matter in all material respects. No document furnished or written statement made
to the Administrative Agent or the Lenders by the Borrower or any Subsidiary
thereof in connection with the negotiation, preparation or execution of this
Agreement or any of the Loan Documents contains or will contain any untrue
statement of a fact material to the creditworthiness of the Borrower or its
Subsidiaries or omits or will omit to state a fact necessary in order to make
the statements contained therein not misleading. The Borrower is not aware of
any facts which it has not disclosed in writing to the Administrative Agent
having a Material Adverse Effect, or insofar as the Borrower can now foresee,
which could reasonably be expected to have a Material Adverse Effect.
56
SECTION 7.2 Survival of Representations and Warranties, Etc. All
representations and warranties set forth in this Article VII and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations have been paid and satisfied in full and the
Commitments terminated, unless consent has been obtained in the manner set forth
in Section 14.11, the Borrower will furnish or cause to be furnished to the
Administrative Agent at the Administrative Agent's Office at the address set
forth in Section 14.1 and to the Lenders at their respective addresses as set
forth in the Register, or such other office as may be designated by the
Administrative Agent and Lenders from time to time:
SECTION 8.1 Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any
event within forty-five (45) days after the end of each fiscal quarter of each
Fiscal Year (or, if either such date is earlier, on the date of any required
public filing thereof, or five (5) days following any date on which the Borrower
may be required to file such statements), an unaudited Consolidated balance
sheet of the Borrower and its Subsidiaries as of the close of such fiscal
quarter and unaudited Consolidated statements of income and cash flows for the
fiscal quarter then ended and that portion of the Fiscal Year then ended,
including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the
corresponding period in the preceding Fiscal Year and prepared by the Borrower
in accordance with GAAP and, if applicable, containing disclosure of the effect
on the financial position or results of operations of any change in the
application of accounting principles and practices during the period, and
certified by the chief financial officer of the Borrower to present fairly in
all material respects the financial condition of the Borrower and its
Subsidiaries on a Consolidated basis as of their respective dates and the
results of operations of the Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments. (Delivery by the
Borrower to the Administrative Agent and the Lenders of the Borrower's quarterly
report to the SEC on Form 10-Q with respect to any fiscal quarter, or the
availability of such quarterly report on ▇▇▇▇▇ Online, within the period
specified above shall be deemed to be compliance by the Borrower with this
Section 8.1(a)).
(b) Annual Financial Statements. As soon as practicable and in any
event within ninety (90) days after the end of each Fiscal Year (or, if either
such date is earlier, on the date of any required public filing thereof, or five
(5) days following any date on which the Borrower may be required to file such
57
statements), an audited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such Fiscal Year and audited Consolidated
statements of income, retained earnings and cash flows for the Fiscal Year then
ended, including the notes thereto, all in reasonable detail setting forth in
comparative form the corresponding figures as of the end of and for the
preceding Fiscal Year and prepared by an independent certified public accounting
firm acceptable to the Administrative Agent in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position or
results of operations of any change in the application of accounting principles
and practices during the year, and accompanied by a report thereon by such
certified public accountants that is not qualified with respect to scope
limitations imposed by the Borrower or any of its Subsidiaries or with respect
to accounting principles followed by the Borrower or any of its Subsidiaries not
in accordance with GAAP. (Delivery by the Borrower to the Administrative Agent
and the Lenders of the Borrower's annual report to the SEC on Form 10-K with
respect to any fiscal year, or the availability of such annual report on ▇▇▇▇▇
Online, within the period specified above shall be deemed to be compliance by
the Borrower with this Section 8.1(b)).
(c) Annual Business Plan and Financial Projections. As soon as
practicable and in any event within thirty (30) days after the beginning of each
Fiscal Year, a business plan of the Borrower and its Subsidiaries for the
ensuing four (4) fiscal quarters, such plan to be prepared in accordance with
GAAP and to include, on a quarterly basis, the following: a quarterly operating
and capital budget, a projected income statement, statement of cash flows and
balance sheet and a report containing management's assumptions with respect to
such projections, accompanied by a certificate from the chief financial officer
of the Borrower to the effect that, to the best of such officer's knowledge,
such projections are good faith estimates (utilizing reasonable assumptions) of
the financial condition and operations of the Borrower and its Subsidiaries for
such four (4) fiscal quarter period.
SECTION 8.2 Officer's Compliance Certificate. At each time financial
statements are delivered pursuant to Sections 8.1 (a) or (b) and at such other
times as the Administrative Agent shall reasonably request, a certificate of the
chief financial officer or the treasurer of the Borrower in the form of Exhibit
F attached hereto (an "Officer's Compliance Certificate").
SECTION 8.3 Annual Accountants' Certificate. At each time financial
statements are delivered pursuant to Section 8.1(b), a certificate of the
independent public accountants certifying such financial statements addressed to
the Administrative Agent for the benefit of the Lenders stating that in making
the examination necessary for the certification of such financial statements,
they obtained no knowledge of any Default or Event of Default or, if such is not
the case, specifying such Default or Event of Default and its nature and period
of existence.
SECTION 8.4 Other Reports.
(a) Promptly upon receipt thereof, copies of all reports, if any,
submitted to the Borrower or its Board of Directors by its independent public
accountants in connection with their auditing function, including, without
limitation, any management report and any management responses thereto; and
58
(b) Such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Lender may reasonably request.
SECTION 8.5 Notice of Litigation and Other Matters. Prompt (but in no
event later than ten (10) days after an officer of the Borrower obtains
knowledge thereof) telephonic and written notice of:
(a) the commencement of all proceedings and investigations by or before
any Governmental Authority and all actions and proceedings in any court or
before any arbitrator against or involving the Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses, which in
any such case could reasonably be expected to have a Material Adverse Effect;
(b) any notice of any violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority including, without
limitation, any notice of violation of Environmental Laws which in any such case
could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens
to result in, a strike or other work action against the Borrower or any
Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding
$1,000,000 that may be assessed against or threatened against the Borrower or
any Subsidiary thereof;
(e) (i) any Default or Event of Default, (ii) the occurrence or
existence of any event or circumstance that foreseeably will become a Default or
Event of Default or (iii) any event which constitutes or which with the passage
of time or giving of notice or both would constitute a default or event of
default by the Borrower or any Subsidiary or, to the knowledge of the Borrower
or any Subsidiary, any third party, under any Material Contract to which the
Borrower or any of its Subsidiaries is a party or by which the Borrower or any
Subsidiary thereof or any of their respective properties may be bound;
(f) (i) any unfavorable determination letter from the Internal Revenue
Service regarding the qualification of an Employee Benefit Plan under Section
401(a) of the Code (along with a copy thereof), (ii) all notices received by the
Borrower or any ERISA Affiliate of the PBGC's intent to terminate any Pension
Plan or to have a trustee appointed to administer any Pension Plan, (iii) all
notices received by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor concerning the imposition or amount of withdrawal liability
pursuant to Section 4202 of ERISA and (iv) the Borrower obtaining knowledge or
reason to know that the Borrower or any ERISA Affiliate has filed or intends to
file a notice of intent to terminate any Pension Plan under a distress
termination within the meaning of Section 4041(c) of ERISA; and
(g) any event which makes any of the representations set forth
in Section 7.1 inaccurate in any respect.
59
SECTION 8.6 Accuracy of Information. All written information, reports,
statements and other papers and data furnished by or on behalf of the Borrower
to the Administrative Agent or any Lender whether pursuant to this Article VIII
or any other provision of this Agreement, or any of the Security Documents,
shall, at the time the same is so furnished, comply with the representations and
warranties set forth in Section 7.1(x).
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner
provided for in Section 14.11, the Borrower will, and will cause each of its
Restricted Subsidiaries to:
SECTION 9.1 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 11.4, preserve and maintain its separate
corporate existence and all material rights, franchises, licenses and privileges
necessary to the conduct of its business, and qualify and remain qualified as a
foreign corporation and authorized to do business in each jurisdiction in which
the failure to so qualify could reasonably be expected to have a Material
Adverse Effect.
SECTION 9.2 Maintenance of Property. In addition to the requirements of
any of the Security Documents, protect and preserve all properties useful in and
material to its business in accordance with sound business practices, including
copyrights, patents, trade names, service marks and trademarks; maintain in good
working order and condition in accordance with sound business practices all
buildings, equipment and other tangible real and personal property; and from
time to time make or cause to be made all renewals, replacements and additions
to such property necessary for the conduct of its business, so that the business
carried on in connection therewith may be conducted in a commercially reasonable
matter.
SECTION 9.3 Insurance. Maintain insurance with financially sound and
reputable insurance companies against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law and as are required by any Security Documents, and on the Closing
Date and from time to time thereafter deliver to the Administrative Agent upon
its request a detailed list of the insurance then in effect, stating the names
of the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
SECTION 9.4 Accounting Methods and Financial Records. Maintain a system
of accounting, and keep such books, records and accounts (which shall be true
and complete in all material respects) as may be required or as may be necessary
to permit the preparation of financial statements in accordance with GAAP and in
compliance with the regulations of any Governmental Authority having
jurisdiction over it or any of its properties.
SECTION 9.5 [Intentionally Omitted].
60
SECTION 9.6 Compliance With Laws and Approvals. Observe and remain in
compliance in all material respects with all Applicable Laws and maintain in
full force and effect all material Governmental Approvals, in each case
applicable to the conduct of its business.
SECTION 9.7 Environmental Laws. In addition to and without limiting the
generality of Section 9.6, (a) materially comply with, and ensure such material
compliance by all tenants and subtenants with all applicable Environmental Laws
and obtain and comply with and maintain, and ensure that all tenants and
subtenants, if any, obtain and comply with and maintain, any and all licenses,
approvals, notifications, registrations or permits required by applicable
Environmental Laws, (b) conduct and complete all investigations, studies,
sampling and testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
presence of Hazardous Materials, or the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Borrower or any such Restricted Subsidiary, or any orders, requirements or
demands of Governmental Authorities related thereto, including, without
limitation, reasonable attorney's and consultant's fees, investigation and
laboratory fees, response costs, court costs and litigation expenses, except to
the extent that any of the foregoing directly result from the gross negligence
or willful misconduct of the party seeking indemnification therefor.
SECTION 9.8 Compliance with ERISA. In addition to and without limiting
the generality of Section 9.6, (a) except where the failure to so comply could
not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
(iii) not participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) furnish to the Administrative Agent
upon the Administrative Agent's request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative
Agent.
SECTION 9.9 [Intentionally Omitted].
SECTION 9.10 Visits and Inspections. Permit representatives of the
Administrative Agent or any Lender, from time to time, to visit and inspect its
properties; inspect, audit and make extracts from its books, records and files,
including, but not limited to, management letters prepared by independent
accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of
operations and business prospects.
61
SECTION 9.11 Additional Subsidiaries
(a) Additional Domestic Subsidiary. Notify the Administrative Agent of
(i) the redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary
in accordance with Section 9.11(c) below or (ii) the creation or acquisition of
any Domestic Subsidiary, and (unless such Domestic Subsidiary has been
designated as an Unrestricted Subsidiary pursuant to Section 9.11(d)) promptly
thereafter (and in any event within thirty (30) days), cause such Person to (A)
become a Guarantor by executing and delivering to the Administrative Agent a
counterpart of the Guaranty Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose, (B) deliver to the
Administrative Agent a duly executed Joinder Agreement and comply with the terms
of each Security Document, (C) deliver to the Administrative Agent documents of
the types referred to in clauses (ii) and (iii) of Section 6.2(b) and (D)
deliver to the Administrative Agent such other documents and closing
certificates (and including, without limitation, opinions of counsel to such
Person) as may be reasonably requested by the Administrative Agent, all in form,
content and scope reasonably satisfactory to the Administrative Agent; provided,
further, that for purposes of this provision, the Permitted Target will be
deemed to have been acquired by Borrower on the Closing Date.
(b) Additional Foreign Subsidiaries. Notify the Administrative Agent at
the time that any Person becomes a first tier Foreign Subsidiary of the Borrower
or any Restricted Subsidiary, and at the request of the Administrative Agent,
promptly thereafter (and in any event within forty-five (45) days after such
request), cause (i) the Borrower or applicable Restricted Subsidiary to deliver
to the Administrative Agent a supplement to the Security Documents pledging
sixty-five percent (65%) of the total outstanding ownership interest or capital
stock of such new Foreign Subsidiary and a consent thereto executed by such new
Foreign Subsidiary (including, without limitation, if applicable, original stock
certificates (or the equivalent thereof pursuant to the Applicable Laws and
practices of any relevant foreign jurisdiction) evidencing the ownership
interest or capital stock of such new Foreign Subsidiary, together with an
appropriate undated stock power for each certificate duly executed in blank by
the registered owner thereof), (ii) such Person to deliver to the Administrative
Agent documents of the types referred to in clauses (ii) and (iii) of Section
6.2(b) and (iii) such Person to deliver to the Administrative Agent such other
documents and closing certificates (and including, without limitation, opinions
of counsel to such Person) as may be reasonably requested by the Administrative
Agent, all in form, content and scope reasonably satisfactory to the
Administrative Agent.
(c) Redesignation of Unrestricted Subsidiaries. At any time upon
written notice to the Administrative Agent, redesignate an Unrestricted
Subsidiary as a Restricted Subsidiary. Further, promptly after the date on which
the Borrower or the Administrative Agent determines that either (i) any
Unrestricted Subsidiary and its Subsidiaries individually represent two and one
half percent (2.5%) or more of (A) the Consolidated EBITDA of the Borrower and
its Subsidiaries (notwithstanding any definition thereof, calculated to include
all Unrestricted Subsidiaries) for the four (4) consecutive fiscal quarters most
recently ended prior to such date or (B) the Consolidated assets of the Borrower
and its Subsidiaries (notwithstanding any definition thereof, calculated to
include all Unrestricted Subsidiaries) as of the most recently ended fiscal
62
63
quarter prior to such date or (ii) all Unrestricted Subsidiaries and their
respective Subsidiaries collectively represent in the aggregate five percent
(5%) or more of (A) the Consolidated EBITDA of the Borrower and its Subsidiaries
(notwithstanding any definition thereof, calculated to include all Unrestricted
Subsidiaries) for the four (4) consecutive fiscal quarters most recently ended
prior to such date or (B) the Consolidated assets of the Borrower and its
Subsidiaries (notwithstanding any definition thereof, calculated to include all
Unrestricted Subsidiaries) as of the most recently ended fiscal quarter prior to
such date, then the Borrower shall promptly identify in writing to the
Administrative Agent such Unrestricted Subsidiaries to be redesignated as
Restricted Subsidiaries to cause such remaining Unrestricted Subsidiaries and
their Subsidiaries (after giving effect to such redesignation) to individually
represent less than two and one half percent (2.5%) of each of the Consolidated
EBITDA and the Consolidated assets of the Borrower and its Subsidiaries
(notwithstanding any definition thereof, calculated to include all Unrestricted
Subsidiaries) for the four (4) consecutive fiscal quarters most recently ended
prior to such date and collectively represent in the aggregate less than five
percent (5%) of each of the Consolidated EBITDA and the Consolidated assets of
the Borrower and its Subsidiaries (notwithstanding any definition thereof,
calculated to include all Unrestricted Subsidiaries) for the four (4)
consecutive fiscal quarters most recently ended prior to such date.
(d) Designation of Restricted Subsidiaries. So long as no Default or
Event of Default has occurred and is continuing, on prior written notice to the
Administrative Agent, redesignate any Restricted Subsidiary as an Unrestricted
Subsidiary (or designate any newly formed or acquired Subsidiary as an
Unrestricted Subsidiary; provided that such formation or acquisition is
otherwise permitted hereunder), so long as the Administrative Agent reasonably
determines that at the time of such proposed designation (or redesignation, as
applicable), and after giving effect thereto, the Unrestricted Subsidiaries and
their respective Subsidiaries (including the Subsidiary and its respective
Subsidiaries to be designated or redesignated, as applicable, as an Unrestricted
Subsidiary) (i) individually represent less than two and one half percent (2.5%)
of each of (A) the Consolidated EBITDA of the Borrower and its Subsidiaries
(notwithstanding any definition thereof, calculated to include all Unrestricted
Subsidiaries) for the four (4) consecutive fiscal quarters most recently ended
prior to such date and (B) the Consolidated assets of the Borrower and its
Subsidiaries (notwithstanding any definition thereof, calculated to include all
Unrestricted Subsidiaries) as of the most recently ended fiscal quarter prior to
such date and (ii) collectively represent in the aggregate less than five
percent (5%) of each of (A) the Consolidated EBITDA of the Borrower and its
Subsidiaries (notwithstanding any definition thereof, calculated to include all
Unrestricted Subsidiaries) for the four (4) consecutive fiscal quarters most
recently ended prior to such date and (B) the Consolidated assets of the
Borrower and its Subsidiaries (notwithstanding any definition thereof,
calculated to include all Unrestricted Subsidiaries) as of the most recently
ended fiscal quarter prior to such date. Such designation (or redesignation, as
applicable) shall have an effective date mutually acceptable to the
Administrative Agent and Borrower, but in no event earlier than five (5)
Business Days following receipt by the Administrative Agent of such written
notice.
(e) Additional Collateral. Notify the Administrative Agent, within ten
(10) days after the occurrence thereof, of the acquisition of any property by
the Borrower or any Restricted Subsidiary that is of the same type and character
of the Collateral subject to any Security Document, but that is not subject to
the existing Security Documents (taking into account any after-acquired property
provisions thereof), any Person's becoming a Subsidiary and any other event or
condition that may require additional action of any nature in order to preserve
the effectiveness and perfected status of the liens and security interests of
the Administrative Agent and the Lenders with respect to such property pursuant
to the Security Documents.
64
SECTION 9.12 Use of Proceeds. Use the proceeds of the Extensions of
Credit (a) to finance the acquisition of Capital Assets, (b) to pay in full and
terminate the Existing Credit Facility and (c) for working capital and general
corporate requirements of the Borrower and its Restricted Subsidiaries,
including the payment of certain fees and expenses incurred in connection with
the transactions.
SECTION 9.13 Real Property Collateral. Within seventy-five (75) days
after the date of a Ratings Downgrade the Borrower shall deliver to the
Administrative Agent, executed originals of the Mortgages with respect to all of
its owned properties other than those set forth on Schedule 9.13 in form and
substance acceptable to the Administrative Agent and all Mortgage Related
Documents.
SECTION 9.14 Further Assurances. Make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or the Required Lenders (through the Administrative Agent) may reasonably
require to document and consummate the transactions contemplated hereby and to
vest completely in and insure the Administrative Agent and the Lenders their
respective rights under this Agreement, the Notes, the Letters of Credit and the
other Loan Documents.
ARTICLE X
FINANCIAL COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the Borrower and its Restricted Subsidiaries on a
Consolidated basis will not:
SECTION 10.1 Maximum Leverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) Funded Debt on such date to (b) EBITDA for the four (4)
consecutive fiscal quarter period ending on or immediately prior to such date
(such ratio, the "Leverage Ratio") to be greater than the corresponding ratio
set forth below:
Period Maximum Ratio
January 20, 2003 through July 4, 2004 2.25 to 1.00
Thereafter 2.00 to 1.00
65
SECTION 10.2 Minimum Fixed Charge Coverage Ratio. As of any fiscal
quarter end, permit the ratio of (a) the sum of (i) EBITDAR for the four (4)
consecutive fiscal quarter period ending on or immediately prior to such date
less (ii) Capital Expenditures not related to new unit construction for the four
(4) consecutive fiscal quarter period ending on or immediately prior to such
date to (b) the sum of (i) Rental Expense for the four (4) consecutive fiscal
quarter period ending on or immediately prior to such date plus (ii) Interest
Expense for the four (4) consecutive fiscal quarter period ending on or
immediately prior to such date plus (iii) the sum of all scheduled principal
payments made in respect of the Term Loan Facility pursuant to Section 4.3 for
the four (4) consecutive fiscal quarter period ending on or immediately prior to
such date to be less than 1.35 to 1.00.
SECTION 10.3 Maximum Adjusted Debt to EBITDAR. As of the end of any
fiscal quarter, permit the ratio of (a) Adjusted Debt as of such date to (b)
EBITDAR for the four (4) consecutive fiscal quarter period ending on or
immediately prior to such date to be greater than the corresponding ratio set
forth below:
Period Maximum Ratio
January 20, 2003 through July 4, 2004 4.90 to 1.00
July 5, 2004 through July 10, 2005 4.80 to 1.00
July 11, 2005 through July 9, 2006 4.60 to 1.00
Thereafter 4.50 to 1.00
SECTION 10.4 Minimum Tangible Net Worth. At any time, permit Tangible
Net Worth to be less than the sum of (a) an amount equal to eighty-five percent
(85%) of the Consolidated shareholders' equity as of January 19, 2003 less any
intangible assets plus (b) an amount equal to fifty percent (50%) of the
Consolidated Net Income earned in each fiscal quarter ending after January 19,
2003 (with no deduction for a net loss in any such fiscal quarter), plus (c) an
amount equal to fifty percent (50%) of the aggregate increases in Consolidated
shareholders' equity of the Borrower and its Subsidiaries after the Closing Date
by reason of the issuance and sale of capital stock or other equity interests of
the Borrower or any Subsidiary (other than issuances to the Borrower or a
Wholly-Owned Subsidiary), including upon any conversion of debt securities of
the Borrower into such capital stock or other equity interests.
SECTION 10.5 Maximum Capital Expenditures. Permit the aggregate amount
of all Capital Expenditures less Facility Improvement Capital Expenditures less
Capital Expenditures related to Permitted Sale-Leaseback Transactions in any
Fiscal Year to exceed the corresponding maximum amount set forth below:
Period Maximum Amount
2003 $142,000,000
2004 $117,000,000
2005 $126,000,000
2006 $137,000,000
2007 $139,000,000
67
Notwithstanding the foregoing, an amount equal to five percent (5%) of
any unused capital expenditure allowance with respect to any fiscal year may be
carried over to the immediately following fiscal year, on a non-cumulative
basis.
ARTICLE XI
NEGATIVE COVENANTS
Until all of the Obligations have been paid and satisfied in full and
the Commitments terminated, unless consent has been obtained in the manner set
forth in Section 14.11, the Borrower has not and will not and will not permit
any of its Restricted Subsidiaries to:
SECTION 11.1 Limitations on Debt. Create, incur, assume or suffer to
exist any Debt except:
(a) the Obligations (excluding Hedging Obligations permitted
pursuant to Section 11.1(b));
(b) Debt incurred in connection with a Hedging Agreement (i) with a
counterparty and upon terms and conditions (including interest rate) reasonably
satisfactory to the Administrative Agent or (ii) described on Schedule 11.1(b);
provided, that any counterparty that is a Lender shall be deemed satisfactory to
the Administrative Agent.
(c) Debt existing on the Closing Date and not otherwise permitted under
this Section 11.1, as set forth on Schedule 11.1(c), and the renewal,
refinancing, extension and replacement (but not the increase in the aggregate
principal amount) thereof;
(d)Debt of the Borrower and its Restricted Subsidiaries
incurred in connection with Capital Leases in an aggregate amount not to exceed
$10,000,000 on any date of determination;
(e) purchase money Debt of the Borrower and its Restricted
Subsidiaries in an aggregate amount not to exceed $5,000,000 on any date of
determination;
(f) Subordinated Debt; provided that in the case of each issuance of
Subordinated Debt, (i) no Default or Event of Default shall have occurred and be
continuing or would be caused by the issuance of such Subordinated Debt, (ii)
the Administrative Agent shall have received satisfactory written evidence that
the Borrower would be in compliance with all covenants contained in this
Agreement on a pro forma basis after giving effect to the issuance of any such
Subordinated Debt and (iii) the Borrower shall have complied with the
requirements of Section 4.4(b)(ii);
(g) unsecured Debt of the Borrower and its Restricted Subsidiaries not
otherwise permitted pursuant to this Section 11.1 in an aggregate principal
amount not to exceed $25,000,000 at any time; provided that, in each case, the
Borrower or such Restricted Subsidiary shall have complied with the requirements
of Section 4.4(b)(i);
68
(h) Guaranty Obligations in favor of the Administrative Agent
for the benefit of the Administrative Agent and the Lenders; and
(i) Debt owed by any Restricted Subsidiary to the Borrower,
by the Borrower to any Restricted Subsidiary, or by any Restricted Subsidiary
to another Restricted Subsidiary;
(j) Guaranty Obligations incurred by Borrower with respect to Debt
of any Restricted Subsidiary;
(k) Debt consisting of Capital Leases entered into
pursuant to Permitted Sale-Leaseback Transactions;
(l) Guaranty Obligations with respect to (i) the Permitted Franchisee
Finance Program and (ii) other Debt permitted pursuant to subsections (a)
through (g) of this Section 11.1, all in an aggregate amount not to exceed
$50,000,000 at any time; and
(m) Indorsement of negotiable instruments for deposit or collection or
similar transactions in the ordinary course of business; surety bonds and appeal
bonds required in the ordinary course of business or in connection with the
enforcement of rights or claims of the Borrower or any Restricted Subsidiary or
in connection with judgments that do not result in a Default or Event of
Default;
provided, that no agreement or instrument with respect to Debt permitted to be
incurred by this Section (other than the Indenture) shall restrict, limit or
otherwise encumber (by covenant or otherwise) the ability of any Subsidiary of
the Borrower to make any payment to the Borrower or any of its Subsidiaries (in
the form of dividends, intercompany advances or otherwise) for the purpose of
enabling the Borrower to pay the Obligations and further provided, that in no
event shall the Borrower or any of its Subsidiaries incur, assume or suffer to
exist any Guaranty Obligations with respect to indebtedness obligations of any
Unrestricted Subsidiary.
SECTION 11.2 Limitations on Liens. Create, incur, assume or suffer to
exist, any Lien on or with respect to any of its assets or properties
(including, without limitation, shares of capital stock or other ownership
interests), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or
levies not yet due or as to which the period of grace (not to exceed thirty (30)
days), if any, related thereto has not expired or which are being contested in
good faith and by appropriate proceedings if adequate reserves are maintained to
the extent required by GAAP;
(b) Liens imposed by law, including Liens arising with respect to the
claims of materialmen, mechanics, carriers, warehousemen, processors or
landlords for labor, materials, supplies or rentals and other similar Liens
incurred in the ordinary course of business, (i) securing obligations which are
not overdue for a period of more than thirty (30) days or (ii) which are being
contested in good faith and by appropriate proceedings;
69
(c) Liens consisting of deposits or pledges made in the ordinary course
of business in connection with, or to secure payment of, obligations under
workers' compensation, unemployment insurance or similar legislation, or to
secure the performance of bids, trade contracts, leases, statutory obligations,
surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(d) Liens constituting encumbrances in the nature of zoning
restrictions, easements and rights or restrictions of record on the use of real
property, which in the aggregate are not substantial in amount and which do not,
in any case, detract from the value of such property or impair the use thereof
in the ordinary conduct of business;
(e) Attachment or judgment Liens not giving rise to an Event of
Default;
(f) Leases or subleases granted to others not interfering with
the ordinary conduct of business of the Borrower or any of its Restricted
Subsidiaries;
(g) Liens in favor of a trustee in an indenture relating to the
Borrower's public Debt to the extent such Liens secure only customary
compensation and reimbursement obligations of such trustee under such Indenture;
(h) Liens of the Administrative Agent for the benefit of the
Administrative Agent and the Lenders;
(i) Liens not otherwise permitted by this Section 11.2 and in
existence on the Closing Date and described on Schedule 11.2;
(j) Liens for notice purposes only arising in connection with Permitted
Sale-Leaseback Transactions provided that, with respect to each Permitted
Sale-Leaseback Transaction, such notice Liens extend only to the property
subject to such Permitted Sale-Leaseback Transaction;
(k) Liens securing Debt permitted under Sections 11.1(d) and (e);
provided that (i) such Liens shall be created substantially simultaneously with
the acquisition or lease of the related asset or refinance of such Debt, and
(ii) such Liens do not at any time encumber any property other than the property
financed by such Debt;
(l) non-exclusive licenses of intellectual property granted in the
ordinary course of business; and
(m) other Liens not otherwise permitted by this Section 11.2 in
an aggregate amount not to exceed $2,000,000 at any time.
70
SECTION 11.3 Limitations on Loans, Advances, Investments and
Acquisitions. Purchase, own, invest in or otherwise acquire, directly or
indirectly, any capital stock, interests in any partnership or joint venture
(including, without limitation, the creation or capitalization of any Restricted
Subsidiary), evidence of Debt (other than Guaranty Obligations permitted
pursuant to Section 11.1) or other obligation or security, substantially all or
a portion of the business or assets of any other Person or any other investment
or interest whatsoever in any other Person, or make or permit to exist, directly
or indirectly, any loans, advances or extensions of credit to, or any investment
in cash or by delivery of property in, any Person except:
(a) investments (i) in Subsidiaries made prior to the Closing Date,
(ii) in Restricted Subsidiaries formed or acquired after the Closing Date so
long as the Borrower and its Subsidiaries comply with the applicable provisions
of Section 9.11 and (iii) the other loans, advances and investments made prior
to the Closing Date described on Schedule 11.3;
(b) investments in (i) marketable direct obligations issued or
unconditionally guaranteed by the United States of America or any agency thereof
maturing within ninety (90) days from the date of acquisition thereof, (ii)
commercial paper (A) maturing no more than ninety (90) days from the date of
creation thereof and currently having a rating of at least A-2 from Standard &
Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇ Companies, Inc. or P-2
from ▇▇▇▇▇'▇ Investors Service, Inc. or (B) maturing no more than one (1) year
from the date of creation thereof and currently having a rating of at least A-1
from Standard & Poor's Ratings Services, a division of The ▇▇▇▇▇▇-▇▇▇▇
Companies, Inc. or P-1 from ▇▇▇▇▇'▇ Investors Service, Inc., (iii) certificates
of deposit maturing no more than one hundred twenty (120) days from the date of
creation thereof issued by commercial banks incorporated under the laws of the
United States of America, each having combined capital, surplus and undivided
profits of not less than $500,000,000 and having a rating of "A" or better by a
nationally recognized rating agency; provided, that the aggregate amount
invested in such certificates of deposit shall not at any time exceed $5,000,000
for any one such certificate of deposit and $10,000,000 for any one such bank,
or (iv) time deposits maturing no more than thirty (30) days from the date of
creation thereof with commercial banks or savings banks or savings and loan
associations each having membership either in the FDIC or the deposits of which
are insured by the FDIC and in amounts not exceeding the maximum amounts of
insurance thereunder;
(c) investments by the Borrower or any of its Restricted Subsidiaries
in the form of acquisitions of all or substantially all of the business or a
line of business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person if such acquisition has been previously
approved in writing by the Required Lenders;
(d) Hedging Agreements permitted pursuant to Section 11.1 and
any commodity swap or other agreement or arrangement related to commodity
prices;
(e) purchases of assets in the ordinary course of business;
(f) investments in franchisees of the Borrower not to exceed
$50,000,000 in the aggregate at any time;
71
(g) loans and advances to officers and employees of the Borrower and
its Subsidiaries in the ordinary course of the business of the Borrower and its
Subsidiaries as presently conducted in an aggregate principal amount not to
exceed $2,000,000 at any time outstanding;
(h) other non-speculative investments of the Borrower and its
Restricted Subsidiaries not otherwise permitted pursuant to this Section 11.3
not to exceed $25,000,000 in the aggregate at any time;
(i) investments pursuant to the Permitted Franchisee Financing
Program in an amount not to exceed $5,000,000 at any time outstanding; and
(j) investments by the Borrower or any of its Restricted Subsidiaries
in the form of acquisitions of all or substantially all of the business or a
line of business (whether by the acquisition of capital stock, assets or any
combination thereof) of any other Person if the Borrower and its Restricted
Subsidiaries promptly comply with Section 9.11 hereof (each, a "Permitted
Acquisition"); provided that:
(i) the Person to be acquired shall be a going concern,
engaged in a business, or the assets to be acquired shall be used in a business,
similar or complimentary to the line of business of the Borrower and its
Subsidiaries, and such acquisition shall have been approved by the board of
directors or equivalent governing body (or the shareholders) of the seller
and/or the Person to be acquired;
(ii) the Borrower or its Subsidiary, as applicable,
shall be the surviving Person and no Change in Control shall have been effected
thereby;
(iii) the Borrower or its Subsidiary, as applicable, is in
compliance with the covenants contained in Article X after giving effect to such
acquisition;
(iv) no Default or Event of Default shall have occurred
and be continuing both before and after giving effect to the acquisition;
(v) the Borrower shall demonstrate, to the reasonable
satisfaction of the Administrative Agent (A) pro forma compliance with the
covenants contained in Article X;
(vi) the Borrower shall deliver written notice of such
proposed acquisition to the Administrative Agent, which notice shall include the
proposed closing date of the acquisition, not less than ten (10) Business Days
prior to such proposed closing date;
(vii) to the extent requested by the Administrative Agent, the
Borrower shall deliver to the Administrative Agent copies of (A) the Permitted
Acquisition Documents and (B) the Permitted Acquisition Diligence Information
within a reasonable period of time before or after the proposed closing date of
such acquisition; and
(viii) the Borrower shall obtain the prior written consent of
the Required Lenders prior to the consummation of any acquisition, or series of
related acquisitions, if the aggregate total consideration to be paid in
connection with such proposed acquisition or series of related acquisitions
would exceed $50,000,000 in the aggregate during the term of the Credit Facility
from and after January 1, 2003.
P
SECTION 11.4 Limitations on Mergers and Liquidation. Merge, consolidate
or enter into any similar combination with any other Person or liquidate,
wind-up or dissolve itself (or suffer any liquidation or dissolution) except:
(a) any Wholly-Owned Subsidiary of the Borrower may merge with the
Borrower or any other Wholly-Owned Subsidiary of the Borrower; provided that in
any merger involving the Borrower, the Borrower shall be the surviving entity.
(b) any Wholly-Owned Subsidiary of the Borrower may merge into the
Person such Wholly-Owned Subsidiary was formed to acquire in connection with an
acquisition permitted by Section 11.3(c) or 11.3(i); and
(c) any Wholly-Owned Subsidiary of the Borrower may wind-up
into the Borrower or any other Wholly-Owned Subsidiary of the Borrower.
SECTION 11.5 Limitations on Sale of Assets. Convey, sell, lease,
assign, transfer or otherwise dispose of any of its property, business or assets
(including, without limitation, the sale of any receivables and leasehold
interests and any sale-leaseback or similar transaction), whether now owned or
hereafter acquired except:
(a) the sale of (i) inventory and (ii) equipment acquired
after the Closing Date and sold to franchisees, all in the ordinary course of
business;
(b) the sale of any property or assets (i) pursuant to a Permitted
Sale-Leaseback Transaction or (ii) that are existing restaurant units not owned
by the Borrower or any Restricted Subsidiary on the Closing Date;
(c) the sale of obsolete assets no longer used or usable in the
business of the Borrower or any of its Subsidiaries;
(d) the transfer of assets to the Borrower or any Wholly-Owned
Subsidiary of the Borrower pursuant to Section 11.4(c);
(e) the sale or discount without recourse of accounts receivable
arising in the ordinary course of business in connection with the compromise or
collection thereof;
(f) the disposition of any Hedging Agreement or any
commodity swap or other agreement or arrangement related to commodity
prices;
(g) the sale of restaurant units owned by the Borrower or any
Restricted Subsidiary to franchisees not to exceed (i) one hundred (100) such
sales during any Fiscal Year and (ii) three hundred seventy-five (375) such
sales during the term of the Credit Facility; and
72
(h) the sale or other disposition of assets by the Borrower or any
Restricted Subsidiary not otherwise permitted under this Section 11.5; provided
that (i) as of the time of such sale or other disposition no Default or Event of
Default shall be continuing or would result therefrom, (ii) any such sale shall
be for fair value for cash consideration only, and (iii) the Borrower shall have
complied with the requirements of Section 4.4(b).
SECTION 11.6 Limitations on Dividends and Distributions. Declare or pay
any dividends upon any of its capital stock or other equity interests; purchase,
redeem, retire or otherwise acquire, directly or indirectly, any shares of its
capital stock or other equity interests, or make any distribution of cash,
property or assets among the holders of shares of its capital stock or other
equity interests (all such payments or other distributions, "Distributions"), or
make any change in its capital structure which such change in its capital
structure could reasonably be expected to have a Material Adverse Effect;
provided that:
(a) the Borrower or any Restricted Subsidiary may pay dividends in
shares of its own capital stock;
(b) the Borrower or any Restricted Subsidiary may pay dividends
and make distributions to cover the net amount of all tax payments required on
pass-through taxable income ;
(c) the Borrower may acquire capital stock of the Borrower, provided
that (i) the aggregate purchase price for all such capital stock acquired on or
after the Closing Date shall not exceed $15,000,000 in the aggregate and (ii)
immediately after any such acquisition, the Borrower would not be in Default
under this Agreement;
(d) the Borrower or any Restricted Subsidiary may make Distributions of
up to $35,000,000 in aggregate of the Net Cash Proceeds (after giving effect to
any prepayment required by Section 4.4(b)(ii)) of any issuance of Subordinated
Debt by the Borrower or any Restricted Subsidiary; and
(e) any Restricted Subsidiary may pay cash dividends to the
Borrower or any other Restricted Subsidiary.
SECTION 11.7 Limitations on Exchange and Issuance of Capital Stock.
Issue, sell or otherwise dispose of any class or series of capital stock that,
by its terms or by the terms of any security into which it is convertible or
exchangeable, is, or upon the happening of an event or passage of time would be,
(a) convertible or exchangeable into Debt or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due.
SECTION 11.8 Transactions with Affiliates. Except for transactions
permitted by 11.3, 11.6 and 11.7, directly or indirectly (a) make any loan or
advance to, or purchase or assume any note or other obligation to or from, any
of its officers, directors, shareholders or other Affiliates, or to or from any
member of the immediate family of any of its officers, directors, shareholders
or other Affiliates, or subcontract any operations to any of its Affiliates or
(b) enter into, or be a party to, any other transaction not described in clause
(a) above with any of its Affiliates, except pursuant to the reasonable
requirements of its business and upon fair and reasonable terms that are no less
favorable to it than it would obtain in a comparable arm's length transaction
with a Person not its Affiliate.
73
SECTION 11.9 Certain Accounting Changes; Organizational Documents. (a)
Change its Fiscal Year end, or make any change in its accounting treatment and
reporting practices except as required by GAAP or (b) amend, modify or change
its articles of incorporation (or corporate charter or other similar
organizational documents) in any manner adverse in any respect to the rights or
interests of the Lenders or amend, modify or change its bylaws (or other similar
documents) in any manner adverse in any respect to the rights or interests of
the Lenders.
SECTION 11.10 Amendments; Payments and Prepayments of Subordinated
Debt. Amend or modify (or permit the modification or amendment of) any of the
terms or provisions of any Subordinated Debt, or cancel or forgive, make any
voluntary or optional payment or prepayment on, or redeem or acquire for value
(including, without limitation, by way of depositing with any trustee with
respect thereto money or securities before due for the purpose of paying when
due) any Subordinated Debt.
SECTION 11.11 Restrictive Agreements.
(a) Enter into any Debt (other than the Obligations) (i) which contains
any negative pledge on assets prohibiting any Liens hereunder or, with respect
to Debt in excess of $5,000,000, covenants more restrictive than the provisions
of Articles IX, X and XI hereof, or (ii) which restricts, limits or otherwise
encumbers its ability to incur Liens hereunder.
(b) Enter into or permit to exist any agreement (other than the
Indenture) which impairs or limits the ability of any Restricted Subsidiary of
the Borrower to pay dividends to the Borrower.
SECTION 11.12 Nature of Business. Substantively alter in any material
respect the character or conduct of the business conducted by the Borrower and
its Restricted Subsidiaries as of the Closing Date.
SECTION 11.13 Impairment of Security Interests. Take or omit to take
any action, which could have the result of materially impairing the security
interests in favor of the Administrative Agent with respect to the Collateral or
grant to any Person (other than the Administrative Agent for the benefit of
itself and the Lenders pursuant to the Security Documents) any ownership or
security interest whatsoever in the Collateral, except for Liens permitted under
Section 11.2 and asset sales permitted under Section 11.5.
74
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1 Events of Default. Each of the following shall constitute
an Event of Default, whatever the reason for such event and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment or order of any court or any order, rule or regulation of any
Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement
Obligations. The Borrower shall default in any payment of principal of any
Loan, Note or Reimbursement Obligation when and as due (whether at
maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower shall default in the payment
when and as due (whether at maturity, by reason of acceleration or otherwise) of
interest on any Loan, Note or Reimbursement Obligation or the payment of any
other Obligation, and such default shall continue for a period of three (3)
Business Days.
(c) Misrepresentation. Any representation, warranty, certification or
statement of fact made or deemed made by or on behalf of the Borrower or any
Subsidiary under this Agreement, any other Loan Document or in any document
delivered in connection herewith or therewith that is subject to materiality or
Material Adverse Effect qualifications, shall be incorrect or misleading in any
respect when made or deemed made, or any representation, warranty, certification
or statement of fact made or deemed made by or on behalf of the Borrower or any
Subsidiary under this Agreement, any other Loan Document, or in any document
delivered in connection herewith or therewith that is not subject to materiality
or Material Adverse Effect qualifications, shall be incorrect or misleading in
any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants. The Borrower shall
default in the performance or observance of any covenant or agreement contained
in Sections 8.1, 8.2, 8.5(e)(i), 9.10, 9.11, 9.12 or 9.13 or Articles X or XI of
this Agreement.
(e) Default in Performance of Other Covenants and Conditions. The
Borrower or any Subsidiary thereof shall default in the performance or
observance of any term, covenant, condition or agreement contained in this
Agreement (other than as specifically provided for otherwise in this Section
12.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Borrower by
the Administrative Agent.
(f) [Intentionally Omitted].
(g) Debt Cross-Default. The Borrower or any of its Subsidiaries shall
(i) default in the payment of any Debt (other than the Notes or any
Reimbursement Obligation) the aggregate outstanding amount of which Debt is in
excess of $5,000,000 beyond the period of grace if any, provided in the
instrument or agreement under which such Debt was created, or (ii) default in
the observance or performance of any other agreement or condition relating to
any Debt (other than the Notes or any Reimbursement Obligation) the aggregate
75
outstanding amount of which Debt is in excess of $5,000,000 or contained in any
instrument or agreement evidencing, securing or relating thereto or any other
event shall occur or condition exist, the effect of which default or other event
or condition is to cause, or to permit the holder or holders of such Debt (or a
trustee or agent on behalf of such holder or holders) to cause, with the giving
of notice if required, any such Debt to become due prior to its stated maturity
(any applicable grace period having expired).
(h) [Intentionally Omitted].
(i) Change in Control. Any person or group of persons (within the
meaning of Section 13(d) of the Securities Exchange Act of 1934, as amended)
shall obtain ownership or control in one or more series of transactions of more
than thirty percent (30%) of the common stock or thirty percent (30%) of the
voting power of the Borrower entitled to vote in the election of members of the
board of directors of the Borrower or there shall have occurred under any
indenture or other instrument evidencing any Debt in excess of $5,000,000 any
"change in control" (as defined in such indenture or other evidence of Debt)
obligating the Borrower to repurchase, redeem or repay all or any part of the
Debt or capital stock provided for therein (any such event, a "Change in
Control").
(j) Voluntary Bankruptcy Proceeding. The Borrower or any Subsidiary
thereof shall (i) commence a voluntary case under the federal bankruptcy laws
(as now or hereafter in effect), (ii) file a petition seeking to take advantage
of any other laws, domestic or foreign, relating to bankruptcy, insolvency,
reorganization, winding up or composition for adjustment of debts, (iii) consent
to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv)
apply for or consent to, or fail to contest in a timely and appropriate manner,
the appointment of, or the taking of possession by, a receiver, custodian,
trustee, or liquidator of itself or of a substantial part of its property,
domestic or foreign, (v) admit in writing its inability to pay its debts as they
become due, (vi) make a general assignment for the benefit of creditors, or
(vii) take any corporate action for the purpose of authorizing any of the
foregoing.
(k) Involuntary Bankruptcy Proceeding. A case or other proceeding shall
be commenced against the Borrower or any Subsidiary thereof in any court of
competent jurisdiction seeking (i) relief under the federal bankruptcy laws (as
now or hereafter in effect) or under any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or adjustment of
debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or
the like for the Borrower or any Subsidiary thereof or for all or any
substantial part of their respective assets, domestic or foreign, and such case
or proceeding shall continue without dismissal or stay for a period of sixty
(60) consecutive days, or an order granting the relief requested in such case or
proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(l) Failure of Agreements. Any provision of this Agreement or any
provision of any other Loan Document shall for any reason cease to be valid and
binding on the Borrower or Subsidiary party thereto or any such Person or their
representative shall so state in writing, or any Loan Document shall for any
reason cease to create a valid and perfected first priority Lien on, or security
interest in, any of the collateral purported to be covered thereby, in each case
other than in accordance with the express terms hereof or thereof.
76
(m) Termination Event. The occurrence of any of the following events:
(i) the Borrower or any ERISA Affiliate fails to make full payment when due of
all amounts which, under the provisions of any Pension Plan or Section 412 of
the Code, the Borrower or any ERISA Affiliate is required to pay as
contributions thereto, (ii) an accumulated funding deficiency in excess of
$1,000,000 occurs or exists, whether or not waived, with respect to any Pension
Plan, (iii) a Termination Event or (iv) the Borrower or any ERISA Affiliate as
employers under one or more Multiemployer Plans makes a complete or partial
withdrawal from any such Multiemployer Plan and the plan sponsor of such
Multiemployer Plans notifies such withdrawing employer that such employer has
incurred a withdrawal liability requiring payments in an amount exceeding
$1,000,000.
(n) Judgment. A judgment or order for the payment of money (in either
case, that is not fully covered by insurance as to which the insurer has
acknowledged liability) which causes the aggregate amount of all such judgments
to exceed $5,000,000 in any Fiscal Year shall be entered against the Borrower or
any of its Subsidiaries by any court and such judgment or order shall continue
without discharge or stay for a period of thirty (30) days.
(o) Environmental. Any one or more Environmental Claims shall have been
asserted against the Borrower or any of its Subsidiaries; the Borrower and its
Subsidiaries would be reasonable likely to incur liability as a result thereof;
and such liability would be reasonably likely, individually or in the aggregate,
to have a Material Adverse Effect.
SECTION 12.2 Remedies. Upon the occurrence of an Event of Default, with
the consent of the Required Lenders, the Administrative Agent may, or upon the
request of the Required Lenders, the Administrative Agent shall, by notice to
the Borrower:
(a) Acceleration; Termination of Facilities. Declare the principal of
and interest on the Loans, the Notes and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the
Administrative Agent under this Agreement or any of the other Loan Documents
(including, without limitation, all L/C Obligations, whether or not the
beneficiaries of the then outstanding Letters of Credit shall have presented or
shall be entitled to present the documents required thereunder) and all other
Obligations (other than Hedging Obligations), to be forthwith due and payable,
whereupon the same shall immediately become due and payable without presentment,
demand, protest or other notice of any kind, all of which are expressly waived,
anything in this Agreement or the other Loan Documents to the contrary
notwithstanding, and terminate the Credit Facility and any right of the Borrower
to request borrowings or Letters of Credit thereunder; provided, that upon the
occurrence of an Event of Default specified in Section 12.1(j) or (k), the
Credit Facility shall be automatically terminated and all Obligations (other
than Hedging Obligations) shall automatically become due and payable without
presentment, demand, protest or other notice of any kind, all of which are
expressly waived, anything in this Agreement or in any other Loan Document to
the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with
respect to which any amount shall remain undrawn and unexpired at the time of an
acceleration pursuant to the preceding paragraph, the Borrower shall at such
time deposit in a cash collateral account opened by the Administrative Agent an
77
amount equal to the aggregate then undrawn and unexpired amount of such Letters
of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of
Credit, and the unused portion thereof after all such Letters of Credit shall
have expired or been fully drawn upon, if any, shall be applied to repay the
other Obligations on a pro rata basis. After all such Letters of Credit shall
have expired or been fully drawn upon, the Reimbursement Obligation shall have
been satisfied and all other Obligations shall have been paid in full, the
balance, if any, in such cash collateral account shall be returned to the
Borrower.
(c) Rights of Collection. Exercise on behalf of the Lenders all of its
other rights and remedies under this Agreement, the other Loan Documents and
Applicable Law, in order to satisfy all of the Borrower's Obligations.
SECTION 12.3 Rights and Remedies Cumulative; Non-Waiver; etc. The
enumeration of the rights and remedies of the Administrative Agent and the
Lenders set forth in this Agreement is not intended to be exhaustive and the
exercise by the Administrative Agent and the Lenders of any right or remedy
shall not preclude the exercise of any other rights or remedies, all of which
shall be cumulative, and shall be in addition to any other right or remedy given
hereunder or under the other Loan Documents or that may now or hereafter exist
at law or in equity or by suit or otherwise. No delay or failure to take action
on the part of the Administrative Agent or any Lender in exercising any right,
power or privilege shall operate as a waiver thereof, nor shall any single or
partial exercise of any such right, power or privilege preclude any other or
further exercise thereof or the exercise of any other right, power or privilege
or shall be construed to be a waiver of any Event of Default. No course of
dealing between the Borrower, the Administrative Agent and the Lenders or their
respective agents or employees shall be effective to change, modify or discharge
any provision of this Agreement or any of the other Loan Documents or to
constitute a waiver of any Event of Default.
ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1 Appointment. Each of the Lenders hereby irrevocably
designates and appoints Wachovia as Administrative Agent of such Lender under
this Agreement and the other Loan Documents for the term hereof and each such
Lender irrevocably authorizes Wachovia, as Administrative Agent for such Lender,
to take such action on its behalf under the provisions of this Agreement and the
other Loan Documents and to exercise such powers and perform such duties as are
expressly delegated to the Administrative Agent by the terms of this Agreement
and such other Loan Documents, together with such other powers as are reasonably
incidental thereto. Notwithstanding any provision to the contrary elsewhere in
this Agreement or such other Loan Documents, the Administrative Agent shall not
have any duties or responsibilities, except those expressly set forth herein and
therein, or any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or the other Loan Documents or otherwise exist
against the Administrative Agent. Any reference to the Administrative Agent in
this Article XIII shall be deemed to refer to the Administrative Agent solely in
its capacity as Administrative Agent and not in its capacity as a Lender.
78
SECTION 13.2 Delegation of Duties. The Administrative Agent may execute
any of its respective duties under this Agreement and the other Loan Documents
by or through agents or attorneys-in-fact and shall be entitled to advice of
counsel concerning all matters pertaining to such duties. The Administrative
Agent shall not be responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by the Administrative Agent with reasonable care.
SECTION 13.3 Exculpatory Provisions. Neither the Administrative Agent
nor any of its officers, directors, employees, agents, attorneys-in-fact,
Subsidiaries or Affiliates shall be (a) liable for any action lawfully taken or
omitted to be taken by it or such Person under or in connection with this
Agreement or the other Loan Documents (except for actions occasioned directly by
its or such Person's own gross negligence or willful misconduct), or (b)
responsible in any manner to any of the Lenders for any recitals, statements,
representations or warranties made by the Borrower or any of its Subsidiaries or
any officer thereof contained in this Agreement or the other Loan Documents or
in any certificate, report, statement or other document referred to or provided
for in, or received by the Administrative Agent under or in connection with,
this Agreement or the other Loan Documents or for the value, validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
the other Loan Documents or for any failure of the Borrower or any of its
Subsidiaries to perform its obligations hereunder or thereunder. The
Administrative Agent shall not be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of the
agreements contained in, or conditions of, this Agreement, or to inspect the
properties, books or records of the Borrower or any of its Subsidiaries.
SECTION 13.4 Reliance by the Administrative Agent. The Administrative
Agent shall be entitled to rely, and shall be fully protected in relying, upon
any note, writing, resolution, notice, consent, certificate, affidavit, letter,
cablegram, telegram, telecopy, telex or teletype message, statement, order or
other document or conversation believed by it to be genuine and correct and to
have been signed, sent or made by the proper Person or Persons and upon advice
and statements of legal counsel, independent accountants and other experts
selected by the Administrative Agent. The Administrative Agent may deem and
treat the payee of any Note as the owner thereof for all purposes unless such
Note shall have been transferred in accordance with Section 14.10. The
Administrative Agent shall be fully justified in failing or refusing to take any
action under this Agreement and the other Loan Documents unless it shall first
receive such advice or concurrence of the Required Lenders (or, when expressly
required hereby or by the relevant other Loan Documents, all the Lenders) as it
deems appropriate or it shall first be indemnified to its satisfaction by the
Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action except for its own gross
negligence or willful misconduct. The Administrative Agent shall in all cases be
fully protected in acting, or in refraining from acting, under this Agreement
and the Notes in accordance with a request of the Required Lenders (or, when
expressly required hereby, all the Lenders), and such request and any action
taken or failure to act pursuant thereto shall be binding upon all the Lenders
and all future holders of the Notes.
79
SECTION 13.5 Notice of Default. The Administrative Agent shall not be
deemed to have knowledge or notice of the occurrence of any Default or Event of
Default unless it has received notice from a Lender or the Borrower referring to
this Agreement, describing such Default or Event of Default and stating that
such notice is a "notice of default". In the event that the Administrative Agent
receives such a notice, it shall promptly give notice thereof to the Lenders.
The Administrative Agent shall take such action with respect to such Default or
Event of Default as shall be reasonably directed by the Required Lenders (or,
when expressly required hereby, all the Lenders); provided that unless and until
the Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default or Event of Default as it shall
deem advisable in the best interests of the Lenders, except to the extent that
other provisions of this Agreement expressly require that any such action be
taken or not be taken only with the consent and authorization or the request of
the Lenders or Required Lenders, as applicable.
SECTION 13.6 Non-Reliance on the Administrative Agent and Other
Lenders. Each Lender expressly acknowledges that neither the Administrative
Agent nor any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates has made any representations or
warranties to it and that no act by the Administrative Agent hereafter taken,
including any review of the affairs of the Borrower or any of its Subsidiaries,
shall be deemed to constitute any representation or warranty by the
Administrative Agent to any Lender. Each Lender represents to the Administrative
Agent that it has, independently and without reliance upon the Administrative
Agent or any other Lender, and based on such documents and information as it has
deemed appropriate, made its own appraisal of and investigation into the
business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries and made its own decision
to make its Loans and issue or participate in Letters of Credit hereunder and
enter into this Agreement. Each Lender also represents that it will,
independently and without reliance upon the Administrative Agent or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit analysis, appraisals and decisions
in taking or not taking action under this Agreement and the other Loan
Documents, and to make such investigation as it deems necessary to inform itself
as to the business, operations, property, financial and other condition and
creditworthiness of the Borrower and its Subsidiaries. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Administrative Agent hereunder or by the other Loan Documents, the
Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business, operations,
property, financial and other condition or creditworthiness of the Borrower or
any of its Subsidiaries which may come into the possession of the Administrative
Agent or any of its respective officers, directors, employees, agents,
attorneys-in-fact, Subsidiaries or Affiliates.
SECTION 13.7 Indemnification. The Lenders agree to indemnify the
Administrative Agent in its capacity as such and (to the extent not reimbursed
by the Borrower and without limiting the obligation of the Borrower to do so),
ratably according to the respective amounts of their Revolving Credit Commitment
Percentages or Term Loan Percentages, as applicable, from and against any and
all liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind whatsoever which may at any
time (including, without limitation, at any time following the payment of the
Notes or any Reimbursement Obligation) be imposed on, incurred by or asserted
against the Administrative Agent in any way relating to or arising out of this
Agreement or the other Loan Documents, or any documents, reports or other
information provided to the Administrative Agent or any Lender or contemplated
80
by or referred to herein or therein or the transactions contemplated hereby or
thereby or any action taken or omitted by the Administrative Agent under or in
connection with any of the foregoing; provided that no Lender shall be liable
for the payment of any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting directly from the Administrative Agent's bad faith, gross negligence
or willful misconduct. The agreements in this Section 13.7 shall survive the
payment of the Notes, any Reimbursement Obligation and all other amounts payable
hereunder and the termination of this Agreement.
SECTION 13.8 The Administrative Agent in Its Individual Capacity. The
Administrative Agent and its respective Subsidiaries and Affiliates may make
loans to, accept deposits from and generally engage in any kind of business with
the Borrower as though the Administrative Agent were not the Administrative
Agent hereunder. With respect to any Loans made or renewed by it and any Note
issued to it and with respect to any Letter of Credit issued by it or
participated in by it, the Administrative Agent shall have the same rights and
powers under this Agreement and the other Loan Documents as any Lender and may
exercise the same as though it were not the Administrative Agent, and the terms
"Lender" and "Lenders" shall include the Administrative Agent in its individual
capacity.
SECTION 13.9 Resignation of the Administrative Agent; Successor
Administrative Agent. Subject to the appointment and acceptance of a successor
as provided below, the Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, which successor shall have minimum capital and surplus of at least
$500,000,000. If no successor Administrative Agent shall have been so appointed
by the Required Lenders and shall have accepted such appointment within thirty
(30) days after the Administrative Agent's giving of notice of resignation, then
the Administrative Agent may, on behalf of the Lenders, appoint a successor
Administrative Agent, which successor shall have minimum capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations hereunder. After any retiring Administrative Agent's resignation
hereunder as Administrative Agent, the provisions of this Section 13.9 shall
continue in effect for its benefit in respect of any actions taken or omitted to
be taken by it while it was acting as Administrative Agent.
SECTION 13.10 Documentation Agent and Syndication Agent. The
Documentation Agent and the Syndication Agent, in their respective capacities as
documentation and syndication agents, shall have no duties or responsibilities
under this Agreement or any other Loan Document.
81
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1 Notices.
(a) Method of Communication. Except as otherwise provided in this
Agreement, all notices and communications hereunder shall be in writing (for
purposes hereof, the term "writing" shall include information in electronic
format such as electronic mail and internet web pages), or by telephone
subsequently confirmed in writing. Any notice shall be effective if delivered by
hand delivery or sent via electronic mail, posting on an internet web page,
telecopy, recognized overnight courier service or certified mail, return receipt
requested, and shall be presumed to be received by a party hereto (i) on the
date of delivery if delivered by hand or sent by electronic mail, posting on an
internet web page, telecopy, (ii) on the next Business Day if sent by recognized
overnight courier service and (iii) on the third Business Day following the date
sent by certified mail, return receipt requested. A telephonic notice to the
Administrative Agent as understood by the Administrative Agent will be deemed to
be the controlling and proper notice in the event of a discrepancy with or
failure to receive a confirming written notice.
(b) Addresses for Notices. Notices to any party shall be sent to
it at the following addresses, or any other address as to which all the other
parties are notified in writing.
If to the Borrower: ▇▇▇▇ in the Box Inc.
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
With copies to: ▇▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
If to Wachovia as Wachovia Bank, National Association
Administrative Agent: Charlotte Plaza, CP-8
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: Syndication Agency
Services
Telephone No.: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy No.: (▇▇▇) ▇▇▇-▇▇▇▇
82
With copies to: Wachovia Bank, National Association
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ III
Telephone No.: ▇▇▇-▇▇▇-▇▇▇▇
Telecopy No.: ▇▇▇-▇▇▇-▇▇▇▇
If to any Lender: To the address set forth in the
Register
(c) Administrative Agent's Office. The Administrative Agent hereby
designates its office located at the address set forth above, or any subsequent
office which shall have been specified for such purpose by written notice to the
Borrower and Lenders, as the Administrative Agent's Office referred to herein,
to which payments due are to be made and at which Loans will be disbursed and
Letters of Credit issued.
SECTION 14.2 Expenses; Indemnity. The Borrower will (a) pay all
out-of-pocket expenses (including, without limitation, all costs of electronic
or internet distribution of any information hereunder) of the Administrative
Agent in connection with (i) the preparation, execution and delivery of this
Agreement and each other Loan Document, whenever the same shall be executed and
delivered, including, without limitation, all out-of-pocket syndication and due
diligence expenses and reasonable fees and disbursements of counsel for the
Administrative Agent and (ii) the preparation, execution and delivery of any
waiver, amendment or consent by the Administrative Agent or the Lenders relating
to this Agreement or any other Loan Document, including, without limitation,
reasonable fees and disbursements of counsel for the Administrative Agent, (b)
pay all reasonable out-of-pocket expenses of the Administrative Agent and each
Lender actually incurred in connection with the administration and enforcement
of any rights and remedies of the Administrative Agent and Lenders under the
Credit Facility, including, without limitation, in connection with any workout,
restructuring, bankruptcy or other similar proceeding, creating and perfecting
Liens in favor of Administrative Agent on behalf of Lenders pursuant to any
Security Document, enforcing any Obligations of, or collecting any payments due
from, the Borrower or any Guarantor by reason of an Event of Default (including
in connection with the sale of, collection from, or other realization upon any
of the Collateral or the enforcement of the Guaranty Agreement; consulting with
appraisers, accountants, engineers, attorneys and other Persons concerning the
nature, scope or value of any right or remedy of the Administrative Agent or any
Lender hereunder or under any other Loan Document or any factual matters in
connection therewith, which expenses shall include without limitation the
reasonable fees and disbursements of such Persons, and (c) defend, indemnify and
hold harmless the Administrative Agent and the Lenders, and their respective
parents, Subsidiaries, Affiliates, employees, agents, trustees, advisors,
officers and directors, from and against any obligations, losses, penalties,
fines, liabilities, settlements, damages, actions, judgments, suits,
disbursements, costs and expenses, suffered by any such Person in connection
with any claim (including, without limitation, any Environmental Claims),
investigation, litigation or other proceeding (whether or not the Administrative
Agent or any Lender is a party thereto) and the prosecution and defense thereof,
arising out of or in any way connected with the Loans, this Agreement, any other
Loan Document, or any documents, reports or other information provided to the
Administrative Agent or any Lender or contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby, including, without
limitation, reasonable attorney's and consultant's fees, except to the extent
that any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
83
SECTION 14.3 Set-off. In addition to any rights now or hereafter
granted under Applicable Law and not by way of limitation of any such rights,
upon and after the occurrence of any Event of Default and during the continuance
thereof, the Lenders and any assignee or participant of a Lender in accordance
with Section 14.10 are hereby authorized by the Borrower at any time or from
time to time, without notice to the Borrower or to any other Person, any such
notice being hereby expressly waived, to set off and to appropriate and to apply
any and all deposits (general or special, time or demand, including, but not
limited to, indebtedness evidenced by certificates of deposit, whether matured
or unmatured) and any other indebtedness at any time held or owing by the
Lenders, or any such assignee or participant to or for the credit or the account
of the Borrower against and on account of the Obligations irrespective of
whether or not (a) the Lenders shall have made any demand under this Agreement
or any of the other Loan Documents or (b) the Administrative Agent shall have
declared any or all of the Obligations to be due and payable as permitted by
Section 12.2 and although such Obligations shall be contingent or unmatured.
Notwithstanding the preceding sentence, each Lender agrees to notify the
Borrower and the Administrative Agent after any such set-off and application,
provided that the failure to give such notice shall not affect the validity of
such set-off and application.
SECTION 14.4 Governing Law. This Agreement, the Notes and the other
Loan Documents, unless otherwise expressly set forth therein, shall be governed
by, construed and enforced in accordance with the laws of the State of New York
(including Section 5-1401 and Section 5-1402 of the General Obligations Law of
the State of New York), without reference to the conflicts of law principles
thereof.
SECTION 14.5 Jurisdiction and Venue.
(a) Jurisdiction. The Borrower hereby irrevocably consents to the
personal jurisdiction of the state and federal courts located in Mecklenburg
County, North Carolina and New York, New York (and any courts from which an
appeal from any of such courts must or may be taken), in any action, claim or
other proceeding arising out of any dispute in connection with this Agreement,
the Notes and the other Loan Documents, any rights or obligations hereunder or
thereunder, or the performance of such rights and obligations. The Borrower
hereby irrevocably consents to the service of a summons and complaint and other
process in any action, claim or proceeding brought by the Administrative Agent
or any Lender in connection with this Agreement, the Notes or the other Loan
Documents, any rights or obligations hereunder or thereunder, or the performance
of such rights and obligations, on behalf of itself or its property, in the
manner specified in Section 14.1. Nothing in this Section 14.5 shall affect the
right of the Administrative Agent or any Lender to serve legal process in any
other manner permitted by Applicable Law or affect the right of the
Administrative Agent or any Lender to bring any action or proceeding against the
Borrower or its properties in the courts of any other jurisdictions.
84
(b) Venue. The Borrower hereby irrevocably waives any objection it may
have now or in the future to the laying of venue in the aforesaid jurisdictions
in any action, claim or other proceeding arising out of or in connection with
this Agreement, any other Loan Document or the rights and obligations of the
parties hereunder or thereunder. The Borrower irrevocably waives, in connection
with such action, claim or proceeding, any plea or claim that the action, claim
or other proceeding has been brought in an inconvenient forum.
SECTION 14.6 Waiver of Jury Trial. THE ADMINISTRATIVE AGENT, EACH
LENDER AND THE BORROWER HEREBY ACKNOWLEDGE AND AGREE TO IRREVOCABLY WAIVE THEIR
RESPECTIVE RIGHTS TO A JURY TRIAL WITH RESPECT TO ANY ACTION, CLAIM OR OTHER
PROCEEDING ARISING OUT OF ANY DISPUTE, JUDICIAL PROCEEDING, CLAIM OR CONTROVERSY
IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR THE OTHER LOAN DOCUMENTS, ANY
RIGHTS OR OBLIGATIONS HEREUNDER OR THEREUNDER, OR THE PERFORMANCE OF SUCH RIGHTS
AND OBLIGATIONS.
SECTION 14.7 Reversal of Payments. To the extent the Borrower makes a
payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the
collateral which payments or proceeds or any part thereof are subsequently
invalidated, declared to be fraudulent or preferential, set aside and/or
required to be repaid to a trustee, receiver or any other party under any
bankruptcy law, state or federal law, common law or equitable cause, then, to
the extent of such payment or proceeds repaid, the Obligations or part thereof
intended to be satisfied shall be revived and continued in full force and effect
as if such payment or proceeds had not been received by the Administrative
Agent.
SECTION 14.8 Injunctive Relief; Punitive Damages.
(a) The Borrower recognizes that, in the event the Borrower fails to
perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders.
Therefore, the Borrower agrees that the Lenders, at the Lenders' option, shall
be entitled to temporary and permanent injunctive relief in any such case
without the necessity of proving actual damages.
(b) The Administrative Agent, the Lenders and the Borrower (on behalf
of itself and its Subsidiaries) hereby agree that no such Person shall have a
remedy of punitive or exemplary damages against any other party to a Loan
Document and each such Person hereby waives any right or claim to punitive or
exemplary damages that they may now have or may arise in the future in
connection with any Dispute, whether such Dispute is resolved through
arbitration or judicially.
SECTION 14.9 Accounting Matters. Except as otherwise expressly provided
herein, all terms of an accounting or financial nature shall be construed in
accordance with GAAP, as in effect from time to time, provided that, if the
Borrower notifies the Administrative Agent that the Borrower requests an
amendment to any provision hereof to eliminate the effect of any change
occurring after the date hereof in GAAP or in the application thereof on the
operation of such provision (or if the Administrative Agent notifies the
Borrower that the Required Lenders request an amendment to any provision hereof
85
for such purpose), regardless of whether any such notice is given before or
after such change in GAAP or in the application thereof, then such provision
shall be interpreted on the basis of GAAP as in effect and applied immediately
before such change shall have become effective until such notice shall have been
withdrawn or such provision amended in accordance therewith.
SECTION 14.10 Successors and Assigns; Participations.
(a) Benefit of Agreement. This Agreement shall be binding upon and
inure to the benefit of the Borrower, the Administrative Agent and the Lenders,
all future holders of the Notes, and their respective successors and assigns,
except that the Borrower shall not assign or transfer any of its rights or
obligations under this Agreement without the prior written consent of each
Lender.
(b) Assignment by Lenders. Each Lender may, in accordance with
Applicable Law, sell or assign to any Lender, any Affiliate of a Lender or in
the case of the Term Loans, any Approved Fund, and, with the consent of the
Borrower (so long as no Default or Event of Default has occurred and is
continuing) and the consent of the Administrative Agent, which consents shall
not be unreasonably withheld or delayed, assign to one or more other Eligible
Assignees (any of the foregoing assignees or purchasers, a "Purchasing Lender")
all or a portion of its interests, rights and obligations under this Agreement
and the other Loan Documents (including, without limitation, all or a portion of
the Extensions of Credit at the time owing to it and the Notes held by it);
provided that:
(i) each such assignment shall be of a constant, and
not a varying, percentage of the assigning Lender's rights and obligations
under this Agreement;
(ii) if less than all of the assigning Lender's Revolving
Credit Commitment or Term Loan Commitment, as applicable, is to be assigned, the
Commitment so assigned shall not be less than $5,000,000 with respect to the
Revolving Credit Facility and $1,000,000 (or otherwise agreed by the
Administrative Agent and the Borrower) with respect to the Term Loan Facility,
unless such sale or assignment is made to an existing Lender, to an Affiliate
thereof, or (with respect to any Term Loan) to an Approved Fund, in which case
no minimum amount shall apply;
(iii) the Purchasing Lender shall have delivered to the
Administrative Agent all United States Internal Revenue Service Forms required
pursuant to Section 5.11(e) and all of the parties to each such assignment shall
execute and deliver to the Administrative Agent, for its acceptance and
recording in the Register, an Assignment and Acceptance substantially in the
form of Exhibit G attached hereto (an "Assignment and Acceptance"), together
with (to the extent requested by any Purchasing Lender) any Note or Notes
subject to such assignment;
(iv) no assignment of a Revolving Credit Commitment, or
participation in L/C Obligations or Swingline Loans shall be made without the
prior written consent of the Administrative Agent, the Swingline Lender, the
Issuing Lender and (so long as no Default or Event of Default has occurred and
is continuing) the Borrower (which consents shall not be unreasonably withheld);
86
(v) where consent of the Borrower to an assignment to a
Purchasing Lender is required hereunder (including consent to an assignment to
an Approved Fund), the Borrower shall be deemed to have given its consent five
(5) Business Days after the date written notice thereof has been delivered by
the assigning Lender (through the Administrative Agent) unless such consent is
expressly refused by the Borrower prior to such fifth (5th) Business Day;
(vi) such assignment shall not, without the consent of the
Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission or apply to or qualify the Loans or the Notes
under the blue sky laws of any state; and
(vii) the assigning Lender shall pay to the Administrative
Agent an assignment fee of $3,500 upon the execution by such Lender of the
Assignment and Acceptance; provided that no such fee shall be payable upon any
assignment by a Lender to an Affiliate thereof; and provided further that, in
any case of contemporaneous assignments by a Lender (including a group of
affiliated Lenders that are funds managed by the same investment advisor) to a
single assignee or more than one fund managed by the same investment advisor
(which funds are not then Lenders hereunder), only a single $3,500 fee shall be
payable for all such contemporaneous assignments..
Upon such execution, delivery, acceptance and recording, from and after the
effective date specified in each Assignment and Acceptance, which effective date
shall be at least five (5) Business Days after the execution thereof (unless
otherwise agreed to by the Administrative Agent), (A) the Purchasing Lender
thereunder shall be a party hereto and, to the extent provided in such
Assignment and Acceptance, have the rights and obligations of a Lender hereby
and (B) the Lender thereunder shall, to the extent provided in such assignment,
be released from its obligations under this Agreement.
(c) Rights and Duties Upon Assignment. By executing and delivering an
Assignment and Acceptance, the assigning Lender thereunder and the Purchasing
Lender thereunder confirm to and agree with each other and the other parties
hereto as set forth in such Assignment and Acceptance.
(d) Register. The Administrative Agent shall maintain a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Lenders and the amount of the Extensions of
Credit with respect to each Lender from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Administrative Agent and the Lenders may treat each person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
and by any Lender solely to the extent of any entries applicable to such Lender
at any reasonable time and from time to time upon reasonable prior notice.
(e) Issuance of New Notes. Upon its receipt of an Assignment and
Acceptance executed by an assigning Lender and a Purchasing Lender together with
any Note or Notes (if applicable) subject to such assignment and (if applicable)
the written consent to such assignment, the Administrative Agent shall, if such
Assignment and Acceptance has been completed and is substantially in the form of
Exhibit G:
87
(i) accept such Assignment and Acceptance;
(ii) record the information contained therein in the
Register;
(iii) give prompt notice thereof to the Lenders and the
Borrower; and
(iv) promptly deliver a copy of such Assignment and
Acceptance to the Borrower.
Within five (5) Business Days after receipt of notice, the Borrower shall
execute and deliver to the Administrative Agent, in exchange for the surrendered
Note or Notes, if any, a new Note or Notes to the order of such Purchasing
Lender (to the extent requested thereby) in amounts equal to the Revolving
Credit Commitment and/or the Term Loan Commitment assumed by it pursuant to such
Assignment and Acceptance and a new Note or Notes to the order of the assigning
Lender (to the extent requested thereby) in an amount equal to the Revolving
Credit Commitment and/or the Term Loan Commitment retained by it hereunder. Such
new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the assigned Notes delivered to the assigning Lender.
Each surrendered Note or Notes shall be canceled and returned to the Borrower.
Notwithstanding anything in this Agreement to the contrary, any Lender which has
not been issued a Note or Notes hereunder may at any time deliver a written
request for a Note or Notes to the Administrative Agent and the Borrower. Within
five (5) Business Days after receipt of notice, the Borrower shall execute and
deliver to the Administrative Agent, a Note or Notes (as applicable) to the
order of such Lender in amounts equal to the Revolving Credit Commitment and/or
the Term Loan Commitment of such Lender. Upon receipt thereby, the
Administrative Agent shall promptly deliver such Note or Notes to such Lender.
(f) Participations. Each Lender may, without notice to or the consent
of the Borrower or the Administrative Agent, and in accordance with Applicable
Law, sell participations to one or more banks or other entities (any such bank
or other entity, a "Participant") in all or a portion of its rights and/or
obligations under this Agreement (including, without limitation, all or a
portion of its Extensions of Credit and the Notes held by it); provided that:
(i) each such participation shall be in an amount not less
than $5,000,000 with respect to the Revolving Credit Facility and $1,000,000 (or
otherwise agreed by the Administrative Agent and the Borrower) with respect to
the Term Loan Facility;
(ii) such Lender's obligations under this Agreement
(including, without limitation, its Revolving Credit Commitment and/or its Term
Loan Commitment, as applicable) shall remain unchanged;
(iii) such Lender shall remain solely responsible to
the other parties hereto for the performance of such obligations;
88
(iv) such Lender shall remain the holder of the Notes
held by it for all purposes of this Agreement;
(v) the Borrower, the Administrative Agent and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement;
(vi) such Lender shall not permit such Participant the right
to approve any waivers, amendments or other modifications to this Agreement or
any other Loan Document other than waivers, amendments or modifications which
would reduce the principal of or the interest rate on any Loan or Reimbursement
Obligation, extend the term or increase the amount of the Revolving Credit
Commitment and/or the Term Loan Commitment of such Lender, reduce the amount of
any fees to which such Participant is entitled, extend any scheduled payment
date for principal of any Loan or, except as expressly contemplated hereby or
thereby, release substantially all of the Collateral; and
(vii) any such disposition shall not, without the consent of
the Borrower, require the Borrower to file a registration statement with the
Securities and Exchange Commission to apply to qualify the Loans or the Notes
under the blue sky law of any state.
The Borrower agrees that each Participant shall be entitled to the benefits of
Section 5.7, Section 5.8, Section 5.9, Section 5.10, Section 5.11 and Section
14.3 to the same extent as if it were a Lender and had acquired its interest by
assignment pursuant to paragraph (b) of this Section 14.10; provided that a
Participant shall not be entitled to receive any greater payment under Section
5.7, Section 5.8, Section 5.9, Section 5.10, and Section 5.11 than the
applicable Lender would have been entitled to receive with respect to the
participation sold to such Participant, unless the sale of the participation to
such Participant is made with the Borrower's prior written consent and such
Participant shall have delivered to the Administrative Agent all United States
Internal Revenue Service Forms required pursuant to Section 5.11(e).
(g) Disclosure of Information; Confidentiality. The Administrative
Agent and the Lenders shall maintain as confidential, and shall cause their
Affiliates to maintain as confidential, all non-public information with respect
to the Borrower obtained pursuant to the Loan Documents (or any Hedging
Agreement with a Lender or the Administrative Agent) in accordance with their
customary procedures for handling confidential information; provided, that the
Administrative Agent may disclose information relating to this Agreement to Gold
Sheets and other similar bank trade publications, such information to consist of
deal terms and other information customarily found in such publications and
provided further, that the Administrative Agent or any Lender may disclose any
such information to the extent such disclosure is (i) required by law or
requested or required pursuant to any legal process, (ii) requested by, or
required to be disclosed to, any rating agency, or regulatory or similar
authority (including, without limitation, the National Association of Insurance
Commissioners) or (iii) used in any suit, action or proceeding for the purpose
of defending itself, reducing its liability or protecting any of its claims,
rights, remedies or interests under or in connection with the Loan Documents (or
any Hedging Agreement with a Lender or the Administrative Agent). Any Lender
may, in connection with any assignment, proposed assignment, participation or
proposed participation pursuant to this Section 14.10, disclose to the
Purchasing Lender, proposed Purchasing Lender, Participant, proposed
Participant, or to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor any
89
information relating to the Borrower furnished to such Lender by or on behalf of
the Borrower; provided, that prior to any such disclosure, each such Purchasing
Lender, proposed Purchasing Lender, Participant or proposed Participant,
contractual counterparty or professional advisor shall agree to be bound by the
provisions of this Section 14.10(g).
(h) Certain Pledges or Assignments. Any Lender may at any time pledge
or assign a security interest in all or any portion of its rights under this
Agreement or any other Loan Document to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a
Federal Reserve Bank; provided that no such pledge or assignment of a security
interest shall release a Lender from any of its obligations hereunder or
substitute such pledgee or assignee for such Lender as a party hereto.
SECTION 14.11 Amendments, Waivers and Consents. Except as set forth
below or as specifically provided in any Loan Document (including, without
limitation, Section 2.8), any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the
Lenders, and any consent given by the Lenders, if, but only if, such amendment,
waiver or consent is in writing signed by the Required Lenders (or by the
Administrative Agent with the consent of the Required Lenders) and delivered to
the Administrative Agent and, in the case of an amendment, signed by the
Borrower; provided, that except as specifically set forth in Section 2.8, no
amendment, waiver or consent shall (a) increase the Revolving Credit Commitment
or Term Loan Commitment of any Lender, (b) reduce the Revolving Credit
Commitment Percentage, the rate of interest or fees payable on any Loan or
Reimbursement Obligation, (c) reduce or forgive the principal amount of any Loan
or Reimbursement Obligation, (d) extend the originally scheduled time or times
of payment or prepayment of the principal of any Loan or Reimbursement
Obligation or the time or times of payment of interest on any Loan or
Reimbursement Obligation (including, without limitation, the date of any
principal amortization payment set forth in Section 4.3 or the final maturity
date) or any fee or commission with respect thereto (including any waiver of a
payment default), (e) permit any subordination of the principal or interest on
any Loan or Reimbursement Obligation, (f) release the Borrower from the
Obligations (other than Hedging Obligations) hereunder, (g) permit any
assignment (other than as specifically permitted or contemplated in this
Agreement) of any of the Borrower's rights and obligations hereunder, (h)
release any Guarantor or material portion of the Collateral or release any
Security Document (other than asset sales permitted pursuant to Section 11.5 and
as otherwise specifically permitted or contemplated in this Agreement
(including, without limitation, Section 5.12(b)) or the applicable Security
Document) or (i) amend the provisions of this Section 14.11 or the definition of
Required Lenders, in each case, without the prior written consent of each Lender
or (j) extend the time of the obligation of the Lenders holding Revolving Credit
Commitments to make or issue or participate in Letters of Credit, in any case,
without the written consent of each Lender holding Revolving Credit Loans or a
Revolving Credit Commitment.
In addition, no amendment, waiver or consent to the provisions of
Section 4.4(b)(vii) with respect to the order of application of amounts prepaid,
Section 5.4 with respect to the pro rata treatment of payments, or Section 5.5
with respect to the order of application of proceeds shall be made without the
written consent of each Lender adversely affected thereby.
90
In addition, no amendment, waiver or consent to the provisions of (a)
Article XIII shall be made without the written consent of the Administrative
Agent and (b) Article III without the written consent of the Issuing Lender and
the Administrative Agent.
SECTION 14.12 Performance of Duties. The Borrower's obligations under
this Agreement and each of the other Loan Documents shall be performed by the
Borrower at its sole cost and expense.
SECTION 14.13 All Powers Coupled with Interest. All powers of attorney
and other authorizations granted to the Lenders, the Administrative Agent and
any Persons designated by the Administrative Agent or any Lender pursuant to any
provisions of this Agreement or any of the other Loan Documents shall be deemed
coupled with an interest and shall be irrevocable so long as any of the
Obligations remain unpaid or unsatisfied, any of the Commitments remain in
effect or the Credit Facility has not been terminated.
SECTION 14.14 Survival of Indemnities. Notwithstanding any termination
of this Agreement, the indemnities to which the Administrative Agent and the
Lenders are entitled under the provisions of this Article XIV and any other
provision of this Agreement and the other Loan Documents shall continue in full
force and effect and shall protect the Administrative Agent and the Lenders
against events arising after such termination as well as before.
SECTION 14.15 Titles and Captions. Titles and captions of Articles,
Sections and subsections in, and the table of contents of, this Agreement are
for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 14.16 Severability of Provisions. Any provision of this
Agreement or any other Loan Document which is prohibited or unenforceable in any
jurisdiction shall, as to such jurisdiction, be ineffective only to the extent
of such prohibition or unenforceability without invalidating the remainder of
such provision or the remaining provisions hereof or thereof or affecting the
validity or enforceability of such provision in any other jurisdiction.
SECTION 14.17 Counterparts. This Agreement may be executed in any
number of counterparts and by different parties hereto in separate counterparts,
each of which when so executed shall be deemed to be an original and shall be
binding upon all parties, their successors and assigns, and all of which taken
together shall constitute one and the same agreement.
SECTION 14.18 Term of Agreement. This Agreement shall remain in effect
from the Closing Date through and including the date upon which all Obligations
arising hereunder or under any other Loan Document shall have been indefeasibly
and irrevocably paid and satisfied in full and all Commitments have been
terminated. The Administrative Agent is hereby permitted to release all Liens on
the Collateral in favor of the Administrative Agent, for the ratable benefit of
itself and the Lenders, upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses
hereunder and the termination of the Lender's Commitments. No termination of
this Agreement shall affect the rights and obligations of the parties hereto
arising prior to such termination or in respect of any provision of this
Agreement which survives such termination.
91
SECTION 14.19 Advice of Counsel. Each of the parties represents to each
other party hereto that it has discussed this Agreement with its counsel.
SECTION 14.20 No Strict Construction. The parties hereto have
participated jointly in the negotiation and drafting of this Agreement. In the
event an ambiguity or question of intent or interpretation arises, this
Agreement shall be construed as if drafted jointly by the parties hereto and no
presumption or burden of proof shall arise favoring or disfavoring any party by
virtue of the authorship of any provisions of this Agreement.
SECTION 14.21 Inconsistencies with Other Documents; Independent
Effect of Covenants.
(a) In the event there is a conflict or inconsistency between this
Agreement and any other Loan Document, the terms of this Agreement shall
control; provided, that any provision of the Security Documents which imposes
additional burdens on the Borrower or its Subsidiaries or further restricts the
rights of the Borrower or its Subsidiaries or gives the Administrative Agent or
Lenders additional rights shall not be deemed to be in conflict or inconsistent
with this Agreement and shall be given full force and effect.
(b) The Borrower expressly acknowledges and agrees that each covenant
contained in Articles IX, X, or XI hereof shall be given independent effect.
Accordingly, the Borrower shall not engage in any transaction or other act
otherwise permitted under any covenant contained in Articles IX, X, or XI if,
before or after giving effect to such transaction or act, the Borrower shall or
would be in breach of any other covenant contained in Articles IX, X, or XI.
[Signature pages to follow]
92
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed under seal by their duly authorized officers, all as of the day and
year first written above.
[CORPORATE SEAL] ▇▇▇▇ IN THE BOX INC., as Borrower
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title:Vice President
and Treasurer
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative Agent and
Lender
By:L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
--------------------
Name: L. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
▇.▇.▇▇▇▇ NATIONAL ASSOCIATION,
as Syndication Agent and Lender
By: ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
COOPERATIEVE CENTRALE RAIFFEISEN
BOERENLEENBANK B.A. "RABOBANK
INTERNATIONAL", NEW YORK BRANCH,
as Document Agent and Lender
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇▇▇ ▇.▇▇▇▇▇
Title: Vice President
By:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Name:▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title:Managing Director
FLEET NATIONAL BANK, as
Syndication Agent
and Lender
By: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Director
SUNTRUST BANK, as Lender
By:▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Managing Director
UNION BANK OF CALIFORNIA,
N.A., as Lender
By:▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Senior Vice President
GUARANTY BANK, as Lender
By:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
-----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BNP PARIBAS, as Lender
By:▇▇▇▇▇▇ ▇.▇. ▇▇
----------------
Name: ▇▇▇▇▇▇ ▇.▇. ▇▇
Title: Director
By:▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Director
BANK OF THE WEST, as Lender
By:▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Vice President
BANK OF AMERICA, as Lender
By:CHITT SWAMIDASAN
----------------
Name: Chitt Swamidasan
Title: Principal
▇▇▇▇▇▇▇ ▇▇▇▇▇ BUSINESS FINANCIAL,
SERVICES INC. as Lender
By:▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Senior Counsel
