COMPOSITE CONFORMED COPY
THROUGH AUGUST 15, 1997
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REVOLVING CREDIT AND GUARANTY AGREEMENT
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AMONG
FLAGSTAR CORPORATION, A DEBTOR-IN-POSSESSION,
AS BORROWER,
FLAGSTAR COMPANIES, INC., A DEBTOR-IN-POSSESSION,
FLAGSTAR HOLDINGS, INC., A DEBTOR-IN-POSSESSION AND
THE SUBSIDIARIES OF THE BORROWER NAMED HEREIN,
AS GUARANTORS,
THE BANKS PARTY HERETO,
AND
THE CHASE MANHATTAN BANK,
AS AGENT
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DATED AS OF JULY 11, 1997
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CONFORMED TO REFLECT MODIFICATIONS SET FORTH IN THE AMENDMENT LETTER
AGREEMENT TO REVOLVING CREDIT AND GUARANTY AGREEMENT DATED AS OF JULY
16, 1997 AND THE FIRST AMENDMENT TO REVOLVING CREDIT AND GUARANTY
AGREEMENT DATED AS OF AUGUST 15, 1997
REVOLVING CREDIT AND GUARANTY AGREEMENT
TABLE OF CONTENTS
Page No.
SECTION 1. DEFINITIONS...........................................................................................3
SECTION 1.1. Defined Terms....................................................................................3
SECTION 1.2. Terms Generally.................................................................................18
SECTION 2. AMOUNT AND TERMS OF CREDIT...........................................................................19
SECTION 2.1. Commitment of the Banks.........................................................................19
SECTION 2.2. Letters of Credit...............................................................................19
SECTION 2.3. Issuance........................................................................................21
SECTION 2.4. Nature of Letter of Credit Obligations Absolute.................................................21
SECTION 2.5. Making of Loans.................................................................................22
SECTION 2.6. Notes; Repayment of Loans.......................................................................23
SECTION 2.7. Interest on Loans...............................................................................23
SECTION 2.8. Default Interest................................................................................24
SECTION 2.9. Optional Termination or Reduction of Commitment.................................................24
SECTION 2.10. Alternate Rate of Interest.....................................................................24
SECTION 2.11. Refinancing of Loans...........................................................................25
SECTION 2.12. Commitment Termination; Cash Collateral........................................................26
SECTION 2.13. Optional Prepayment of Loans; Reimbursement
of Banks.......................................................................................26
SECTION 2.14. Reserve Requirements; Change in Circumstances..................................................28
SECTION 2.15. Change in Legality.............................................................................30
SECTION 2.16. Pro Rata Treatment, etc........................................................................30
SECTION 2.17. Taxes..........................................................................................31
SECTION 2.18. Certain Fees...................................................................................33
SECTION 2.19. Commitment Fee.................................................................................33
SECTION 2.20. Letter of Credit Fees..........................................................................34
SECTION 2.21. Nature of Fees.................................................................................34
SECTION 2.22. Priority and Liens.............................................................................34
SECTION 2.23. Right of Set-Off...............................................................................35
SECTION 2.24. Security Interest in Letter of Credit Account..................................................35
SECTION 2.25. Payment of Obligations.........................................................................36
SECTION 2.26. No Discharge; Survival of Claims...............................................................36
SECTION 3. REPRESENTATIONS AND WARRANTIES.......................................................................36
SECTION 3.1. Organization and Authority......................................................................36
SECTION 3.2. Due Execution...................................................................................36
SECTION 3.3. Statements Made.................................................................................37
SECTION 3.4. Financial Statements............................................................................37
SECTION 3.5. Ownership.......................................................................................38
SECTION 3.6. Liens...........................................................................................38
SECTION 3.7. Compliance with Law.............................................................................38
SECTION 3.8. Insurance.......................................................................................39
SECTION 3.9. The Orders......................................................................................39
SECTION 3.10. Use of Proceeds................................................................................39
SECTION 3.11. Litigation.....................................................................................39
SECTION 4. CONDITIONS OF LENDING................................................................................40
SECTION 4.1. Conditions Precedent to Initial Loans and Initial
Letters of Credit...............................................................................40
SECTION 4.2. Conditions Precedent to Each Loan and Each
Letter of Credit...............................................................................44
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SECTION 5. AFFIRMATIVE COVENANTS................................................................................45
SECTION 5.1. Financial Statements, Reports, etc..............................................................45
SECTION 5.2. Corporate Existence.............................................................................48
SECTION 5.3. Insurance.......................................................................................48
SECTION 5.4. Obligations and Taxes...........................................................................49
SECTION 5.5. Notice of Event of Default, etc.................................................................49
SECTION 5.6. Access to Books and Records.....................................................................49
SECTION 5.7. Business Plan...................................................................................50
SECTION 5.8. Maintenance of Concentration Accounts............................................................50
SECTION 5.9. Subsidiary Guarantor Filings.....................................................................50
SECTION 6. NEGATIVE COVENANTS...................................................................................50
SECTION 6.1. Liens...........................................................................................50
SECTION 6.2. Merger, etc.....................................................................................51
SECTION 6.3. Indebtedness....................................................................................51
SECTION 6.4. Capital Expenditures............................................................................53
SECTION 6.5. EBITDA..........................................................................................53
SECTION 6.6. Guarantees and Other Liabilities................................................................53
SECTION 6.7. Chapter 11 Claims...............................................................................54
SECTION 6.8. Dividends; Capital Stock........................................................................54
SECTION 6.9. Transactions with Affiliates....................................................................54
SECTION 6.10. Investments, Loans and Advances................................................................54
SECTION 6.11. Disposition of Assets...........................................................................55
SECTION 6.12, Nature of Business.............................................................................56
SECTION 7. EVENTS OF DEFAULT....................................................................................56
SECTION 7.1. Events of Default...............................................................................56
SECTION 8. THE AGENT............................................................................................60
SECTION 8.1. Administration by Agent.........................................................................60
SECTION 8.2. Advances and Payments...........................................................................61
SECTION 8.3. Sharing of Setoffs..............................................................................61
SECTION 8.4. Agreement of Required Banks.....................................................................62
SECTION 8.5. Liability of Agent..............................................................................62
SECTION 8.6. Reimbursement and Indemnification...............................................................63
SECTION 8.7. Rights of Agent.................................................................................63
SECTION 8.8. Independent Banks...............................................................................63
SECTION 8.9. Notice of Transfer..............................................................................63
SECTION 8.10. Successor Agent................................................................................64
SECTION 9. GUARANTY.............................................................................................65
SECTION 9.1. Guaranty........................................................................................65
SECTION 9.2. No Impairment of Guaranty.......................................................................66
SECTION 9.3. Subrogation.....................................................................................67
SECTION 10. MISCELLANEOUS.......................................................................................67
SECTION 10.1. Notices........................................................................................67
SECTION 10.2. Survival of Agreement, Representations
and Warranties, etc............................................................................68
SECTION 10.3. Successors and Assigns.........................................................................68
SECTION 10.4. Confidentiality................................................................................71
SECTION 10.5. Expenses.......................................................................................72
SECTION 10.6. Indemnity......................................................................................72
SECTION 10.7. CHOICE OF LAW..................................................................................73
SECTION 10.8. No Waiver......................................................................................73
SECTION 10.9. Extension of Maturity..........................................................................73
SECTION 10.10. Amendments, etc...............................................................................73
SECTION 10.11. Severability..................................................................................75
SECTION 10.12. Headings......................................................................................75
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SECTION 10.13. Execution in Counterparts.....................................................................75
SECTION 10.14. Prior Agreements..............................................................................75
SECTION 10.15. Further Assurances............................................................................75
SECTION 10.16. WAIVER OF JURY TRIAL..........................................................................75
ANNEX A - Commitment Amounts
EXHIBIT A - Form of Note
EXHIBIT B-1 - Form of Interim Order
EXHIBIT B-2 - Form of Final Order
EXHIBIT C-1 - Form of Security and Pledge Agreement (Borrower, FCI and
Holdings)
EXHIBIT C-2 - Form of Security and Pledge Agreement (Subsidiary Guarantors)
EXHIBIT C-3 - Form of Trademark Security Agreement
EXHIBIT D - Form of Opinion of Counsel
EXHIBIT E - Form of Assignment and Acceptance
SCHEDULE 1.1 - Existing Agreements
SCHEDULE 3.4 - Indebtedness incurred since
December 31, 1996
SCHEDULE 3.5 - Subsidiaries
SCHEDULE 3.6 - Pre-Petition Liens
SCHEDULE 3.11 - Litigation
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REVOLVING CREDIT AND GUARANTY AGREEMENT
Dated as of July 11, 1997
REVOLVING CREDIT AND GUARANTY AGREEMENT, dated as of July 11, 1997
among FLAGSTAR CORPORATION, a Delaware corporation (the "Borrower") and a debtor
and debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy
Code, FLAGSTAR COMPANIES, INC., a Delaware corporation ("FCI") and a debtor and
debtor-in-possession in a case pending under Chapter 11 of the Bankruptcy Code,
FLAGSTAR HOLDINGS, INC. (a New York corporation and a debtor and
debtor-in-possession in a case pending under Chapter 11 of the bankruptcy Code
and a wholly-owned subsidiary of the borrower ("Holdings") (the cases of the
Borrower, FCI and Holdings, each a "Case" and collectively the "Cases"), TWS
FUNDING, INC., a Delaware corporation and a wholly-owned Subsidiary of the
Borrower ("TWS"), each of the other direct or indirect Subsidiaries of the
Borrower that is a signatory hereto (each, together with TWS, a "Subsidiary
Guarantor" and collectively with FCI and Holdings, the "Guarantors"), THE CHASE
MANHATTAN BANK, a New York banking corporation ("Chase"), each of the other
financial institutions from time to time party hereto (together with Chase, the
"Banks") and THE CHASE MANHATTAN BANK, as agent (in such capacity, the "Agent")
for the Banks.
INTRODUCTORY STATEMENT
On June 27, 1997, Holdings filed a voluntary petition with the
Bankruptcy Court initiating its Case and on July 11, 1997, the Borrower and FCI
filed voluntary petitions with the Bankruptcy Court initiating their Cases. The
Cases of the Borrower, FCI and Holdings have been consolidated for procedural
purposes. The Borrower, FCI and Holdings have continued in the possession of
their assets and in the management of their businesses pursuant to Sections 1107
and 1108 of the Bankruptcy Code.
The Borrower has applied to the Banks for a revolving credit and letter
of credit facility in an aggregate principal amount not to exceed $200,000,000
(subject to mandatory and optional reductions in accordance with Sections 2.9
and 2.12), all of the Borrower's obligations under which are to be guaranteed by
the Guarantors.
The proceeds of the Loans will be used to refinance and replace
extensions of credit under the Existing Agreements and to provide working
capital for the Borrower and the Guarantors.
To provide guarantees and security for the repayment of the Loans, the
reimbursement of any draft drawn under a Letter of Credit and the payment of the
other obligations of the Borrower and the Guarantors hereunder and under the
other Loan Documents, the Borrower and the Guarantors will provide to the Agent
and the Banks the following (each as more fully described herein):
(a) a guaranty from each of the Guarantors of the due
and punctual payment and performance of the obligations of the
Borrower hereunder and under the Notes;
(b) with respect to the obligations of the Borrower,
FCI and Holdings hereunder, an allowed administrative expense
claim in each of the Cases pursuant to Section 364(c)(1) of
the Bankruptcy Code having priority over all administrative
expenses of the kind specified in Sections 503(b) and 507(b)
of the Bankruptcy Code;
(c) with respect to the obligations of the Borrower,
FCI and Holdings hereunder, a perfected first priority Lien,
pursuant to Section 364(c)(2) of the Bankruptcy Code, upon all
unencumbered property of the Borrower, FCI and Holdings
(including, but not limited to, property that secures the
obligations of the Borrower under the Existing Agreements and
all cash in the Letter of Credit Account);
(d) with respect to the obligations of the Borrower,
FCI and Holdings hereunder, a perfected Lien, pursuant to
Section 364(c)(3) of the Bankruptcy Code, upon all property of
the Borrower, FCI and Holdings that is subject to valid and
perfected Liens in existence on the Filing Date, junior to
such valid and perfected Liens (other than property that is
subject to Liens granted pursuant to the Existing Agreements,
all of which Liens shall be released in a manner satisfactory
to the Agent at the time of the initial extension of credit
hereunder); and
(e) with respect to the obligations of the Subsidiary
Guarantors hereunder, a perfected first Lien on all of the
property of the Subsidiary Guarantors that secures their
obligations in connection with the Existing Agreements (and
all of the Liens on such property granted pursuant to the
Existing Agreements will be released in a manner satisfactory
to the Agent at the time of the initial extension of credit
hereunder).
All of the claims and the Liens granted in the Cases to the Agent and
the Banks shall (insofar as claims against and assets of the Borrower, FCI and
Holdings are concerned) be subject to the Carve-Out to the extent provided in
Section 2.22.
Accordingly, the parties hereto hereby agree as follows:
SECTION 1. DEFINITIONS.
SECTION 1.1. DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings
specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Loan bearing interest at a rate determined by
reference to the Alternate Base Rate in accordance with the provisions of
Section 2.
"Additional Credit" shall have the meaning given such term in Section
4.2(d) hereof.
"Adjusted LIBOR Rate" shall mean, with respect to any Eurodollar
Borrowing for any Interest Period, an interest rate per annum (rounded upwards,
if necessary, to the next 1/16 of 1%) equal to the quotient of (a) the LIBOR
Rate in effect for such Interest Period divided by (b) a percentage (expressed
as a decimal) equal to 100% minus Statutory Reserves. For purposes hereof, the
term "LIBOR Rate" shall mean the rate (rounded upwards, if necessary, to the
next 1/16 of 1%) at which dollar deposits approximately equal in principal
amount to such Eurodollar Borrowing and for a maturity comparable to such
Interest Period are offered to the principal London office of the Agent in
immediately available funds in the London interbank market at approximately
11:00 a.m., London time, two Business Days prior to the commencement of such
Interest Period.
"Affiliate" shall mean, as to any Person, any other Person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such Person. For purposes of this definition, a Person (a
"Controlled Person") shall be deemed to be "controlled by" another Person (a
"Controlling Person") if the Controlling Person possesses, directly or
indirectly, power to direct or cause the direction of the management and
policies of the Controlled Person whether by contract or otherwise.
"Agent" shall have the meaning set forth in the first paragraph of this
Agreement.
"Agreement" shall mean this Revolving Credit and Guaranty Agreement, as
the same may from time to time be further amended, modified or supplemented.
"Alternate Base Rate" shall mean, for any day, a rate per annum
(rounded upwards, if necessary, to the next 1/16 of 1%) equal to the greatest of
(a) the Prime Rate in effect on such day, (b) the Base CD Rate in effect on such
day plus 1% and (c) the Federal Funds Effective Rate in effect on such day plus
1/2 of 1%. For purposes hereof, "Prime Rate" shall mean the rate of interest per
annum publicly announced from time to time by the Agent as its prime rate
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in effect at its principal office in New York City; each change in the Prime
Rate shall be effective on the date such change is publicly announced. "Base CD
Rate" shall mean the sum of (a) the quotient of (i) the Three-Month Secondary CD
Rate divided by (ii) a percentage expressed as a decimal equal to 100% minus
Statutory Reserves and (b) the Assessment Rate. "Three-Month Secondary CD Rate"
shall mean, for any day, the secondary market rate for three-month certificates
of deposit reported as being in effect on such day (or, if such day shall not be
a Business Day, the next preceding Business Day) by the Board through the public
information telephone line of the Federal Reserve Bank of New York (which rate
will, under the current practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such day), or, if such
rate shall not be so reported on such day or such next preceding Business Day,
the average of the secondary market quotations for three-month certificates of
deposit of major money center banks in New York City received at approximately
10:00 a.m., New York City time, on such day (or, if such day shall not be a
Business Day, on the next preceding Business Day) by the Agent from three New
York City negotiable certificate of deposit dealers of recognized standing
selected by it. "Federal Funds Effective Rate" shall mean, for any day, the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers, as
published on the next succeeding Business Day by the Federal Reserve Bank of New
York, or, if such rate is not so published for any day which is a Business Day,
the average of the quotations for the day of such transactions received by the
Agent from three Federal funds brokers of recognized standing selected by it. If
for any reason the Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the Base CD
Rate or the Federal Funds Effective Rate or both for any reason, including the
inability or failure of the Agent to obtain sufficient quotations in accordance
with the terms hereof, the Alternate Base Rate shall be determined without
regard to clause (b) or (c), or both, of the first sentence of this definition,
as appropriate, until the circumstances giving rise to such inability no longer
exist. Any change in the Alternate Base Rate due to a change in the Prime Rate,
the Three-Month Secondary CD Rate or the Federal Funds Effective Rate shall be
effective on the effective date of such change in the Prime Rate, the
Three-Month Secondary CD Rate or the Federal Funds Effective Rate, respectively.
4
"Assessment Rate" shall mean for any date the annual rate (rounded
upwards, if necessary, to the next 1/100 of 1%) most recently estimated by the
Agent as the then current net annual assessment rate that will be employed in
determining amounts payable by the Agent to the Federal Deposit Insurance
Corporation (or any successor) for insurance by such Corporation (or any
successor) of time deposits made in dollars at the Agent's domestic offices.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Bank and an Eligible Assignee, and accepted by the Agent,
substantially in the form of Exhibit E.
"Bankruptcy Code" shall mean The Bankruptcy Reform Act of 1978, as
heretofore and hereafter amended, and codified as 11 U.S.C. Section 101 et seq.
"Bankruptcy Court" shall mean the United States Bankruptcy Court for
the District of South Carolina or any other court having jurisdiction over the
Cases from time to time.
"Bank Hedge Agreement" shall have the meaning set forth in Section 6.3.
"Banks" shall have the meaning set forth in the first paragraph of this
Agreement.
"Board" shall mean the Board of Governors of the Federal Reserve System
of the United States.
"Borrower" shall have the meaning set forth in the first paragraph of
this Agreement.
"Borrowing" shall mean the incurrence of Loans of a single Type made
from all the Banks on a single date and having, in the case of Eurodollar Loans,
a single Interest Period (with any ABR Loan made pursuant to Section 2.15 being
considered a part of the related Borrowing of Eurodollar Loans).
"Business Day" shall mean any day other than a Saturday, Sunday or
other day on which banks in the State of New York are required or permitted to
close (and, for a Letter of Credit, other than a day on which the Fronting Bank
issuing such Letter of Credit is closed); provided, however, that when used in
connection with a Eurodollar Loan, the term "Business Day" shall also exclude
any day on which banks are not open for dealings in dollar deposits on the
London interbank market.
"Capex Financing" shall mean, with respect to any expenditure (whether
paid in cash or accrued as a liability) that (in conformity with GAAP) is
required to be included in or reflected by the property, plant, equipment or
intangibles or similar fixed asset accounts reflected in the consolidated
balance sheet of the
5
Borrower and the Guarantors (any such expenditure, a "Capital Item"), the
incurrence by a Subsidiary Guarantor of any Indebtedness secured (whether such
security is limited to principal or otherwise) by a mortgage or other Lien,
including any Lien under a Capitalized Lease, on the asset that is the subject
of such Capital Item, to the extent that the Net Cash Proceeds of such
Indebtedness do not exceed the amount of such Capital Item.
"Capital Expenditures" shall mean, for any period, the aggregate of all
cash expenditures net of cash amounts received by the Borrower and the
Guarantors from other Persons during such period in reimbursement of Capital
Expenditures made by the Borrower and the Guarantors, excluding interest
capitalized during construction, by the Borrower and the Guarantors during such
period that, in conformity with GAAP, are required to be included in or
reflected by the property, plant, equipment or intangibles or similar fixed
asset accounts reflected in the consolidated balance sheet of the Borrower and
the Guarantors (including equipment which is purchased simultaneously with the
trade-in of existing equipment owned by the Borrower or any of the Guarantors to
the extent of the gross amount of such purchase price less the book value of the
equipment being traded in at such time), but excluding expenditures made in
connection with the replacement or restoration of assets, to the extent
reimbursed or financed from insurance proceeds paid on account of the loss of or
the damage to the assets being replaced or restored, or from awards of
compensation arising from the taking by condemnation or eminent domain of such
assets being replaced.
"Capitalized Lease" shall mean, as applied to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in accordance with GAAP.
"Carve-Out" shall have the meaning set forth in Section 2.22.
"Cases" shall mean the Chapter 11 Cases of the Borrower, FCI and
Holdings pending in the Bankruptcy Court.
"Chase" shall have the meaning set forth in the first paragraph of this
Agreement.
"Closing Date" shall mean the date on which this Agreement has been
executed and the conditions precedent to the making of the initial Loans set
forth in Section 4.1 have been satisfied or waived, which date shall occur
promptly upon the entry of the Interim Order, but no later than August 15, 1997.
"Code" shall mean the Internal Revenue Code of 1986, as amended.
"Collateral" shall mean the Collateral under the Security and Pledge
Agreements.
"Commitment" shall mean, with respect to each Bank, the commitment of
each Bank hereunder in the amount set forth opposite
6
its name on Annex A hereto or as may subsequently be set forth in the Register
from time to time, as the same may be reduced from time to time pursuant to
Sections 2.9 and 2.12.
"Commitment Fee" shall have the meaning set forth in Section 2.19.
"Commitment Letter" shall mean that certain Commitment Letter dated May
12, 1997 among the Agent, Chase Securities Inc., the Borrower and FCI.
"Commitment Percentage" shall mean at any time, with respect to each
Bank, the percentage obtained by dividing its Commitment at such time by the
Total Commitment at such time.
"Consummation Date" shall mean the date of the substantial consummation
(as defined in Section 1101 of the Bankruptcy Code and including the effective
date of the Reorganization Plan) of a Reorganization Plan of the Borrower and
FCI which is confirmed pursuant to an order of the Bankruptcy Court.
"Denny's Holdings" shall mean Denny's Holdings, Inc., a New York
corporation and a direct wholly-owned Subsidiary of the Borrower.
"Dollars" and "$" shall mean lawful money of the United States of
America.
"EBITDA" shall mean, with respect to the Borrower and the Guarantors
for any period, all as determined in accordance with GAAP the consolidated net
income (or net loss) for such period, plus (a) the sum of (i) depreciation
expense, (ii) amortization expense, (iii) other non-cash charges, (iv) provision
for LIFO adjustment for inventory valuation, (v) net total Federal, state and
local income tax expense, (vi) gross interest expense for such period less gross
interest income for such period, (vii) extraordinary losses, (viii) any
non-recurring charge or restructuring charge which in accordance with GAAP is
excluded from operating income, (ix) the cumulative effect of any change in
accounting principles and (x) "Chapter 11 expenses" (or "administrative costs
reflecting Chapter 11 expenses") as shown on the Borrower's consolidated
statement of income for such period less (b) extraordinary gains plus or minus
(c) the amount of cash received or expended in such period in respect of any
amount which, under clause (viii) above, was taken into account in determining
EBITDA for such or any prior period.
"Eligible Assignee" shall mean (i) a commercial bank having total
assets in excess of $1,000,000,000; (ii) a finance company, insurance company or
other financial institution or fund in each case acceptable to the Agent which
in the ordinary course of business extends credit of the type evidenced by the
Notes and has total assets in excess of $200,000,000 and whose becoming an
assignee would not constitute a prohibited transaction under Section 4975 of
ERISA;
7
and (iii) any other financial institution satisfactory to the Borrower and the
Agent.
"Environmental Lien" shall mean a Lien in favor of any Governmental
Authority for (i) any liability under federal or state environmental laws or
regulations, or (ii) damages arising from or costs incurred by such Governmental
Authority in response to a release or threatened release of a hazardous or toxic
waste, substance or constituent, or other substance into the environment.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings issued
thereunder.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated) which is a member of a group of which the Borrower is a member and
which is under common control within the meaning of Section 414(b) or (c) of the
Code and the regulations promulgated and rulings issued thereunder.
"Eurocurrency Liabilities" shall have the meaning assigned thereto in
Regulation D issued by the Board, as in effect from time to time.
"Eurodollar Borrowing" shall mean a Borrowing comprised of Eurodollar
Loans.
"Eurodollar Loan" shall mean any Loan bearing interest at a rate
determined by reference to the Adjusted LIBOR Rate in accordance with the
provisions of Section 2.
"Event of Default" shall have the meaning given such term in Section 7.
"Existing Agreements" shall mean that certain Second Amended and
Restated Credit Agreement dated as of April 10, 1996 among TWS, the Borrower,
the lenders named therein, Bankers Trust Company, Chase and Citibank, N.A. as
Co-Administrative Agents and Citibank, N.A. as Funding Agent, the notes
delivered pursuant thereto, and all of the agreements granting security
interests and liens to the institutions that are Existing Lenders in property
and assets of the Borrower and the Subsidiary Guarantors, including without
limitation, the security agreements listed on Schedule 1.1 hereto, each of which
documents was executed and delivered by the Borrower and (to the extent party
thereto) the Subsidiary Guarantors prior to the Filing Date, as each may have
been amended or modified from time to time.
"Existing Hedge Agreement" shall mean the Interest Rate Agreement dated
as of December 22, 1993 between Citibank, N.A. and the Borrower.
8
"Existing Lenders" shall mean, collectively, those certain lenders
under the Existing Agreements, together with any successors or assigns thereof.
"Fair Market Value" shall mean, with respect to any asset, the value of
the consideration obtainable in a sale of such asset in the open market at a
specific date assuming a sale by a willing seller to a willing purchaser dealing
at arm's length and arranged in an orderly manner over a reasonable period of
time having regard to the nature and characteristics of such asset, which value
shall, for any asset with a Fair Market Value in excess of $5,000,000, be either
(a) the value of such asset as determined in good faith by the Board of
Directors of the Borrower or (b) if such asset shall have been the subject of an
appraisal done reasonably contemporaneously by an independent third party
appraiser and the basic assumptions underlying such appraisal are reasonable,
the value of such asset as stated in such appraisal.
"FCI" shall have the meaning set forth in the Introduction.
"Fees" shall collectively mean the Commitment Fees, Letter of Credit
Fees and other fees referred to in Section 2.18.
"Filing Date" shall mean July 11, 1997, the date on which the Borrower
and FCI filed the voluntary petitions initiating their Cases.
"Final Order" shall have the meaning given such term in Section 4.2(d).
"Financial Officer" shall mean the Chief Financial Officer, Vice
President Finance or the Treasurer of the Borrower.
"First-Tier Subsidiaries" shall mean each of TWS, Denny's Holdings,
Spartan and each other Subsidiary Guarantor that is not a Subsidiary of another
Subsidiary of the Borrower, other than Holdings.
"Fronting Bank" shall mean Chase or such other Bank (which other Bank
shall be reasonably satisfactory to the Borrower) as may agree with Chase to act
in such capacity.
"GAAP" shall mean generally accepted accounting principles applied on a
basis consistent with those used in preparing the financial statements referred
to in Section 3.4.
"Governmental Authority" shall mean any Federal, state, municipal or
other governmental department, commission, board, bureau, agency or
instrumentality or any court, in each case whether of the United States or
foreign.
"Guarantors" shall have the meaning set forth in the first paragraph of
this Agreement.
9
"Holdings" shall have the meaning set forth in the first paragraph of
this Agreement.
"Indebtedness" shall mean, at any time and with respect to any Person,
(i) all indebtedness of such Person for borrowed money; (ii) all indebtedness of
such Person for the deferred purchase price of property or services (other than
property, including inventory, and services purchased, and expense accruals and
deferred compensation items arising, in the ordinary course of business); (iii)
all obligations of such Person evidenced by notes, bonds, debentures or other
similar instruments (other than performance, surety and appeal bonds arising in
the ordinary course of business); (iv) all indebtedness of such Person created
or arising under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and remedies
of the seller or lender under such agreement in the event of default are limited
to repossession or sale of such property); (v) all obligations of such Person
under leases which have been or should be, in accordance with GAAP, recorded as
capital leases, to the extent required to be so recorded; (vi) all
reimbursement, payment or similar obligations of such Person, contingent or
otherwise, under acceptance, letter of credit or similar facilities and all
obligations of such Person in respect of (x) currency swap agreements, currency
future or option contracts and other similar agreements designed to hedge
against fluctuations in foreign interest rates, and (y) interest rate swap, cap
or collar agreements and interest rate future or option contracts; (vii) all
Indebtedness referred to in clauses (i) through (vi) above guaranteed directly
or indirectly by such Person, or in effect guaranteed directly or indirectly by
such Person through an agreement (A) to pay or purchase such Indebtedness or to
advance or supply funds for the payment or purchase of such Indebtedness, (B) to
purchase, sell or lease (as lessee or lessor) property, or to purchase or sell
services, primarily for the purpose of enabling the debtor to make payment of
such Indebtedness or to assure the holder of such Indebtedness against loss in
respect of such Indebtedness; (C) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or services
irrespective of whether such property is received or such services are rendered)
or (D) otherwise to assure a creditor against loss in respect of such
Indebtedness; and (viii) all Indebtedness referred to in clauses (i) through
(vii) above secured by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien upon or in
property (including, without limitation, accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness.
"Insufficiency" shall mean, with respect to any Plan, the amount, if
any, of its unfunded benefit liabilities within the meaning of Section
4001(a)(18) of ERISA using reasonable actuarial assumptions as to interest rates
and mortality.
10
"Interim Order" shall have the meaning given such term in Section
4.1(c).
"Interest Expense" shall mean interest expense as determined in
accordance with GAAP.
"Interest Payment Date" shall mean (i) as to any Eurodollar Loan having
an Interest Period of 1 month, the last day of such Interest Period, (ii) as to
any Eurodollar Loan having an Interest Period of 3 months, each quarterly
anniversary of the commencement of such Interest Period and the last day of such
Interest Period and (iii) as to all ABR Loans, the last calendar day of each
March, June, September and December and the date on which any ABR Loans are
refinanced with Eurodollar Loans pursuant to Section 2.11.
"Interest Period" shall mean, as to any Borrowing of Eurodollar Loans,
the period commencing on the date of such Borrowing (including as a result of a
refinancing of ABR Loans) or on the last day of the preceding Interest Period
applicable to such Borrowing and ending on the numerically corresponding day (or
if there is no corresponding day, the last day) in the calendar month that is
one or three months thereafter, as the Borrower may elect in the related notice
delivered pursuant to Sections 2.5(b) or 2.11; provided, however, that (i) if
any Interest Period would end on a day which shall not be a Business Day, such
Interest Period shall be extended to the next succeeding Business Day unless
such next succeeding Business Day would fall in the next calendar month, in
which case such Interest Period shall end on the next preceding Business Day,
and (ii) no Interest Period shall end later than the Termination Date.
"Investments" shall have the meaning given such term in Section 6.10.
"Letter of Credit" shall mean any irrevocable letter of credit issued
pursuant to Section 2.2, which letter of credit shall be (i) a standby letter of
credit, (ii) issued for such purposes as are reasonably acceptable to the Agent,
(iii) denominated in Dollars and (iv) otherwise in such form as may be
reasonably approved from time to time by the Agent and the applicable Fronting
Bank.
"Letter of Credit Account" shall mean the account established by the
Borrower under the sole and exclusive control of the Agent maintained at the
office of the Agent at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 designated as
the "Flagstar Corporation Letter of Credit Account" that shall be used solely
for the purposes set forth in Sections 2.2(b) and 2.12.
"Letter of Credit Fees" shall mean the fees payable in respect of
Letters of Credit pursuant to Section 2.20.
"Letter of Credit Outstandings" shall mean, at any time, the sum of (i)
the aggregate undrawn stated amount of all Letters of Credit
11
then outstanding plus (ii) all amounts theretofore drawn under Letters of Credit
and not then reimbursed.
"Lien" shall mean any mortgage, pledge, security interest, encumbrance,
lien or charge of any kind whatsoever (including any conditional sale or other
title retention agreement or any lease in the nature thereof).
"Liquor License Affiliates" shall mean La Mirada Enterprises No. 1,
Inc., a Texas corporation, and each other Affiliate of the Borrower that may be
organized from time to time and the business of which will be limited to the
holding of a liquor license for any business maintained by the Borrower or a
Subsidiary Guarantor in any jurisdiction where the Borrower and the Subsidiary
Guarantors are prohibited from holding a liquor license or where the holding by
the Borrower or any such Subsidiary Guarantor of a liquor license would in the
best judgment of the Borrower be impracticable.
"Loan" shall have the meaning given such term in Section 2.1.
"Loan Documents" shall mean this Agreement, the Notes, the Letters of
Credit, the Security and Pledge Agreements, and any other instrument or
agreement executed and delivered in connection herewith.
"Maturity Date" shall mean July 10, 1998.
"Multiemployer Plan" shall mean a "multiemployer plan" as defined in
Section 4001(a)(3) of ERISA to which the Borrower or any ERISA Affiliate is
making or accruing an obligation to make contributions, or has within any of the
preceding five plan years made or accrued an obligation to make contributions.
"Multiple Employer Plan" shall mean a Single Employer Plan, which (i)
is maintained for employees of the Borrower or an ERISA Affiliate and at least
one Person other than the Borrower and its ERISA Affiliates or (ii) was so
maintained and in respect of which the Borrower or an ERISA Affiliate could have
liability under Section 4064 or 4069 of ERISA in the event such Plan has been or
were to be terminated.
"Net Cash Proceeds" shall mean, with respect to any sale, lease,
transfer or other disposition of any asset or the sale or issuance of any
Indebtedness by any Person, the aggregate amount of cash received from time to
time by or on behalf of such Person in connection with such transaction after
deducting therefrom only (a) reasonable and customary brokerage commissions,
underwriting fees and discounts, legal fees, finder's fees and other similar
fees and commissions, (b) the amount of taxes and other governmental fees and
charges, if any, payable in connection with or as a result of such transaction,
(c) the amount of any Indebtedness secured by a Lien on such asset that, by the
terms of such transaction, is
12
required to be repaid upon such disposition, in each case to the extent, but
only to the extent, that the amounts so deducted are, at the time of receipt of
such cash, properly attributable to such transaction or to the asset that is the
subject thereof and are actually paid by such Person to a Person that is not an
Affiliate and (d) in the case of asset dispositions only, an amount of such
proceeds equal to the amount of liabilities associated with such asset
(including, without limitation, accrued tax liabilities) incurred or retained by
the Person disposing of such asset as part of such transaction to the extent,
and for the period, such liabilities are reserved against in accordance with
GAAP or actually paid by such Person to a Person that is not an Affiliate;
provided that such proceeds shall be deemed received by such Person as and when
such reserves are no longer maintained and such liabilities are not actually so
paid by such Person.
"Notes" shall mean the promissory notes of the Borrower, substantially
in the form of Exhibit A hereto, each payable to the order of a Bank, evidencing
Loans.
"Obligations" shall mean (a) the due and punctual payment of principal
of and interest on the Loans and the Notes and the reimbursement of all amounts
drawn under Letters of Credit, and (b) the due and punctual payment of the Fees
and all other present and future, fixed or contingent, monetary obligations of
the Borrower and the Guarantors to the Banks and the Agent under the Loan
Documents and in respect of Indebtedness permitted by Sections 6.3(vi) and
6.3(vii).
"Orders" shall mean the Interim Order and the Final Order of the
Bankruptcy Court referred to in Sections 4.1(c) and 4.2(d).
"Other Taxes" shall have the meaning given such term in Section 2.17.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor agency or entity performing substantially the same functions.
"Pension Plan" shall mean a defined benefit pension or retirement plan
which meets and is subject to the requirements of Section 401(a) of the Code.
"Permitted Investments" shall mean:
(a) direct obligations of, or obligations the principal of and
interest on which are unconditionally guaranteed by, the United States of
America (or by any agency thereof to the extent such obligations are backed by
the full faith and credit of the United States of America), in each case
maturing within twelve months from the date of acquisition thereof;
13
(b) without limiting the provisions of paragraph (d) below,
investments in commercial paper maturing within six months from the date of
acquisition thereof and having, at such date of acquisition, a rating of at
least "A" or the equivalent thereof from Standard & Poor's Corporation or of at
least "A2" or the equivalent thereof from Xxxxx'x Investors Service, Inc.;
(c) investments in certificates of deposit, banker's
acceptances and time deposits (including Eurodollar time deposits) maturing
within six months from the date of acquisition thereof issued or guaranteed by
or placed with (i) any domestic office of the Agent or the bank with whom the
Borrower and the Guarantors maintain their cash management system, provided,
that if such bank is not a Bank hereunder, such bank shall have entered into an
agreement with the Agent pursuant to which such bank shall have waived all
rights of setoff and confirmed that such bank does not have, nor shall it claim,
a security interest therein or (ii) any domestic office of any other commercial
bank of recognized standing organized under the laws of the United States of
America or any State thereof that has a combined capital and surplus and
undivided profits of not less than $250,000,000 and is the principal banking
Subsidiary of a bank holding company having a long-term unsecured debt rating of
at least "A" or the equivalent thereof from Standard & Poor's Corporation or at
least "A2" or the equivalent thereof from Xxxxx'x Investors Service, Inc.;
(d) investments in commercial paper maturing within six months
from the date of acquisition thereof and issued by (i) the holding company of
the Agent or (ii) the holding company of any other commercial bank of recognized
standing organized under the laws of the United States of America or any State
thereof that has (A) a combined capital and surplus in excess of $250,000,000
and (B) commercial paper rated at least "A" or the equivalent thereof from
Standard & Poor's Corporation or of at least "A2" or the equivalent thereof from
Xxxxx'x Investors Service, Inc.;
(e) investments in repurchase obligations with a term of not
more than seven days for underlying securities of the types described in clause
(a) above entered into with any office of a bank or trust company meeting the
qualifications specified in clause (c) above; and
(f) investments in money market funds substantially all the
assets of which are comprised of securities of the types described in clauses
(a) through (e) above.
"Permitted Liens" shall mean (i) Liens imposed by law (other than
Environmental Liens and any Lien imposed under ERISA) for taxes, assessments or
charges of any Governmental Authority for claims not yet due or which are being
contested in good faith by appropriate proceedings and with respect to which
adequate reserves or other appropriate provisions are being maintained in
accordance
14
with GAAP; (ii) statutory and other Liens of landlords, Liens of tenants arising
from occupancy rights and statutory Liens of carriers, warehousemen, mechanics,
materialmen and other Liens (other than Environmental Liens and any Lien imposed
under ERISA) imposed by law created in the ordinary course of business for
amounts not yet due or which are being contested in good faith by appropriate
proceedings and with respect to which adequate reserves or other appropriate
provisions are being maintained in accordance with GAAP; (iii) Liens (other than
any Lien imposed under ERISA) incurred or deposits made in the ordinary course
of business (including, without limitation, surety bonds and appeal bonds) in
connection with workers' compensation, unemployment insurance and other types of
social security benefits or to secure the performance of tenders, bids, leases,
contracts (other than for the repayment of Indebtedness), statutory obligations
and other similar obligations or arising as a result of progress payments under
government contracts; (iv) easements (including, without limitation, reciprocal
easement agreements and utility agreements), rights-of-way, covenants, consents,
reservations, encroachments, variations and zoning and other restrictions,
charges or encumbrances (whether or not recorded), which do not interfere
materially with the ordinary conduct of the business of the Borrower or any
Guarantor, as the case may be, and which do not materially detract from the
value of the property to which they attach or materially impair the use thereof
to the Borrower or any Guarantor, as the case may be; (v) purchase money Liens
upon or in any property acquired or held in the ordinary course of business to
secure the purchase price of such property or to secure Indebtedness permitted
by Section 6.3(iii) solely for the purpose of financing the acquisition of such
property and Capitalized Leases permitted by Section 6.3(iv) (including, without
limitation, Liens securing Capex Financings), provided that any such Liens shall
be placed on such property within 180 days following the acquisition thereof;
(vi) extensions, renewals or replacements of any Lien referred to in paragraphs
(i) through (v) above, provided that the principal amount of the obligation
secured thereby is not increased and that any such extension, renewal or
replacement is limited to the property originally encumbered thereby; and (vii)
Liens on cash collateral held by Citibank, N.A. or The Bank of Nova Scotia (the
"Existing Issuers") resulting from draws by the Existing Issuers under Letters
of Credit issued hereunder as contemplated by Paragraph 2 of that certain Letter
of Credit Agreement dated as of July 16, 1997 among TWS, the Borrower and the
Existing Issuers, a copy of which has been delivered to the Agent.
"Person" shall mean any natural person, corporation, division of a
corporation, partnership, trust, joint venture, association, company, estate,
unincorporated organization or government or any agency or political subdivision
thereof.
"Plan" shall mean a Single Employer Plan or a Multiemployer Plan.
"Prepayment Date" shall mean thirty (30) days after the entry of the
Interim Order by the Bankruptcy Court if the Final Order has not been entered by
the Bankruptcy Court prior to the expiration of such thirty (30) day period.
15
"Pre-Petition Payment" shall mean a payment (by way of adequate
protection or otherwise) of principal or interest or otherwise on account of any
pre-petition Indebtedness (other than Indebtedness described in clauses (ii) and
(v) of the definition of such term herein).
"Proposed Plan" shall mean the Debtors' Joint Plan of Reorganization
described in the prospectus dated June 5, 1997 contained in the Registration
Statement on Form S-4 filed by FCI with the Securities and Exchange Commission
on March 24, 1997 as modified by Amendment No. 1 filed on May 8, 1997, Amendment
No. 2 filed on May 21, 1997 and Amendment No. 3 filed on June 3, 1997.
"Register" shall have the meaning set forth in Section 10.3(d).
"Reorganization Plan" shall mean a plan of reorganization in either of
the Cases.
"Required Banks" shall mean, at any time, Banks (including Chase)
holding Loans representing in excess of 50% of the aggregate principal amount of
such Loans outstanding or, if no such Loans are outstanding, Banks having
Commitments representing in excess of 50% of the Total Commitment.
"Security and Pledge Agreements" shall have the meaning set forth in
Section 4.1(d).
"Significant Subsidiary Group" shall mean each of (i) Denny's Holdings
and its Subsidiaries, taken as a whole, (ii) Spartan and its Subsidiaries, taken
as a whole, and (iii) each other First Tier Subsidiary and its Subsidiaries,
taken as a whole, that at any time has (x) assets with a value of not less than
15% of the total value of the assets of the Borrower and the Subsidiary
Guarantors taken as a whole or (y) consolidated EBITDA of not less than 15% of
the consolidated EBITDA of the Borrower and the Subsidiary Guarantors taken as a
whole for the most recent four fiscal quarters.
"Single Employer Plan" shall mean a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (i) is maintained for employees of the
Borrower or an ERISA Affiliate or (ii) was so maintained and in respect of which
the Borrower could have liability under Section 4069 of ERISA in the event such
Plan has been or were to be terminated.
"Spartan" shall mean Spartan Holdings, Inc., a New York corporation and
a direct wholly-owned Subsidiary of the Borrower.
"Statutory Reserves" shall mean on any date the percentage (expressed
as a decimal) established by the Board and any other banking authority which is
(i) for purposes of the definition of Base CD Rate, the then stated maximum rate
of all reserves (including, but not limited to, any emergency, supplemental or
other marginal reserve requirement) for a member bank of the Federal Reserve
System in New
16
York City, for new three month negotiable nonpersonal time deposits in dollars
of $100,000 or more or (ii) for purposes of the definition of Adjusted LIBOR
Rate, the then stated maximum rate for all reserves (including but not limited
to any emergency, supplemental or other marginal reserve requirements)
applicable to any member bank of the Federal Reserve System in respect of
Eurocurrency Liabilities (or any successor category of liabilities under
Regulation D issued by the Board, as in effect from time to time). Such reserve
percentages shall include, without limitation, those imposed pursuant to said
Regulation. The Statutory Reserves shall be adjusted automatically on and as of
the effective date of any change in such percentage.
"Subsidiary" shall mean, with respect to any Person (herein referred to
as the "parent"), any corporation, association or other business entity (whether
now existing or hereafter organized) of which at least a majority of the
securities or other ownership interests having ordinary voting power for the
election of directors is, at the time as of which any determination is being
made, owned or controlled by the parent or one or more subsidiaries of the
parent or by the parent and one or more subsidiaries of the parent.
"Subsidiary Guarantors" shall have the meaning set forth in the first
paragraph of this Agreement.
"Super-majority Banks" shall have the meaning given such term in
Section 10.10(b).
"Superpriority Claim" shall mean a claim against the Borrower, FCI or
Holdings in either of the Cases which is an administrative expense claim having
priority over any or all administrative expenses of the kind specified in
Sections 503(b) or 507(b) of the Bankruptcy Code.
"Taxes" shall have the meaning given such term in Section 2.17.
"Termination Date" shall mean the earliest to occur of (i) the
Prepayment Date, (ii) the Maturity Date, (iii) the Consummation Date and (iv)
the acceleration of the Loans and the termination of the Total Commitment in
accordance with the terms hereof.
"Termination Event" shall mean (i) a "reportable event", as such term
is described in Section 4043 of ERISA and the regulations issued thereunder
(other than a "reportable event" not subject to the provision for 30-day notice
to the PBGC under Section 4043 of ERISA or such regulations) or an event
described in Section 4068 of ERISA excluding events described in Section
4043(c)(9) of ERISA or 29 CFR ss.ss.2615.21 or 2615.23, or (ii) the withdrawal
of the Borrower or any ERISA Affiliate from a Multiple Employer Plan during a
plan year in which it was a "substantial employer", as such term is defined in
Section 4001(c) of ERISA, or the incurrence of liability by the Borrower or any
ERISA Affiliate under Section 4064 of ERISA upon the termination of a Multiple
Employer Plan, or (iii) providing notice of intent to terminate a Plan pursuant
to Section 4041(c) of ERISA or
17
the treatment of a Plan amendment as a termination under Section 4041 of ERISA,
or (iv) the institution of proceedings to terminate a Plan by the PBGC under
Section 4042 of ERISA, or (v) any other event or condition (other than the
commencement of the Cases and the failure to have made any contribution accrued
as of the Filing Date but not paid) which would reasonably be expected to
constitute grounds under Section 4042 of ERISA for the termination of, or the
appointment of a trustee to administer, any Plan, or the imposition of any
liability under Title IV of ERISA (other than for the payment of premiums to the
PBGC).
"Total Commitment" shall mean, at any time, the sum of the Commitments
at such time.
"Transferee" shall have the meaning given such term in Section 2.17.
"TWS" shall have the meaning set forth in the first paragraph of this
Agreement.
"Type" when used in respect of any Loan or Borrowing shall refer to the
rate of interest by reference to which interest on such Loan or on the Loans
comprising such Borrowing is determined. For purposes hereof, "Rate" shall mean
the Adjusted LIBOR Rate and the Alternate Base Rate.
"Unrestricted Subsidiary" shall mean FRD Acquisition Co., a
wholly-owned Subsidiary of the Borrower.
"Unused Total Commitment" shall mean, at any time, (i) the Total
Commitment less (ii) the sum of (x) the aggregate outstanding principal amount
of all Loans and (y) the aggregate Letter of Credit Outstandings.
"Withdrawal Liability" shall have the meaning given such term under
Part I of Subtitle E of Title IV of ERISA.
SECTION 1.2. TERMS GENERALLY. The definitions in Section 1.1 shall
apply equally to both the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. All references herein to Sections,
Exhibits and Schedules shall be deemed references to Sections of, and Exhibits
and Schedules to, this Agreement unless the context shall otherwise require.
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, however, that for purposes of determining compliance
with any covenant set forth in Section 6, such terms shall be construed in
accordance with GAAP as in effect on the date of this Agreement applied on a
basis consistent with the application used in the Borrower's audited financial
statements referred to in Section 3.4.
18
SECTION 2. AMOUNT AND TERMS OF CREDIT.
SECTION 2.1. COMMITMENT OF THE BANKS.
(a) Each Bank severally and not jointly with the other Banks agrees,
upon the terms and subject to the conditions herein set forth to make revolving
credit loans (each a "Loan" and collectively, the "Loans") to the Borrower at
any time and from time to time during the period commencing on the date hereof
and ending on the Termination Date (or the earlier date, if any, of termination
of the Total Commitment) in an aggregate principal amount not to exceed, when
added to such Bank's Commitment Percentage of the then aggregate Letter of
Credit Outstandings (in excess of the amount of cash then held in the Letter of
Credit Account pursuant to Section 2.2(b)), the Commitment of such Bank, which
Loans may be repaid and reborrowed in accordance with the provisions of this
Agreement. At no time shall the sum of the then outstanding aggregate principal
amount of the Loans plus the then aggregate Letter of Credit Outstandings exceed
the Total Commitment of $200,000,000, as the same may be reduced from time to
time pursuant to Sections 2.9 or 2.12, as the case may be.
(b) Each Borrowing shall be made by the Banks pro rata in accordance
with their respective Commitments; provided, however, that the failure of any
Bank to make any Loan shall not in itself relieve the other Banks of their
obligations to lend.
SECTION 2.2. LETTERS OF CREDIT
(a) Upon the terms and subject to the conditions herein set forth, the
Borrower may request a Fronting Bank, at any time and from time to time after
the date hereof and prior to the Termination Date, to issue, and subject to the
terms and conditions contained herein, such Fronting Bank shall issue, for the
account of the Borrower one or more Letters of Credit, provided that no Letter
of Credit shall be issued if after giving effect to such issuance (i) the
aggregate Letter of Credit Outstandings shall exceed $120,000,000 or (ii) the
aggregate Letter of Credit Outstandings, when added to the aggregate outstanding
principal amount of the Loans, would exceed the Total Commitment and, provided
further that no Letter of Credit shall be issued if the Fronting Bank shall have
received notice from the Agent or the Required Banks that the conditions to such
issuance have not been met.
(b) No Letter of Credit shall expire later than the earlier of (x)
twelve months from the date of issuance of such Letter of Credit and (y) 60 days
after the Maturity Date, provided that if any Letter of Credit shall be
outstanding on the Termination Date, the Borrower shall, at or prior to the
Termination Date, except as the Agent may otherwise agree in writing, (i) cause
all Letters of Credit which expire after the Termination Date to be returned to
the Fronting Bank undrawn and marked "cancelled" or (ii) if the Borrower is
unable to
19
do so in whole or in part, either (x) provide a "back-to-back" letter of credit
to one or more Fronting Banks in a form reasonably satisfactory to such Fronting
Bank and the Agent, issued by a bank satisfactory to such Fronting Bank and the
Agent, in an amount equal to 105% of the then undrawn stated amount of all
outstanding Letters of Credit issued by such Fronting Banks and/or (y) deposit
cash in the Letter of Credit Account in an amount equal to 105% of the then
undrawn stated amount of all outstanding Letters of Credit as collateral
security for the Borrower's reimbursement obligations in connection therewith,
such cash to be remitted to the Borrower upon the expiration, cancellation or
other termination or satisfaction of such reimbursement obligations.
(c) The Borrower shall pay to each Fronting Bank, in addition to such
other fees and charges as are specifically provided for in Section 2.20 hereof,
such fees and charges in connection with the issuance and processing of the
Letters of Credit issued by such Fronting Bank as are customarily imposed by
such Fronting Bank from time to time in connection with letter of credit
transactions.
(d) Drafts drawn under each Letter of Credit shall be reimbursed by the
Borrower in Dollars not later than the first Business Day following the date of
draw and shall bear interest from the date of draw until the first Business Day
following the date of draw at a rate per annum equal to the Alternate Base Rate
plus 1-1/2% and thereafter until reimbursed in full at a rate per annum equal to
the Alternate Base Rate plus 3-1/2% (computed on the basis of the actual number
of days elapsed over any year of 360 days). The Borrower shall effect such
reimbursement (x) if such draw occurs prior to the Termination Date (or the
earlier date of termination of the Total Commitment), in cash or through a
Borrowing without the satisfaction of the conditions precedent set forth in
Section 4.2 or (y) if such draw occurs on or after the Termination Date (or the
earlier date of termination of the Total Commitment), in cash. Each Bank agrees
to make the Loans described in clause (x) of the preceding sentence
notwithstanding a failure to satisfy the applicable lending conditions thereto
or the provisions of Section 2.1 or the occurrence of the Termination Date.
(e) Immediately upon the issuance of any Letter of Credit by any
Fronting Bank, such Fronting Bank shall be deemed to have sold to each Bank
other than such Fronting Bank and each such other Bank shall be deemed
unconditionally and irrevocably to have purchased from such Fronting Bank,
without recourse or warranty, an undivided interest and participation, to the
extent of such Bank's Commitment Percentage, in such Letter of Credit, each
drawing thereunder and the obligations of the Borrower and the Guarantors under
this Agreement with respect thereto. Upon any change in the Commitments pursuant
to Section 10.3, it is hereby agreed that with respect to all Letter of Credit
Outstandings, there shall be an automatic adjustment to the participations
hereby created to reflect the new Commitment Percentages of the assigning and
assignee Banks. Any action taken or
20
omitted by a Fronting Bank under or in connection with a Letter of Credit, if
taken or omitted in the absence of gross negligence or willful misconduct, shall
not create for such Fronting Bank any resulting liability to any other Bank.
(f) In the event that a Fronting Bank makes any payment under any
Letter of Credit and the Borrower shall not have reimbursed such amount in full
to such Fronting Bank pursuant to this Section, the Fronting Bank shall promptly
notify the Agent, which shall promptly notify each Bank of such failure, and
each Bank shall promptly and unconditionally pay to the Agent for the account of
the Fronting Bank the amount of such Bank's Commitment Percentage of such
unreimbursed payment in Dollars and in same day funds. If the Fronting Bank so
notifies the Agent, and the Agent so notifies the Banks prior to 11:00 a.m. (New
York City time) on any Business Day, such Banks shall make available to the
Fronting Bank such Bank's Commitment Percentage of the amount of such payment on
such Business Day in same day funds. If and to the extent such Bank shall not
have so made its Commitment Percentage of the amount of such payment available
to the Fronting Bank, such Bank agrees to pay to such Fronting Bank, forthwith
on demand such amount, together with interest thereon, for each day from such
date until the date such amount is paid to the Agent for the account of such
Fronting Bank at the Federal Funds Effective Rate. The failure of any Bank to
make available to the Fronting Bank its Commitment Percentage of any payment
under any Letter of Credit shall not relieve any other Bank of its obligation
hereunder to make available to the Fronting Bank its Commitment Percentage of
any payment under any Letter of Credit on the date required, as specified above,
but no Bank shall be responsible for the failure of any other Bank to make
available to such Fronting Bank such other Bank's Commitment Percentage of any
such payment. Whenever a Fronting Bank receives a payment of a reimbursement
obligation as to which it has received any payments from the Banks pursuant to
this paragraph, such Fronting Bank shall pay to each Bank which has paid its
Commitment Percentage thereof, in Dollars and in same day funds, an amount equal
to such Bank's Commitment Percentage thereof.
SECTION 2.3. ISSUANCE. Whenever the Borrower desires a Fronting Bank to
issue a Letter of Credit, it shall give to such Fronting Bank and the Agent at
least two Business Days' prior written (including telegraphic, telex, facsimile
or cable communication) notice (or such shorter period as may be agreed upon by
the Agent, the Borrower and the Fronting Bank) specifying the date on which the
proposed Letter of Credit is to be issued (which shall be a Business Day), the
stated amount of the Letter of Credit so requested, the expiration date of such
Letter of Credit and the name and address of the beneficiary thereof.
SECTION 2.4. NATURE OF LETTER OF CREDIT OBLIGATIONS ABSOLUTE. The
obligations of the Borrower to reimburse the Banks for drawings made under any
Letter of Credit shall be unconditional and irrevocable and shall be paid
strictly in accordance with the terms
21
of this Agreement under all circumstances, including, without limitation (it
being understood that any such payment by the Borrower shall be without
prejudice to, and shall not constitute a waiver of, any rights the Borrower
might have or might acquire as a result of the payment by the Fronting Bank of
any draft or the reimbursement by the Borrower thereof): (i) any lack of
validity or enforceability of any Letter of Credit; (ii) the existence of any
claim, setoff, defense or other right which the Borrower or any Guarantor may
have at any time against a beneficiary of any Letter of Credit or against any of
the Banks, whether in connection with this Agreement, the transactions
contemplated herein or any unrelated transaction; (iii) any draft, demand,
certificate or other document presented under any Letter of Credit proving to be
forged, fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect; (iv) payment by a Fronting
Bank of any Letter of Credit against presentation of a demand, draft or
certificate or other document which does not comply with the terms of such
Letter of Credit; (v) any other circumstance or happening whatsoever, which is
similar to any of the foregoing; or (vi) the fact that any Event of Default
shall have occurred and be continuing.
SECTION 2.5. MAKING OF LOANS.
(a) Except as contemplated by Section 2.10, Loans shall be
either ABR Loans or Eurodollar Loans as the Borrower may request subject to and
in accordance with this Section, provided that all Loans made pursuant to the
same Borrowing shall, unless otherwise specifically provided herein, be Loans of
the same Type. Each Bank may fulfill its Commitment with respect to any
Eurodollar Loan or ABR Loan by causing any lending office of such Bank to make
such Loan; provided that any such use of a lending office shall not affect the
obligation of the Borrower to repay such Loan in accordance with the terms of
the applicable Note. Each Bank shall, subject to its overall policy
considerations, use reasonable efforts (but shall not be obligated) to select a
lending office which will not result in the payment of increased costs by the
Borrower pursuant to Section 2.14. Subject to the other provisions of this
Section and the provisions of Section 2.11, Borrowings of Loans of more than one
Type may be incurred at the same time, provided that no more than five (5)
Borrowings of Eurodollar Loans may be outstanding at any time.
(b) The Borrower shall give the Agent prior notice of each
Borrowing hereunder of at least three Business Days for Eurodollar Loans and one
Business Day for ABR Loans; such notice shall be irrevocable and shall specify
the amount of the proposed Borrowing (which shall not be less than $5,000,000 in
the case of Eurodollar Loans and $1,000,000 in the case of ABR Loans) and the
date thereof (which shall be a Business Day) and shall contain disbursement
instructions. Such notice, to be effective, must be received by the Agent not
later than 12:00 noon, New York City time, on the third Business Day in the case
of Eurodollar Loans and the first Business Day in the case of ABR Loans,
preceding the date on
22
which such Borrowing is to be made except as provided in the last sentence of
this Section 2.5(b). Such notice shall specify whether the Borrowing then being
requested is to be a Borrowing of ABR Loans or Eurodollar Loans. If no election
is made as to the Type of Loan, such notice shall be deemed a request for
Borrowing of ABR Loans. The Agent shall promptly notify each Bank of its
proportionate share of such Borrowing, the date of such Borrowing, the Type of
Borrowing or Loans being requested and the Interest Period or Interest Periods
applicable thereto, as appropriate. On the borrowing date specified in such
notice, each Bank shall make its share of the Borrowing available at the office
of the Agent at 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, no later than 12:00
noon, New York City time, in immediately available funds. Upon receipt of the
funds made available by the Banks to fund any borrowing hereunder, the Agent
shall disburse such funds in the manner specified in the notice of borrowing
delivered by the Borrower and shall use reasonable efforts to make the funds so
received from the Banks available to the Borrower no later than 2:00 p.m. New
York City time (other than as provided in the following sentence). With respect
to ABR Loans of $15,000,000 or less, the Banks shall make such Borrowings
available to the Borrower by 4:00 p.m., New York City time, on the same Business
Day that the Borrower gives notice to the Agent of such Borrowing by 12:00 noon,
New York City time.
SECTION 2.6. NOTES; REPAYMENT OF LOANS. The Loans made by each Bank
shall be evidenced by a Note, duly executed on behalf of the Borrower, dated the
Closing Date or the date of the effectiveness of the applicable Assignment and
Acceptance, as the case may be, in substantially the form attached hereto as
Exhibit A, payable to the order of such Bank in an aggregate principal amount
equal to such Bank's Commitment. The outstanding principal balance of all of the
Loans, as evidenced by such Notes, shall be payable on the Termination Date.
Each Note shall bear interest from the date thereof on the outstanding principal
balance thereof as set forth in Section 2.7. Each Bank shall, and is hereby
authorized by the Borrower to, endorse on the schedule attached to each Note
delivered to such Bank (or on a continuation of such schedule attached to such
Note and made a part thereof), or otherwise to record in such Bank's internal
records, an appropriate notation evidencing the date and amount of each Loan
from such Bank, each payment and prepayment of principal of any such Loan, each
payment of interest on any such Loan and the other information provided for on
such schedule; provided, however, that the failure of any Bank to make such a
notation or any error therein shall not affect the obligation of the Borrower to
repay the Loans made by such Bank in accordance with the terms of this Agreement
and the applicable Notes.
SECTION 2.7. INTEREST ON LOANS.
(a) Subject to the provisions of Section 2.8, each ABR Loan
shall bear interest (computed on the basis of the actual number
23
of days elapsed over a year of 360 days) at a rate per annum equal to the
Alternate Base Rate plus 1-1/2%.
(b) Subject to the provisions of Section 2.8, each Eurodollar
Loan shall bear interest (computed on the basis of the actual number of days
elapsed over a year of 360 days) at a rate per annum equal, during each Interest
Period applicable thereto, to the Adjusted LIBOR Rate for such Interest Period
in effect for such Borrowing plus 2-1/2%.
(c) Accrued interest on all Loans shall be payable in arrears
on each Interest Payment Date applicable thereto, at maturity (whether by
acceleration or otherwise), after such maturity on demand and (with respect to
Eurodollar Loans) upon any repayment or prepayment thereof (on the amount
prepaid).
SECTION 2.8. DEFAULT INTEREST. If the Borrower or any Guarantor, as the
case may be, shall default in the payment of the principal of or interest on any
Loan or in the payment of any other amount becoming due hereunder (including,
without limitation, the reimbursement pursuant to Section 2.2(d) of any draft
drawn under a Letter of Credit), whether at stated maturity, by acceleration or
otherwise, the Borrower or such Guarantor, as the case may be, shall on demand
from time to time pay interest, to the extent permitted by law, on such
defaulted amount up to (but not including) the date of actual payment (after as
well as before judgment) at a rate per annum (computed on the basis of the
actual number of days elapsed over a year of 360 days) equal to (x) in the case
of Borrowings consisting of Eurodollar Loans, the Adjusted LIBOR Rate in effect
for such Borrowing plus 4-1/2% and (y) in the case of all other amounts, the
Alternate Base Rate plus 3-1/2%.
SECTION 2.9. OPTIONAL TERMINATION OR REDUCTION OF COMMITMENT. Upon at
least two Business Days' prior written notice to the Agent, the Borrower may at
any time in whole permanently terminate, or from time to time in part
permanently reduce, the Unused Total Commitment. Each such reduction of the
Commitments shall be in the principal amount of $5,000,000 or any integral
multiple thereof. Simultaneously with each reduction or termination of the
Commitment, the Borrower shall pay to the Agent for the account of each Bank the
Commitment Fee accrued on the amount of the Commitment of such Bank so
terminated or reduced through the date thereof. Any reduction of the Total
Commitment pursuant to this Section shall be applied pro rata to reduce the
Commitment of each Bank.
SECTION 2.10. ALTERNATE RATE OF INTEREST. In the event, and on each
occasion, that on the day two Business Days prior to the commencement of any
Interest Period for a Eurodollar Loan, the Agent shall have determined (which
determination shall be conclusive and binding upon the Borrower absent manifest
error) that reasonable means do not exist for ascertaining the applicable
Adjusted LIBOR
24
Rate, the Agent shall, as soon as practicable thereafter, give written or
telegraphic notice of such determination to the Borrower and the Banks, and any
request by the Borrower for a Borrowing of Eurodollar Loans (including pursuant
to a refinancing with Eurodollar Loans) pursuant to Section 2.5 or 2.11 shall be
deemed a request for a Borrowing of ABR Loans. After such notice shall have been
given and until the circumstances giving rise to such notice no longer exist,
each request for a Borrowing of Eurodollar Loans shall be deemed to be a request
for a Borrowing of ABR Loans.
SECTION 2.11. REFINANCING OF LOANS. The Borrower shall have the right,
at any time, on three Business Days' prior irrevocable notice to the Agent
(which notice, to be effective, must be received by the Agent not later than
12:00 noon, New York City time, on the third Business Day preceding the date of
any refinancing), (x) to refinance (without the satisfaction of the conditions
set forth in Section 4 as a condition to such refinancing) any outstanding
Borrowing or Borrowings of Loans of one Type (or a portion thereof) with a
Borrowing of Loans of the other Type or (y) to continue an outstanding Borrowing
of Eurodollar Loans for an additional Interest Period, subject to the following:
(a) as a condition to the refinancing of ABR Loans with
Eurodollar Loans and to the continuation of Eurodollar Loans for an
additional Interest Period, no Event of Default shall have occurred and
be continuing at the time of such refinancing;
(b) if less than a full Borrowing of Loans shall be
refinanced, such refinancing shall be made pro rata among the Banks in
accordance with the respective principal amounts of the Loans
comprising such Borrowing held by the Banks immediately prior to such
refinancing;
(c) the aggregate principal amount of Loans being refinanced
shall be at least $1,000,000, provided that no partial refinancing of a
Borrowing of Eurodollar Loans shall result in the Eurodollar Loans
remaining outstanding pursuant to such Borrowing being less than
$5,000,000 in aggregate principal amount;
(d) each Bank shall effect each refinancing by applying the
proceeds of its new Eurodollar Loan or ABR Loan, as the case may be, to
its Loan being refinanced;
(e) the Interest Period with respect to a Borrowing of
Eurodollar Loans effected by a refinancing or in respect to the
Borrowing of Eurodollar Loans being continued as Eurodollar Loans shall
commence on the date of refinancing or the expiration of the current
Interest Period applicable to such continuing Borrowing, as the case
may be;
25
(f) a Borrowing of Eurodollar Loans may be refinanced only on
the last day of an Interest Period applicable thereto; and
(g) each request for a refinancing with a Borrowing of
Eurodollar Loans which fails to state an applicable Interest Period
shall be deemed to be a request for an Interest Period of one month.
In the event that the Borrower shall not give notice to refinance any Borrowing
of Eurodollar Loans, or to continue such Borrowing as Eurodollar Loans, or shall
not be entitled to refinance or continue such Borrowing as Eurodollar Loans, in
each case as provided above, such Borrowing shall automatically be refinanced
with a Borrowing of ABR Loans at the expiration of the then-current Interest
Period. The Agent shall, after it receives notice from the Borrower, promptly
give each Bank notice of any refinancing, in whole or part, of any Loan made by
such Bank.
SECTION 2.12. COMMITMENT TERMINATION; CASH COLLATERAL. Upon the
Termination Date, the Total Commitment shall be terminated in full and the
Borrower shall pay the Loans in full and, except as the Agent may otherwise
agree in writing, if any Letter of Credit remains outstanding, deposit into the
Letter of Credit Account an amount equal to 105% of the amount by which the sum
of the aggregate Letter of Credit Outstandings exceeds the amount of cash held
in the Letter of Credit Account, such cash to be remitted to the Borrower upon
the expiration, cancellation, satisfaction or other termination of such
reimbursement obligations, or otherwise comply with Section 2.2(b).
SECTION 2.13. OPTIONAL PREPAYMENT OF LOANS; REIMBURSEMENT OF BANKS.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Loans, in whole or in part, (x) with respect to
Eurodollar Loans, upon at least three Business Days' prior written, telex or
facsimile notice to the Agent and (y) with respect to ABR Loans on the same
Business Day if written, telex or facsimile notice is received by the Agent
prior to 12:00 noon, New York City time, and thereafter upon at least one
Business Day's prior written, telex or facsimile notice to the Agent; provided,
however, that (i) with respect to Eurodollar Loans, each such partial prepayment
shall be in integral multiples of $1,000,000, (ii) with respect to ABR Loans,
each such partial prepayment shall be in integral multiples of $1,000,000, (iii)
no prepayment of Eurodollar Loans shall be permitted pursuant to this Section
2.13(a) other than on the last day of an Interest Period applicable thereto (and
other than in connection with the syndication of the credit facility evidenced
by this Agreement), and (iv) no partial prepayment of a Borrowing of Eurodollar
Loans shall result in the aggregate principal amount of the Eurodollar Loans
remaining outstanding pursuant to such Borrowing being less than $5,000,000.
Each notice of prepayment shall specify
26
the prepayment date, the principal amount of the Loans to be prepaid and in the
case of Eurodollar Loans, the Borrowing or Borrowings pursuant to which made,
shall be irrevocable and shall commit the Borrower to prepay such Loan by the
amount and on the date stated therein. The Agent shall, promptly after receiving
notice from the Borrower hereunder, notify each Bank of the principal amount of
the Loans held by such Bank which are to be prepaid, the prepayment date and the
manner of application of the prepayment.
(b) The Borrower shall reimburse each Bank on demand for any
loss incurred or to be incurred by it in the reemployment of the funds released
(i) resulting from any prepayment (for any reason whatsoever, including, without
limitation, refinancing with ABR Loans) of any Eurodollar Loan required or
permitted under this Agreement, if such Loan is prepaid other than on the last
day of the Interest Period for such Loan (including, without limitation, any
such prepayment in connection with the syndication of the credit facility
evidenced by this Agreement) or (ii) in the event that after the Borrower
delivers a notice of borrowing under Section 2.5 in respect of Eurodollar Loans,
such Loans are not made on the first day of the Interest Period specified in
such notice of borrowing for any reason other than a breach by such Bank of its
obligations hereunder. Such loss shall be the amount as reasonably determined by
such Bank as the excess, if any, of (A) the amount of interest which would have
accrued to such Bank on the amount so paid or not borrowed at a rate of interest
equal to the Adjusted LIBOR Rate for such Loan, for the period from the date of
such payment or failure to borrow to the last day (x) in the case of a payment
or refinancing with ABR Loans other than on the last day of the Interest Period
for such Loan, of the then current Interest Period for such Loan, or (y) in the
case of such failure to borrow, of the Interest Period for such Loan which would
have commenced on the date of such failure to borrow, over (B) the amount of
interest which would have accrued to such Bank on such amount by placing such
amount on deposit for a comparable period with leading banks in the London
interbank market. Each Bank shall deliver to the Borrower from time to time one
or more certificates setting forth the amount of such loss as determined by such
Bank.
(c) In the event the Borrower fails to prepay any Loan on the
date specified in any prepayment notice delivered pursuant to Section 2.13(a),
the Borrower on demand by any Bank shall pay to the Agent for the account of
such Bank any amounts required to compensate such Bank for any loss incurred by
such Bank as a result of such failure to prepay, including, without limitation,
any loss, cost or expenses incurred by reason of the acquisition of deposits or
other funds by such Bank to fulfill deposit obligations incurred in anticipation
of such prepayment, but without duplication of any amounts paid under Section
2.13(b). Each Bank shall deliver to the Borrower from time to time one or more
certificates setting forth the amount of such loss as determined by such Bank.
27
(d) Any partial prepayment of the Loans by the Borrower
pursuant to Sections 2.12 or 2.13 shall be applied as specified by the Borrower
or, in the absence of such specification, as determined by the Agent, provided
that in each case no Eurodollar Loans shall be prepaid pursuant to Section 2.12
to the extent that such Loan has an Interest Period ending after the required
date of prepayment unless and until all outstanding ABR Loans and Eurodollar
Loans with Interest Periods ending on such date have been repaid in full.
SECTION 2.14. RESERVE REQUIREMENTS; CHANGE IN CIRCUMSTANCES.
(a) Notwithstanding any other provision herein, if after the
date of this Agreement any change in applicable law or regulation or in the
interpretation or administration thereof by any Governmental Authority charged
with the interpretation or administration thereof (whether or not having the
force of law) shall change the basis of taxation of payments to any Bank of the
principal of or interest on any Eurodollar Loan made by such Bank or any fees or
other amounts payable hereunder (other than changes in respect of Taxes, Other
Taxes and taxes imposed on, or measured by, the net income or overall gross
receipts or franchise taxes of such Bank by the jurisdiction in which such Bank
has its principal office or in which the applicable lending office for such
Eurodollar Loan is located or by any political subdivision or taxing authority
therein, or by any other jurisdiction or by any political subdivision or taxing
authority therein other than a jurisdiction in which such Bank would not be
subject to tax but for the execution and performance of this Agreement), or
shall impose, modify or deem applicable any reserve, special deposit or similar
requirement against assets of, deposits with or for the account of or credit
extended by such Bank (except any such reserve requirement which is reflected in
the Adjusted LIBOR Rate) or shall impose on such Bank or the London interbank
market any other condition affecting this Agreement or the Eurodollar Loans made
by such Bank, and the result of any of the foregoing shall be to increase the
cost to such Bank of making or maintaining any Eurodollar Loan or to reduce the
amount of any sum received or receivable by such Bank hereunder or under the
Notes (whether of principal, interest or otherwise) by an amount reasonably
deemed by such Bank to be material, then the Borrower will pay to such Bank in
accordance with paragraph (c) below such additional amount or amounts as will
compensate such Bank for such additional costs incurred or reduction suffered.
(b) If any Bank shall have reasonably determined that the
applicability of any change in any law, rule, regulation or guideline adopted
pursuant to or arising out of the July 1988 report of the Basel Committee on
Banking Regulations and Supervisory Practices entitled "International
Convergence of Capital Measurement and Capital Standards", or the adoption or
effectiveness after the date hereof of any law, rule, regulation or guideline
regarding capital adequacy, or any change in any of the foregoing or in the
interpretation or administration of any of the foregoing by any
28
Governmental Authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Bank (or any
Lending Office of such Bank) or any Bank's holding company with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any such authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Bank's capital or on the capital
of such Bank's holding company, if any, as a consequence of this Agreement, the
Loans made by such Bank pursuant hereto, such Bank's Commitment hereunder or the
issuance of, or participation in, any Letter of Credit by such Bank to a level
below that which such Bank or such Bank's holding company could have achieved
but for such adoption, change or compliance (taking into account such Bank's
policies and the policies of such Bank's holding company with respect to capital
adequacy) by an amount reasonably deemed by such Bank to be material, then from
time to time the Borrower shall pay to such Bank such additional amount or
amounts as will compensate such Bank or such Bank's holding company for any such
reduction suffered.
(c) A certificate of each Bank setting forth such amount or
amounts as shall be necessary to compensate such Bank or its holding company as
specified in paragraph (a) or (b) above, as the case may be, shall be delivered
to the Borrower and shall be conclusive absent manifest error. The Borrower
shall pay each Bank the amount shown as due on any such certificate delivered to
it within 10 days after its receipt of the same. Any Bank receiving any such
payment shall promptly make a refund thereof to the Borrower if the law,
regulation, guideline or change in circumstances giving rise to such payment is
subsequently deemed or held to be invalid or inapplicable.
(d) Failure on the part of any Bank to demand compensation for
any increased costs or reduction in amounts received or receivable or reduction
in return on capital with respect to any period shall not constitute a waiver of
such Bank's right to demand compensation with respect to such period or any
other period. The protection of this Section shall be available to each Bank
regardless of any possible contention of the invalidity or inapplicability of
the law, rule, regulation, guideline or other change or condition which shall
have occurred or been imposed.
29
SECTION 2.15. CHANGE IN LEGALITY.
(a) Notwithstanding anything to the contrary contained
elsewhere in this Agreement, if (x) any change in any law or regulation or in
the interpretation thereof by any Governmental Authority charged with the
administration thereof shall make it unlawful for a Bank to make or maintain a
Eurodollar Loan or to give effect to its obligations as contemplated hereby with
respect to a Eurodollar Loan or (y) at any time any Bank determines that the
making or continuance of any of its Eurodollar Loans has become impracticable as
a result of a contingency occurring after the date hereof which adversely
affects the London interbank market or the position of such Bank in such market,
then, by written notice to the Borrower, such Bank may (i) declare that
Eurodollar Loans will not thereafter be made by such Bank hereunder, whereupon
any request by the Borrower for a Eurodollar Borrowing shall, as to such Bank
only, be deemed a request for an ABR Loan unless such declaration shall be
subsequently withdrawn; and (ii) require that all outstanding Eurodollar Loans
made by it be converted to ABR Loans, in which event all such Eurodollar Loans
shall be automatically converted to ABR Loans as of the effective date of such
notice as provided in paragraph (b) below. In the event any Bank shall exercise
its rights under clause (i) or (ii) of this paragraph (a), all payments and
prepayments of principal which would otherwise have been applied to repay the
Eurodollar Loans that would have been made by such Bank or the converted
Eurodollar Loans of such Bank shall instead be applied to repay the ABR Loans
made by such Bank in lieu of, or resulting from the conversion of, such
Eurodollar Loans.
(b) For purposes of this Section 2.15, a notice to the
Borrower by any Bank pursuant to paragraph (a) above shall be effective, if
lawful, and if any Eurodollar Loans shall then be outstanding, on the last day
of the then-current Interest Period, otherwise, such notice shall be effective
on the date of receipt by the Borrower.
SECTION 2.16. PRO RATA TREATMENT, ETC. All payments and repayments of
principal and interest in respect of the Loans (except as provided in Sections
2.14 and 2.15) shall be made pro rata among the Banks in accordance with the
then outstanding principal amount of the Loans and/or participations in Letter
of Credit Outstandings and all outstanding undrawn Letters of Credit (and the
unreimbursed amount of drawn Letters of Credit) hereunder and all payments of
Commitment Fees and Letter of Credit Fees (other than those payable to a
Fronting Bank) shall be made pro rata among the Banks in accordance with their
Commitments. All payments by the Borrower hereunder and under the Notes shall be
(i) net of any tax applicable to the Borrower or Guarantor and (ii) made in
Dollars in immediately available funds at the office of the Agent by 12:00 noon,
New York City time, on the date on which such payment shall be due. Interest in
respect of any Loan hereunder shall accrue from and including the
30
date of such Loan to but excluding the date on which such Loan is paid in full
or converted to a Loan of a different Type.
SECTION 2.17. TAXES.
(a) Any and all payments by the Borrower or any Guarantor
hereunder and under the Notes shall be made free and clear of and without
deduction for any and all current or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding (i)
taxes imposed on or measured by the net income or overall gross receipts of the
Agent or any Bank (or any transferee or assignee thereof, including a
participation holder (any such entity being called a "Transferee")) and
franchise taxes imposed on the Agent or any Bank (or Transferee) by the United
States or any jurisdiction under the laws of which the Agent or any such Bank
(or Transferee) is organized or in which the applicable lending office of any
such Bank (or Transferee) is located or any political subdivision thereof or by
any other jurisdiction or by any political subdivision or taxing authority
therein other than a jurisdiction in which the Agent or such Bank would not be
subject to tax but for the execution and performance of this Agreement and (ii)
taxes, levies, imposts, deductions, charges or withholdings ("Amounts") with
respect to payments hereunder or under the Notes to a Bank (or Transferee) in
accordance with laws in effect on the later of the date of this Agreement and
the date such Bank (or Transferee) becomes a Bank (or Transferee, as the case
may be), but not excluding, with respect to such Bank (or Transferee), any
increase in such Amounts solely as a result of any change in such laws occurring
after such later date or any Amounts that would not have been imposed but for
actions (other than actions contemplated by this Agreement or the Notes) taken
by the Borrower after such later date (all such nonexcluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities being hereinafter
referred to as "Taxes"). If the Borrower or any Guarantor shall be required by
law to deduct any Taxes from or in respect of any sum payable hereunder to the
Banks (or any Transferee) or the Agent, (i) the sum payable shall be increased
by the amount necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section) such Bank
(or Transferee) or the Agent (as the case may be) shall receive an amount equal
to the sum it would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall pay the full
amount deducted to the relevant taxing authority or other Governmental Authority
in accordance with applicable law.
(b) In addition, the Borrower agrees to pay any current or
future stamp or documentary taxes or any other excise or property taxes,
charges, assessments or similar levies that arise from any payment made
hereunder or from the execution, delivery or registration of, or otherwise with
respect to, this Agreement or any other Loan Document (hereinafter referred to
as "Other Taxes").
31
(c) The Borrower will indemnify each Bank (or Transferee) and
the Agent for the full amount of Taxes and Other Taxes paid by such Bank (or
Transferee) or the 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 by
the relevant taxing authority or other Governmental Authority. Such
indemnification shall be made within 30 days after the date any Bank (or
Transferee) or the Agent, as the case may be, makes written demand therefor. If
a Bank (or Transferee) or the Agent shall become aware that it is entitled to
receive a refund in respect of Taxes or Other Taxes as to which it has been
indemnified by the Borrower pursuant to this Section, it shall promptly notify
the Borrower of the availability of such refund and shall, within 30 days after
receipt of a request by the Borrower, apply for such refund at the Borrower's
expense. If any Bank (or Transferee) or the Agent receives a refund in respect
of any Taxes or Other Taxes as to which it has been indemnified by the Borrower
pursuant to this Section, it shall promptly notify the Borrower of such refund
and shall, within 30 days after receipt of a request by the Borrower (or
promptly upon receipt, if the Borrower has requested application for such refund
pursuant hereto), repay such refund to the Borrower (to the extent of amounts
that have been paid by the Borrower under this Section with respect to such
refund plus interest that is received by the Bank (or Transferee) or the Agent
as part of the refund), net of all out-of-pocket expenses of such Bank (or
Transferee) or the Agent and without additional interest thereon; provided that
the Borrower, upon the request of such Bank (or Transferee) or the Agent, agrees
to return such refund (plus penalties, interest or other charges) to such Bank
(or Transferee) or the Agent in the event such Bank (or Transferee) or the Agent
is required to repay such refund. Nothing contained in this subsection (c) shall
require any Bank (or Transferee) or the Agent to make available any of its tax
returns (or any other information relating to its taxes that it deems to be
confidential).
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes withheld by the Borrower in respect of any payment to any Bank (or
Transferee) or the Agent, the Borrower will furnish to the Agent, at its address
referred to on the signature pages hereof, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
contained herein, the agreements and obligations contained in this Section shall
survive the payment in full of the principal of and interest on all Loans made
hereunder.
(f) Each Bank (or Transferee) that is organized under the laws
of a jurisdiction outside the United States shall, if legally able to do so,
prior to the immediately following due date of any payment by the Borrower
hereunder, deliver to the Borrower such certificates, documents or other
evidence, as required by the Code or
32
Treasury Regulations issued pursuant thereto, including (A) Internal Revenue
Service Form W-8 or W-9 and (B) Internal Revenue Service Form 1001 or Form 4224
and any other certificate or statement of exemption required by Treasury
Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent version
thereof or successors thereto, properly completed and duly executed by such Bank
(or Transferee) establishing that such payment is (i) not subject to United
States Federal withholding tax under the Code because such payment is
effectively connected with the conduct by such Bank (or Transferee) of a trade
or business in the United States or (ii) totally exempt from United States
Federal withholding tax or subject to a reduced rate of such tax under a
provision of an applicable tax treaty. Unless the Borrower and the Agent have
received forms or other documents satisfactory to them indicating that such
payments hereunder or under the Notes are not subject to United States Federal
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower or the Agent shall withhold taxes from such payments at
the applicable statutory rate.
(g) The Borrower shall not be required to pay any additional
amounts to any Bank (or Transferee) in respect of United States Federal
withholding tax pursuant to subsection (a) above if the obligation to pay such
additional amounts would not have arisen but for a failure by such Bank (or
Transferee) to comply with the provisions of subsection (f) above.
(h) Any Bank (or Transferee) claiming any additional amounts
payable pursuant to this Section 2.17 shall use reasonable efforts (consistent
with legal and regulatory restrictions) to file any certificate or document
requested by the Borrower or to change the jurisdiction of its applicable
lending office if the making of such a filing or change would avoid the need for
or reduce the amount of any such additional amounts that may thereafter accrue
and would not, in the sole reasonable determination of such Bank, be otherwise
materially disadvantageous to such Bank (or Transferee).
SECTION 2.18. CERTAIN FEES. The Borrower shall pay to the Agent, for
the respective accounts of the Agent and the Banks, the fees set forth in that
certain letter agreement dated May 12, 1997 among the Agent, Chase Securities
Inc., FCI and the Borrower.
SECTION 2.19. COMMITMENT FEE. The Borrower shall pay to the Banks a
commitment fee (the "Commitment Fee") for the period commencing on the date the
Commitment Letter is executed to the Termination Date or the earlier date of
termination of the Commitment, computed (on the basis of the actual number of
days elapsed over a year of 360 days) at the rate of one-half of one percent
(1/2%) per annum on the average daily Unused Total Commitment. Such Commitment
Fee, to the extent then accrued, shall be payable (x) monthly, in arrears, on
the last calendar day of each month, (y) on the Termination Date and (z) as
provided in Section 2.9
33
hereof, upon any reduction or termination in whole or in part of the Total
Commitment.
SECTION 2.20. LETTER OF CREDIT FEES. The Borrower shall pay with
respect to each Letter of Credit (i) to the Agent on behalf of the Banks a fee
calculated (on the basis of the actual number of days elapsed over a year of 360
days) at the rate of (x) two and one-half (2-1/2%) per annum on the daily
average Letter of Credit Outstandings and (ii) to the Fronting Bank such
Fronting Bank's customary fees for issuance, amendments and processing referred
to in Section 2.2. In addition, the Borrower agrees to pay each Fronting Bank
for its account a fronting fee in respect of each Letter of Credit issued by
such Fronting Bank, for the period from and including the date of issuance of
such Letter of Credit to and including the date of termination of such Letter of
Credit, computed at a rate, and payable at times, to be determined by such
Fronting Bank, the Borrower and the Agent. Accrued fees described in clause (i)
of the first sentence of this paragraph in respect of each Letter of Credit
shall be due and payable monthly in arrears on the last calendar day of each
month and on the Termination Date, or such earlier date as the Total Commitment
is terminated. Accrued fees described in clause (ii) of the first sentence of
this paragraph in respect of each Letter of Credit shall be payable at times to
be determined by the Fronting Bank, the Borrower and the Agent.
SECTION 2.21. NATURE OF FEES. All Fees shall be paid on the dates due,
in immediately available funds, to the Agent for the respective accounts of the
Agent and the Banks, as provided herein and in the letters described in Section
2.18. Once paid, none of the Fees shall be refundable under any circumstances.
SECTION 2.22. PRIORITY AND LIENS. The Borrower, FCI and Holdings each
hereby covenants, represents and warrants that, upon entry of the Interim Order
(i) pursuant to Section 364(c)(1) of the Bankruptcy Code, the Obligations of the
Borrower, FCI and Holdings hereunder and under the Loan Documents and in respect
of Indebtedness permitted by Sections 6.3(vi) and Section 6.3(vii) shall at all
times constitute allowed administrative expense claims in the Cases having
priority over all administrative expenses of the kind specified in Sections
503(b) or 507(b) of the Bankruptcy Code, (ii) pursuant to Section 364(c)(2) of
the Bankruptcy Code, the Obligations of the Borrower, FCI and Holdings hereunder
and under the Loan Documents and in respect of Indebtedness permitted by
Sections 6.3(vi) and Section 6.3(vii) shall at all times be secured by a
perfected first priority Lien on all unencumbered property of the Borrower, FCI
and Holdings (including, but not limited to, property that secured the
obligations of the Borrower under the Existing Agreements prior to the Filing
Date) and all cash maintained in the Letter of Credit Account and any direct
investments of the funds contained therein and (iii) pursuant to Section
364(c)(3) of the Bankruptcy Code, the Obligations of the Borrower, FCI and
Holdings hereunder and under the Loan Documents and in respect of Indebtedness
permitted by Sections 6.3(vi) and Section
34
6.3(vii) shall be secured by a perfected Lien upon all property of the Borrower,
FCI and Holdings (other than the property that is subject to existing Liens
granted under the Existing Agreements, all of which Liens shall be released at
the time of the initial extension hereunder) that is subject to valid and
perfected Liens in existence on the Filing Date, junior to such valid and
perfected Liens, subject in each case only to (x) in the event of the occurrence
and during the continuance of an Event of Default or an event that would
constitute an Event of Default with the giving of notice or lapse of time or
both, the payment of allowed and unpaid professional fees and disbursements
incurred by the Borrower, FCI and Holdings and any statutory committees
appointed in the Cases in an aggregate amount not in excess of $2,500,000 and
(y) the payment of unpaid fees pursuant to 28 U.S.C. ss.1930 (collectively, the
"Carve-Out"), provided that following the Termination Date amounts in the Letter
of Credit Account shall not be subject to the Carve-Out. The Banks agree that so
long as no Event of Default or event which with the giving of notice or lapse of
time or both would constitute an Event of Default shall have occurred, the
Borrower, FCI and Holdings shall be permitted to pay compensation and
reimbursement of expenses allowed and payable under 11 U.S.C. ss. 330 and 11
U.S.C. ss. 331, as the same may be due and payable, and the same shall not
reduce the Carve-Out.
SECTION 2.23. RIGHT OF SET-OFF. Subject to the provisions of Section
7.1, upon the occurrence and during the continuance of any Event of Default, the
Agent and each Bank is hereby authorized at any time and from time to time, to
the fullest extent permitted by law and without further order of or application
to the Bankruptcy Court, to set off and apply any and all deposits (general or
special, time or demand, provisional or final) at any time held and other
indebtedness at any time owing by the Agent and each such Bank to or for the
credit or the account of the Borrower or any Guarantor against any and all of
the obligations of such Borrower or Guarantor now or hereafter existing under
the Loan Documents, irrespective of whether or not such Bank shall have made any
demand under any Loan Document and although such obligations may be unmatured.
Each Bank and the Agent agrees promptly to notify the Borrower and Guarantors
after any such set-off and application made by such Bank or by the Agent, as the
case may be, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank and the Agent
under this Section are in addition to other rights and remedies which such Bank
and the Agent may have upon the occurrence and during the continuance of any
Event of Default.
SECTION 2.24. SECURITY INTEREST IN LETTER OF CREDIT ACCOUNT. Pursuant
to Section 364(c)(2) of the Bankruptcy Code, the Borrower, FCI and Holdings
hereby assign and pledge to the Agent, for its benefit and for the ratable
benefit of the Banks, and hereby grant to the Agent, for its benefit and for the
ratable benefit of the Banks, a first priority security interest, senior to all
other Liens, if any, in all of the Borrower's, FCI's and Holdings' right, title
and
35
interest in and to the Letter of Credit Account and any direct investment of
the funds contained therein.
SECTION 2.25. PAYMENT OF OBLIGATIONS. Upon the maturity (whether by
acceleration or otherwise) of any of the obligations under this Agreement or any
of the other Loan Documents of the Borrower and the Guarantors, the Banks shall
be entitled to immediate payment of such obligations without further application
to or order of the Bankruptcy Court.
SECTION 2.26. NO DISCHARGE; SURVIVAL OF CLAIMS. Each of the Borrower,
FCI and Holdings agrees that (i) its obligations hereunder shall not be
discharged by the entry of an order confirming the Reorganization Plan (and each
of the Borrower, FCI and Holdings, pursuant to Section 1141(d)(4) of the
Bankruptcy Code and upon entry of the Interim Order, hereby waives any such
discharge) and (ii) the Superpriority Claim granted to the Agent and the Banks
pursuant to the Order and described in Section 2.22 and the Liens granted to the
Agent pursuant to the Order and described in Sections 2.22 and 2.24 shall not be
affected in any manner by the entry of an order confirming the Reorganization
Plan.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce the Banks to make Loans and issue and/or participate
in Letters of Credit hereunder, the Borrower and each of the Guarantors jointly
and severally represent and warrant as follows:
SECTION 3.1. ORGANIZATION AND AUTHORITY. Each of the Borrower and the
Guarantors (i) is a corporation duly organized and validly existing under the
laws of the State of its incorporation and is duly qualified as a foreign
corporation and is in good standing in each jurisdiction in which the failure to
so qualify would have a material adverse effect on the financial condition,
operations, business, properties or assets of the Borrower and the Guarantors
taken as a whole; (ii) has the requisite corporate power and authority to effect
the transactions contemplated hereby, and by the other Loan Documents to which
it is a party (subject to approval of the Bankruptcy Court, in the case of the
Borrower, FCI and Holdings with respect to matters not in the ordinary course of
business); and (iii) has all requisite corporate power and authority and the
legal right to own, pledge, mortgage and operate its properties, and to conduct
its business as now or currently proposed to be conducted (subject to approval
of the Bankruptcy Court, in the case of the Borrower, FCI and Holdings with
respect to matters not in the ordinary course of business).
SECTION 3.2. DUE EXECUTION. The execution, delivery and performance by
each of the Borrower and the Guarantors of each of the Loan Documents to which
it is a party (i) are within the respective corporate powers of each of the
Borrower and the Guarantors, have
36
been duly authorized by all necessary corporate action, including the consent of
shareholders where required, and do not (A) contravene the charter or by-laws of
any of the Borrower or the Guarantors, (B) violate any law (including, without
limitation, the Securities Exchange Act of 1934) or regulation (including,
without limitation, Regulations G, T, U or X of the Board of Governors of the
Federal Reserve System), or any order or decree of any court or governmental
instrumentality, (C) violate or result in a breach of, or constitute a default
under, any material indenture, mortgage or deed of trust (entered into after the
Filing Date in the case of the Borrower, Holdings and FCI and whenever entered
into in the case of the Subsidiary Guarantors) or any material lease, agreement
or other instrument (entered into after the Filing Date in the case of the
Borrower, Holdings and FCI and whenever entered into in the case of the
Subsidiary Guarantors) binding on the Borrower or the Guarantors or any of their
properties, or (D) result in or require the creation or imposition of any Lien
upon any of the property of any of the Borrower, Holdings or the Guarantors
other than the Liens granted pursuant to this Agreement; and (iii) do not
require the consent, authorization by or approval of or notice to or filing or
registration with any Governmental Authority other than (in the case of the
Borrower, Holdings and FCI) the entry of the Orders. This Agreement has been
duly executed and delivered by each of the Borrower and the Guarantors. This
Agreement is, and each of the other Loan Documents to which the Borrower and
each of the Guarantors is or will be a party, when delivered hereunder or
thereunder, will be, a legal, valid and binding obligation of the Borrower and
each Guarantor, as the case may be, enforceable against the Borrower and the
Guarantors, as the case may be, in accordance with its terms, subject (in the
case of the Borrower, FCI and Holdings) to the terms of the Orders.
SECTION 3.3. STATEMENTS MADE. The information that has been delivered
in writing by the Borrower or any of the Guarantors to the Agent or to the
Bankruptcy Court in connection with any Loan Document, and any financial
statement delivered pursuant hereto or thereto (other than to the extent that
any such statements constitute projections), taken as a whole and in light of
the circumstances in which made, contains no untrue statement of a material fact
and does not omit to state a material fact necessary to make such statements not
misleading; and, to the extent that any such information constitutes
projections, such projections were prepared in good faith on the basis of
assumptions, methods, data, tests and information believed by the Borrower or
such Guarantor to be reasonable at the time such projections were furnished.
SECTION 3.4. FINANCIAL STATEMENTS. The Borrower has furnished the Banks
with copies of the audited consolidated financial statement and schedules of the
Borrower and the Guarantors for the fiscal year ended December 31, 1996. Such
financial statements present fairly the financial condition and results of
operations of the Borrower and the Guarantors on a consolidated basis as of such
37
dates and for such periods; such balance sheets and the notes thereto disclose
all liabilities, direct or contingent, of the Borrower and the Guarantors as of
the dates thereof required to be disclosed by GAAP and such financial statements
were prepared in a manner consistent with GAAP, subject to normal year end
adjustments. No material adverse change in the, operations, business,
properties, assets, prospects or condition (financial or otherwise) of the
Borrower and the Guarantors, taken as a whole, has occurred from that set forth
in the Borrower's audited consolidated financial statements for the year ended
December 31, 1996, other than (x) those which customarily occur and as a result
of events leading up to and following the commencement of a proceeding under
Chapter 11 of the Bankruptcy Code, (y) the commencement of the Cases and (z)
those, if any, disclosed in a writing satisfactory to the Banks delivered to the
Agent prior to the execution of this Agreement. Schedule 3.4 sets forth all
Indebtedness incurred since December 31, 1996.
SECTION 3.5. OWNERSHIP. Each of the Persons listed on Schedule 3.5 is a
wholly-owned, direct or indirect Subsidiary of the Borrower, and the Borrower
owns no other Subsidiaries, whether directly or indirectly, other than as set
forth on Schedule 3.5.
SECTION 3.6. LIENS. Except for Liens existing on the Filing Date as
reflected on Schedule 3.6, there are no Liens of any nature whatsoever on any
assets of the Borrower or any of the Guarantors other than: (i) Liens granted
pursuant to the Existing Agreements; (ii) Permitted Liens; (iii) Liens permitted
pursuant to Section 6.1(i), (iv), (v) and (vi); and (iv) Liens in favor of the
Agent and the Banks. Neither the Borrower nor the Guarantors are parties to any
contract, agreement, lease or instrument the performance of which, either
unconditionally or upon the happening of an event, will result in or require the
creation of a Lien on any assets of the Borrower or any Guarantor or otherwise
result in a violation of this Agreement other than the Liens granted to the
Agent and the Banks as provided for in this Agreement.
SECTION 3.7. COMPLIANCE WITH LAW.
(a) (i) The operations of the Borrower and the Guarantors
comply in all material respects with all applicable environmental, health and
safety statutes and regulations, including, without limitation, regulations
promulgated under the Resource Conservation and Recovery Act (42 U.S.C.
ss.ss.6901 et seq.); (ii) to the Borrower's and each of the Guarantor's
knowledge, none of the operations of the Borrower or the Guarantors is the
subject of any Federal or state investigation evaluating whether any remedial
action involving a material expenditure by the Borrower or any Guarantor is
needed to respond to a release of any Hazardous Waste or Hazardous Substance (as
such terms are defined in any applicable state or Federal environmental law or
regulations) into the environment; and (iii) to the Borrower's and each of the
Guarantor's knowledge, the Borrower and the Guarantors do not have any material
contingent liability in
38
connection with any release of any Hazardous Waste or Hazardous Substance into
the environment.
(b) Neither the Borrower nor any Guarantor is, to the best of
its knowledge, in violation of any law, rule or regulation, or in default with
respect to any judgment, writ, injunction or decree of any Governmental
Authority the violation of which, or a default with respect to which, would have
a material adverse effect on the financial condition, operations, business,
properties or assets of the Borrower and the Guarantors taken as a whole.
SECTION 3.8. INSURANCE. All policies of insurance of any kind or nature
owned by or issued to the Borrower and the Guarantors, including, without
limitation, policies of life, fire, theft, product liability, public liability,
property damage, other casualty, employee fidelity, workers' compensation,
employee health and welfare, title, property and liability insurance, are in
full force and effect and are of a nature and provide such coverage as is
sufficient and as is customarily carried by companies of the size and character
of the Borrower and the Guarantors.
SECTION 3.9. THE ORDERS. On the date of the making of the initial Loans
or the issuance of the initial Letters of Credit hereunder, whichever first
occurs, the Interim Order will have been entered and will not have been stayed,
amended, vacated, reversed or rescinded. On the date of the making of any Loan
or the issuance of any Letter of Credit, the Interim Order or the Final Order,
as the case may be, shall have been entered and shall not have been amended,
stayed, vacated or rescinded. Upon the maturity (whether by the acceleration or
otherwise) of any of the obligations of the Borrower and the Guarantors
hereunder and under the other Loan Documents, the Banks shall, subject to the
provisions of Section 7.1, be entitled to immediate payment of such obligations,
and to enforce the remedies provided for hereunder, without further application
to or order by the Bankruptcy Court.
SECTION 3.10. USE OF PROCEEDS. The proceeds of the Loans shall be used
(i) to refinance and replace extensions of credit under the Existing Agreements,
and (ii) for general working capital of the Borrower and the Guarantors.
SECTION 3.11. LITIGATION. Except as set forth on Schedule 3.11, there
are no unstayed actions, suits or proceedings pending or, to the knowledge of
the Borrower or the Guarantors, threatened against or affecting the Borrower or
the Guarantors or any of its properties, before any court or governmental
department, commission, board, bureau, agency or instrumentality, domestic or
foreign, which is reasonably likely to have a material adverse effect on the
financial condition, business, properties, prospects, operations or assets of
the Borrower and the Guarantors, taken as a whole.
39
SECTION 4. CONDITIONS OF LENDING
SECTION 4.1. CONDITIONS PRECEDENT TO INITIAL LOANS AND INITIAL LETTERS
OF CREDIT. The obligation of the Banks to make the initial Loans or the Fronting
Bank to issue the initial Letter of Credit, whichever may occur first, is
subject to the following conditions precedent:
(a) Supporting Documents. The Agent shall have received for
each of the Borrower and the Guarantors:
(i) a copy of such entity's certificate of
incorporation, as amended, certified as of a recent date by
the Secretary of State of the state of its incorporation;
(ii) a certificate of such Secretary of State, dated
as of a recent date, as to the good standing of and payment of
taxes by, that entity and as to the charter documents on file
in the office of such Secretary of State; and
(iii) a certificate of the Secretary or an Assistant
Secretary of that entity dated the date of the initial Loans
or the initial Letter of Credit hereunder, whichever first
occurs, and certifying (A) that attached thereto is a true and
complete copy of the by-laws of that entity as in effect on
the date of such certification, (B) that attached thereto is a
true and complete copy of resolutions adopted by the Board of
Directors of that entity authorizing the Borrowings and Letter
of Credit extensions hereunder, the execution, delivery and
performance in accordance with their respective terms of this
Agreement, the Notes to be executed by it, the Loan Documents
and any other documents required or contemplated hereunder or
thereunder and the granting of the security interest in the
Letter of Credit Account contemplated hereby, (C) that the
certificate of incorporation of that entity has not been
amended since the date of the last amendment thereto indicated
on the certificate of the Secretary of State furnished
pursuant to clause (i) above and (D) as to the incumbency and
specimen signature of each officer of that entity executing
this Agreement, the Notes to be executed by it and the Loan
Documents or any other document delivered by it in connection
herewith or therewith (such certificate to contain a
certification by another officer of that entity as to the
incumbency and signature of the officer signing the
certificate referred to in this clause (iii)).
40
(b) Notes. On or before the date of the initial Loans or the
issuance of the initial Letter of Credit hereunder, whichever first
occurs, the Agent shall have received Notes executed on behalf of the
Borrower, dated the Closing Date, payable to the order of each of the
Banks, in an amount equal to such Bank's Commitment.
(c) Interim Order. At the time of the making of the initial
Loans or at the time of the issuance of the initial Letter of Credit,
whichever first occurs, the Agent and the Banks shall have received a
certified copy of an order of the Bankruptcy Court in substantially the
form of Exhibit B-1 (the "Interim Order") approving the Loan Documents
and granting the Superpriority Claim status and senior Liens described
in Section 2.22 which shall (i) have been entered upon an application
or motion of the Borrower, FCI and Holdings satisfactory in form and
substance to the Agent on no less than two Business Days' prior notice
to such parties in interest in the Cases as may be satisfactory to the
Agent, (ii) authorize extensions of credit in amounts satisfactory to
the Agent, (iii) approve the payment by the Borrower of all of the Fees
set forth in Section 2.18, (iv) be in full force and effect, and (v)
not have been stayed, reversed, modified or amended in any respect and,
if the Interim Order is the subject of a pending appeal in any respect,
neither the making of such Loans nor the issuance of such Letter of
Credit nor the performance by the Borrower or any of the Guarantors of
any of their respective obligations hereunder or under the Loan
Documents or under any other instrument or agreement referred to herein
shall be the subject of a presently effective stay pending appeal.
(d) Security and Pledge Agreements; Perfection. (i) The
Borrower, FCI and Holdings shall have duly executed and delivered to
the Agent a Security and Pledge Agreement in substantially the form of
Exhibit C-1, (ii) the Subsidiary Guarantors shall have duly executed
and delivered to the Agent a Security and Pledge Agreement in
substantially the form of Exhibit C-2 and (iii) certain of the
Subsidiary Guarantors and the Borrower shall have duly executed and
delivered to the Agent a Trademark Security Agreement in substantially
the form of Exhibit C-3 (collectively, and as the same may from time to
time be amended, modified or supplemented, the "Security and Pledge
Agreements"); and the Agent shall have received evidence satisfactory
to it that all actions that the Agent may reasonably deem necessary or
desirable in order to perfect and protect the Liens created by the
Security and Pledge Agreements have been taken (including, without
limitation, the delivery to the Agent of (1) certificates representing
the Pledged Shares referred to in the Security and Pledge Agreements,
accompanied by undated stock powers executed in blank, (2) instruments
evidencing the Pledged Debt referred to in the Security and Pledge
Agreements endorsed in blank, (3) acknowledgment copies
41
or stamped receipt copies of financing statements satisfactory in form
and substance to the Agent duly filed on or before the Closing Date
under the Uniform Commercial Code of all jurisdictions that the Agent
may deem necessary or desirable in order to perfect and protect the
Liens granted by the Security and Pledge Agreements, (4) copies of the
Assigned Agreements referred to in the Security and Pledge Agreements,
together with a consent to such assignment in form and substance
satisfactory to the Agent duly executed by each party to such Assigned
Agreements other than the Borrower and its Subsidiaries and (5)
evidence of filings with the United States Patent and Trademark Office
with respect to the Trademark Security Agreement referred to in clause
(iii) of this Section and evidence that all other actions that the
Agent may deem necessary or desirable in order to perfect and protect
the Liens created by such Trademark Security Agreement have been
taken).
(e) Release of Liens. The Agent shall have received evidence
satisfactory to the Agent of the release of all Liens granted under the
Existing Agreements in a manner satisfactory to the Agent.
(f) Rights under Existing Agreements. The Agent shall have
received evidence satisfactory to it that the holders of all of the
Liens granted pursuant to the Existing Agreements (including, without
limitation, Liens securing obligations of the nature described in
clause (vi) of the definition of the term "Indebtedness" herein) have
agreed, in a manner satisfactory to the Agent, to forbear from
exercising any rights against the Subsidiary Guarantors or their
property thereunder as a consequence of the commencement of the Cases
or otherwise prior to the occurrence of the Closing Date.
(g) Reorganization Plan. The Agent shall have received
evidence satisfactory to it that (i) the Borrower and FCI have filed
the Proposed Plan with the Bankruptcy Court, (ii) the Borrower and FCI
shall have solicited acceptances of the Proposed Plan pursuant to the
Registration Statement that is referred to in the definition of the
term "Proposed Plan" herein and (iii) prior to the filing of the
petitions initiating the Cases, the Borrower and FCI shall have
received acceptances of the Proposed Plan from the holders of at least
two-thirds in amount of the Borrower's senior subordinated debentures
who number more than one-half of such holders.
(h) Financing Commitment. The Commitment Letter dated May 12,
1997 among the Agent, Chase Securities, Inc., the Borrower and FCI with
respect to a commitment to provide, at the time of the consummation of
the Reorganization Plan, the aggregate principal amount of no less than
$200,000,000 as a credit facility for certain of the Subsidiary
Guarantors shall be in full force and effect.
42
(i) First Day Orders. All of the "first day orders" presented
to the Bankruptcy Court at or about the time of the commencement of the
Cases shall be reasonably satisfactory in form and substance to the
Agent.
(j) Opinion of Counsel to the Borrower. The Agent and the
Banks shall have received the favorable written opinion of counsel to
the Borrower and the Guarantors reasonably acceptable to the Agent,
dated the date of the initial Loans or the issuance of the initial
Letter of Credit, whichever first occurs, substantially in the form of
Exhibit D.
(k) Payment of Fees. The Borrower shall have paid to the Agent
the then unpaid balance of all accrued and unpaid Fees then owed under
and pursuant to this Agreement and the letters referred to in Section
2.18.
(l) Corporate and Judicial Proceedings. All corporate and
judicial proceedings and all instruments and agreements in connection
with the transactions among the Borrower, the Guarantors, the Agent and
the Banks contemplated by this Agreement shall be reasonably
satisfactory in form and substance to the Agent, and the Agent shall
have received all information and copies of all documents and papers,
including records of corporate and judicial proceedings, which the Agent
may have reasonably requested in connection therewith, such documents
and papers where appropriate to be certified by proper corporate,
governmental or judicial authorities.
(m) Information. The Agent shall have received such
information (financial or otherwise) as may be reasonably requested by
the Agent.
(n) Compliance with Laws. The Borrower and the Guarantors
shall have granted the Agent access to and the right to inspect all
reports, audits and other internal information of the Borrower and the
Guarantors relating to environmental matters, and any third party
verification of certain matters relating to compliance with
environmental laws and regulations requested by the Agent, and the
Agent shall be reasonably satisfied that the Borrower and the
Guarantors are in compliance in all material respects with all
applicable environmental laws and regulations and be satisfied with the
costs of maintaining such compliance.
(o) Outstanding Obligations Under Existing Agreements. The
aggregate principal amount outstanding under the Existing Agreements in
respect of direct borrowings and letters of credit shall not exceed an
amount that is satisfactory to the Agent.
43
(p) UCC-11 Searches. The Agent shall have received UCC-11
searches conducted in the jurisdictions in which the Borrower and the
Guarantors conduct business (dated as of a date reasonably satisfactory
to the Agent), reflecting the absence of Liens and encumbrances in the
assets of the Borrower and the Guarantors other than such Liens as may
be satisfactory to the Agent.
(q) Closing Documents. The Agent shall have received all
closing documents (including security documents granting liens in favor
of the Agent contemplated hereby) required by this Agreement reasonably
satisfactory in form and substance to the Agent.
SECTION 4.2. CONDITIONS PRECEDENT TO EACH LOAN AND EACH LETTER OF
CREDIT. The obligation of the Banks to make each Loan and of the Fronting Bank
to issue each Letter of Credit, including the initial Loan and the initial
Letter of Credit, is subject to the following conditions precedent:
(a) Notice. The Agent shall have received a notice with
respect to such borrowing or issuance, as the case may be, as required
by Section 2.
(b) Representations and Warranties. All representations and
warranties contained in this Agreement and the other Loan Documents or
otherwise made in writing in connection herewith or therewith shall be
true and correct in all material respects on and as of the date of each
Borrowing or the issuance of each Letter of Credit hereunder with the
same effect as if made on and as of such date except to the extent such
representations and warranties expressly relate to an earlier date.
(c) No Default. On the date of each Borrowing hereunder or the
issuance of each Letter of Credit, the Borrower and Guarantors shall be
in compliance with all of the terms and provisions set forth herein to
be observed or performed and no Event of Default or event which upon
notice or lapse of time or both would constitute an Event of Default
shall have occurred and be continuing.
(d) Orders. The Interim Order shall be in full force and
effect and shall not have been stayed, reversed, modified or amended in
any respect without the prior written consent of the Agent and the
Required Banks, provided, that at the time of the making of any Loan or
the issuance of any Letter of Credit the aggregate amount of either of
which, when added to the sum of the principal amount of all Loans then
outstanding and the Letter of Credit Outstandings, would exceed the
amount thereof which was authorized by the Bankruptcy Court in the
Interim Order (collectively, the "Additional Credit"), the Agent and
44
each of the Banks shall have received a certified copy of an order of
the Bankruptcy Court in substantially the form of Exhibit B-2 (the
"Final Order"), which, in any event, shall have been entered by the
Bankruptcy Court no later than 30 days after the entry of the Interim
Order, and at the time of the extension of any Additional Credit the
Final Order shall be in full force and effect, and shall not have been
stayed, reversed, modified or amended in any respect without the prior
written consent of the Agent and the Required Banks; and if either the
Interim Order or the Final Order is the subject of a pending appeal in
any respect, neither the making of the Loans nor the issuance of any
Letter of Credit nor the performance by the Borrower or any Guarantor
of any of their respective obligations under any of the Loan Documents
shall be the subject of a presently effective stay pending appeal.
(e) Payment of Fees. The Borrower shall have paid to the Agent
the then unpaid balance of all accrued and unpaid Fees then payable
under and pursuant to this Agreement and the letter referred to in
Section 2.18.
The request by the Borrower for, and the acceptance by the Borrower of, each
extension of credit hereunder shall be deemed to be a representation and
warranty by the Borrower that the conditions specified in this Section have been
satisfied or waived at that time.
SECTION 5. AFFIRMATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding (in a face amount in
excess of the amount of cash then held in the Letter of Credit Account, or in
excess of the face amount of back-to-back letters of credit delivered, in each
case pursuant to Section 2.2(b)), or any amount shall remain outstanding under
any Note or unpaid under this Agreement, the Borrower and each of the Guarantors
agree that, unless the Required Banks shall otherwise consent in writing, it
will:
SECTION 5.1. FINANCIAL STATEMENTS, REPORTS, ETC. In the case of the
Borrower and the Guarantors, deliver to the Agent and each of the Banks
(PROVIDED that the information and reports referred to in paragraphs (g) through
(k) of this Section shall be delivered solely to the Agent):
(a) within 90 days after the end of each fiscal year, the
Borrower's consolidated and consolidating balance sheet and related
statement of income and cash flows, showing the financial condition of
the Borrower and the Guarantors on a consolidated and consolidating
basis as of the close of such fiscal year and the results of their
respective operations during such year, the consolidated statement of
the Borrower to be audited for the Borrower and its consolidated
Subsidiaries by
45
independent public accountants of recognized national standing
acceptable to the Required Banks and accompanied by an opinion of such
accountants (which shall not be qualified in any material respect other
than with respect to the Cases), and the consolidating statement to be
subjected to the auditing procedures applied to such audit of the
consolidated statement, and to be certified by a Financial Officer of
the Borrower to the effect that such consolidated financial statements
fairly present the financial condition and results of operations of the
Borrower and the Guarantors on a consolidated basis in accordance with
GAAP consistently applied;
(b) within 45 days after the end of each of the first three
fiscal quarters and within 90 days after the end of the fourth fiscal
quarter of each fiscal year, the Borrower's consolidated and
consolidating balance sheets and related statements of income and cash
flows, showing the financial condition of the Borrower and the
Guarantors on a consolidated and consolidating basis as of the close of
such fiscal quarter and the results of their operations during such
fiscal quarter and the then elapsed portion of the fiscal year, each
certified by a Financial Officer as fairly presenting the financial
condition and results of operations of the Borrower and the Guarantors
on a consolidated and consolidating basis in accordance with GAAP
consistently applied, subject to normal year-end audit adjustments;
(c) concurrently with any delivery of financial statements
under (a) or (b) above, (i) a certificate of a Financial Officer,
certifying such statements (A) certifying that no Event of Default or
event which upon notice or lapse of time or both would constitute an
Event of Default has occurred, or, if such an Event of Default or event
has occurred, specifying the nature and extent thereof and any
corrective action taken or proposed to be taken with respect thereto
and (B) setting forth computations in reasonable detail satisfactory to
the Agent demonstrating compliance with the provisions of Sections 6.4
and 6.5 and (ii) a certificate (which certificate may be limited to
accounting matters and disclaim responsibility for legal
interpretations) of such accountants accompanying the audited
consolidated financial statements delivered under (a) above certifying
that, in the course of the regular audit of the business of the
Borrower and its consolidated Subsidiaries, such accountants have
obtained no knowledge that an Event of Default has occurred and is
continuing, or if, in the opinion of such accountants, an Event of
Default has occurred and is continuing, specifying the nature thereof
and all relevant facts with respect thereto;
(d) within thirty-five days of the end of each fiscal month
(commencing with the fiscal month ending on or about June 30, 1997),
the unaudited monthly cash flow reports of the
46
Borrower and the Guarantors on a consolidated basis and as of the close
of such fiscal month and the results of their operations during such
fiscal period and the then elapsed portion of the fiscal year, all
certified by a Financial Officer as fairly presenting the results of
operations of the Borrower and the Guarantors on a consolidated basis,
subject to normal year-end audit adjustments;
(e) as soon as possible, and in any event within 30 days
following the Closing Date, a pro forma statement of the Borrower's and
Guarantors' financial condition as of the Filing Date in detail
reasonably satisfactory to the Agent;
(f) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials
filed by it with the Securities and Exchange Commission, or any
governmental authority succeeding to any of or all the functions of
said commission, or with any national securities exchange, as the case
may be;
(g) as soon as available and in any event (A) within 30 days
after the Borrower or any of its ERISA Affiliates knows or has reason
to know that any Termination Event described in clause (i) of the
definition of Termination Event with respect to any Single Employer
Plan of the Borrower or such ERISA Affiliate has occurred and (B)
within 10 days after the Borrower or any of its ERISA Affiliates knows
or has reason to know that any other Termination Event with respect to
any such Plan has occurred, a statement of a Financial Officer of the
Borrower describing such Termination Event and the action, if any,
which the Borrower or such ERISA Affiliate proposes to take with
respect thereto;
(h) promptly and in any event within 10 days after receipt
thereof by the Borrower or any of its ERISA Affiliates from the PBGC
copies of each notice received by the Borrower or any such ERISA
Affiliate of the PBGC's intention to terminate any Single Employer Plan
of the Borrower or such ERISA Affiliate or to have a trustee appointed
to administer any such Plan;
(i) promptly and in any event within 30 days after the filing
thereof with the Internal Revenue Service, copies of each Schedule B
(Actuarial Information) to the annual report (Form 5500 Series) with
respect to each Single Employer Plan of the Borrower or any of its
ERISA Affiliates;
(j) within 10 days after notice is given or required to be
given to the PBGC under Section 302(f)(4)(A) of ERISA of the failure of
the Borrower or any of its ERISA Affiliates to make timely payments to
a Plan, a copy of any such notice filed and a statement of a Financial
Officer of the Borrower setting forth
47
(A) sufficient information necessary to determine the amount of the
lien under Section 302(f)(3), (B) the reason for the failure to make
the required payments and (C) the action, if any, which the Borrower or
any of its ERISA Affiliates proposed to take with respect thereto;
(k) promptly and in any event within 10 days after receipt
thereof by the Borrower or any ERISA Affiliate from a Multiemployer
Plan sponsor, a copy of each notice received by the Borrower or any
ERISA Affiliate concerning (A) the imposition of Withdrawal Liability
by a Multiemployer Plan, (B) the determination that a Multiemployer
Plan is, or is expected to be, in reorganization within the meaning of
Title IV of ERISA, (C) the termination of a Multiemployer Plan within
the meaning of Title IV of ERISA, or (D) the amount of liability
incurred, or which may be incurred, by the Borrower or any ERISA
Affiliate in connection with any event described in clause (A), (B) or
(C) above;
(l) promptly, from time to time, such other information
regarding the operations, business affairs and financial condition of
the Borrower or any Guarantor, or compliance with the terms of any
material loan or financing agreements as the Agent or any Bank may
reasonably request; and
(m) furnish to the Agent and its counsel promptly after the
same is available, copies of all pleadings, motions, applications,
judicial information, financial information and other documents filed
by or on behalf of the Borrower or any of the Guarantors with the
Bankruptcy Court in the Cases, or distributed by or on behalf of the
Borrower or any of the Guarantors to any official committee appointed
in the Cases.
SECTION 5.2. CORPORATE EXISTENCE. Do or cause to be done and cause each
of the Guarantors to do or cause to be done all things necessary to preserve,
renew and keep in full force and effect its corporate existence, material
rights, licenses, permits and franchises and comply in all material respects
with all laws and regulations applicable to it, provided, however, nothing in
this provision will restrict the Subsidiary Guarantors from entering into a
transaction permitted by Section 6.2.
SECTION 5.3. INSURANCE. (a) Keep its insurable properties insured at
all times, against such risks, including fire and other risks insured against by
extended coverage, as is customary with companies of the same or similar size in
the same or similar businesses; and maintain in full force and effect public
liability insurance against claims for personal injury or death or property
damage occurring upon, in, about or in connection with the use of any properties
owned, occupied or controlled by the Borrower or any Guarantor, as the case may
be, in such amounts and with such deductibles as are customary with companies of
the same or similar
48
size in the same or similar businesses and in the same geographic area; and (b)
maintain such other insurance or self insurance as may be required by law.
SECTION 5.4. OBLIGATIONS AND TAXES. With respect to the Borrower and
each Guarantor, pay all its material obligations (arising after the Filing Date
in the case of the Borrower, FCI and Holdings and whenever arising in the case
of the Subsidiary Guarantors) promptly and in accordance with their terms and
pay and discharge promptly all material taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits or in respect of
its property (arising after the Filing Date in the case of the Borrower, FCI and
Holdings and whenever arising in the case of the Subsidiary Guarantors), before
the same shall become in default, as well as all material lawful claims for
labor, materials and supplies or otherwise (arising after the Filing Date in the
case of the Borrower, FCI and Holdings and whenever arising in the case of the
Subsidiary Guarantors), which, if unpaid, might become a Lien or charge upon
such properties or any part thereof; provided, however, that the Borrower and
each Guarantor shall not be required to pay and discharge or to cause to be paid
and discharged any such obligation, tax, assessment, charge, levy or claim so
long as the validity or amount thereof shall be contested in good faith by
appropriate proceedings (if the Borrower and the Guarantors shall have set aside
on their books adequate reserves therefor). For purposes of this Section 5.4,
"material obligations" means obligations, the breach of which would have a
material adverse effect on the business or financial condition of the Borrower
and its Subsidiaries taken as a whole.
SECTION 5.5. NOTICE OF EVENT OF DEFAULT, ETC. Promptly give to the
Agent notice in writing of any Event of Default or the occurrence of any event
or circumstance which with the passage of time or giving of notice or both would
constitute an Event of Default.
SECTION 5.6. ACCESS TO BOOKS AND RECORDS. Maintain or cause to be
maintained at all times true and complete books and records of the financial
operations of the Borrower and the Guarantors; and provide the Agent and its
representatives access to all such books and records during regular business
hours, in order that the Agent may examine and make abstracts from such books,
accounts, records and other papers for the purpose of verifying the accuracy of
the various reports delivered by the Borrower or the Guarantors to the Agent or
the Banks pursuant to this Agreement or for otherwise ascertaining compliance
with this Agreement; and at any reasonable time and from time to time during
regular business hours, upon reasonable notice, permit the Agent and any agents
or representatives (including, without limitation, appraisers) thereof to visit
the properties of the Borrower and the Guarantors and to conduct examinations of
and to monitor the Collateral held by the Agent.
49
SECTION 5.7. BUSINESS PLAN. As soon as practicable, furnish to the
Agent the Borrower's business plan, and make its senior officers available to
discuss the same with the Agent upon the Agent's reasonable request.
SECTION 5.8. MAINTENANCE OF CONCENTRATION ACCOUNTS. By no later than 25
days following the Closing Date, the Borrower and the Guarantors, shall have
established, and shall thereafter maintain, with the Agent an account or
accounts to be used by the Borrower and the Guarantors as their principal
concentration accounts, and the Borrower shall cause the Guarantors to transfer
to such concentration account or accounts funds maintained in their operating
accounts at such times and in such amounts as may be satisfactory to the Agent.
SECTION 5.9. SUBSIDIARY GUARANTOR FILINGS. In the event any of the
Subsidiary Guarantors becomes the subject of a case under the Bankruptcy Code,
the Borrower shall provide Chase, and shall cause such Subsidiary Guarantor to
provide Chase, with the opportunity to provide debtor-in-possession financing to
such Subsidiary Guarantor in such case and the opportunity to meet any other
debtor-in-possession financing proposal that such Subsidiary Guarantors may
receive (and, to that end, shall furnish to Chase, and shall cause such
Subsidiary Guarantor to furnish to Chase, copies of any such proposal promptly
upon receipt).
SECTION 6. NEGATIVE COVENANTS
From the date hereof and for so long as any Commitment shall be in
effect or any Letter of Credit shall remain outstanding (in a face amount in
excess of the amount of cash then held in the Letter of Credit Account, or in
excess of the face amount of back-to-back letters of credit delivered, in each
case pursuant to Section 2.2(b)) or any amount shall remain outstanding under
any Note or unpaid under this Agreement, unless the Required Banks shall
otherwise consent in writing, the Borrower and each of the Guarantors will not
(and will not apply to the Bankruptcy Court for authority to):
SECTION 6.1. LIENS. Incur, create, assume or suffer to exist any Lien
on any asset of the Borrower or the Guarantors, now owned or hereafter acquired
by the Borrower or any of such Guarantors, other than (i) Liens which were
existing on the Filing Date as reflected on Schedule 3.6 hereto (it being
understood that the Liens granted pursuant to the Existing Agreements shall be
released in a manner satisfactory to the Agent at the time of the initial
extension of credit hereunder) and with respect to Liens existing on the
property of the Subsidiary Guarantors (other than the First-Tier Subsidiaries)
extensions, renewals, refinancings or replacements thereof; provided, however,
that no such extensions, renewals, refinancings or replacements will extend to
or cover any property not theretofore subject to the Lien being extended,
renewed, refinanced or replaced; and provided further that the Subsidiary
Guarantors (other than First-Tier Subsidiaries) may
50
substitute for the property subject to any such Lien other property with
substantially the same Fair Market Value and not otherwise subject to the Lien
of a Loan Document, so long as (1) the property for which such substitution is
made is fully and effectively released from such Lien and (2) the property being
subjected to such Lien is held (x) by a Subsidiary Guarantor (other than a
First-Tier Subsidiary) that is a member of the same Significant Subsidiary Group
as the Subsidiary Guarantor holding the property being released or (y) if the
Subsidiary Guarantor holding the property being released is not a member of a
Significant Subsidiary Group, by another Subsidiary Guarantor that is not a
member of a Significant Subsidiary Group; (ii) Permitted Liens; (iii) Liens in
favor of the Agent and the Banks; (iv) unperfected Liens on property of the
Subsidiary Guarantors (other than First-Tier Subsidiaries) in favor of (1) other
Subsidiary Guarantors (other than First-Tier Subsidiaries) arising in connection
with intercompany transactions among Subsidiary Guarantors that (x) are members
of the same Significant Subsidiary Group or (y) are not members of any
Significant Subsidiary Group; (v) Liens upon or on any assets acquired directly
or indirectly as permitted by Section 6.10(ix), provided such Liens exist at the
time such assets are so acquired and that no such Lien shall extend to or cover
any property other than such assets; and (vi) Liens upon or on any other assets
of the Subsidiary Guarantors securing obligations in an aggregate amount not to
exceed $5,000,000 at any time outstanding.
SECTION 6.2. MERGER, ETC. Merge with or into or consolidate with or
into, or convey, transfer or otherwise dispose of (whether in one transaction or
in a series of related transactions) all or substantially all of its assets
(whether now owned or hereafter acquired) to, any Person, except that any
Subsidiary Guarantor (other than First-Tier Subsidiaries) may (i) merge or
consolidate with or transfer all or substantially all of its assets to any other
Subsidiary Guarantor within the same Significant Subsidiary Group or, if such
Subsidiary Guarantor is not a member of any Significant Subsidiary Group, with
any other Subsidiary Guarantor which is not a member of any Significant
Subsidiary Group and (ii) acquire by merger the assets of any Person to the
extent permitted by Section 6.10(ix); provided no such merger, consolidation,
transfer or acquisition involving a Subsidiary Guarantor results in any loss of
ownership by the Borrower of such Subsidiary Guarantor.
SECTION 6.3. INDEBTEDNESS. Contract, create, incur, assume or suffer to
exist any Indebtedness, except for (i) Indebtedness under this Agreement, (ii)
Indebtedness incurred prior to the Filing Date (including existing Capitalized
Leases), (iii) Indebtedness incurred by Subsidiary Guarantors subsequent to the
Filing Date secured by purchase money Liens (exclusive of Capex Financings) in
an aggregate amount not to exceed $5,000,000, (iv) Capex Financings in an
aggregate amount not to exceed $15,000,000 during the fiscal quarter ending June
30, 1997, $10,000,000 during the fiscal quarter ending September 30, 1997,
$10,000,000 during the fiscal quarter
51
ending December 31, 1997, $1,000,000 during the fiscal quarter ending March 31,
1998 or $1,000,000 during the fiscal quarter ending June 30, 1998 (provided that
if the aggregate amount of Capex Financings that are incurred during any of the
fiscal quarters described in this clause is less than the permitted amount
thereof for such fiscal quarter, 100% of the unused portion thereof may be
carried over to and incurred in the next succeeding fiscal quarter in addition
to the amount that is otherwise permitted to be incurred in such succeeding
fiscal quarter), (v) Indebtedness arising from Investments among the Borrower
and the Guarantors that are permitted hereunder, (vi) Indebtedness owed to Chase
or any of its banking Affiliates in respect of any overdrafts and related
liabilities arising from treasury, depository and cash management services or in
connection with any automated clearing house transfers of funds, provided that
the aggregate principal amount of such Indebtedness shall not exceed $30,000,000
at any one time outstanding, (vii) all Indebtedness necessary to permit the
continuation of the Existing Hedge Agreement so long as Citibank, N.A. is a Bank
hereunder and the aggregate notional amount thereof shall not exceed
$300,000,000, or if Citibank, N.A. does not become a Bank hereunder and one or
more of the Banks (including Chase) determines, in its sole discretion, to enter
into a new interest rate agreement or agreements with the Borrower the
obligations of the Borrower in respect of which shall be in substitution for the
Borrower's obligations under the Existing Hedge Agreement (each such new
interest rate agreement, a "Bank Hedge Agreement"), all Indebtedness the Bank
Hedge Agreements provided that the aggregate notional amount thereof shall not
exceed $300,000,000; and (viii) in the case of the Subsidiary Guarantors (other
than First-Tier Subsidiaries):
(A) all interest, fees, reimbursement and indemnification
amounts, and all other accruals and obligations under the Indebtedness described
in Section 6.3(ii) and renewals, extensions, modifications or refinancings of
such Indebtedness, provided such renewals, extensions, modifications and
refinancings (1) do not increase the outstanding principal amount of the
Indebtedness being extended, modified or refinanced, or shorten the maturity
thereof to a date earlier than one year after the Termination Date, and (2) are
otherwise on terms consistent with prudent business practice and then prevailing
market practices and prices in the applicable geographic area;
(B) additional unsecured Indebtedness not otherwise permitted
by this Section 6.3 aggregating not more than $10,000,000 in principal amount at
any one time outstanding;
(C) obligations under performance or surety bonds that
constitute Indebtedness (if any) incurred in the ordinary course of business,
provided, that the aggregate maximum amount available to be paid or drawn under
such performance or surety bonds that are
52
not supported by Letters of Credit shall not exceed $10,000,000 at any time
outstanding; and
(D) Indebtedness incurred or assumed in any transaction
permitted under Section 6.10(ix).
SECTION 6.4. CAPITAL EXPENDITURES. Make Capital Expenditures (the
amount of which shall be deemed to include, for purposes of this Section, the
amount of any Investments permitted by Section 6.10(ix)) except for Capital
Expenditures in an aggregate amount not to exceed (i) $15,000,000 during the
fiscal quarter ending June 30, 1997 or (ii) $20,000,000 during each fiscal
quarter thereafter, PROVIDED that if the amount that is expended for Capital
Expenditures during any of the fiscal quarters described in clauses (i) or (ii)
of this Section is less than the permitted amount thereof for such fiscal
quarter, 100% of the unused portion thereof may be carried over to and expended
in the next succeeding fiscal quarter in addition to the amount that is
otherwise permitted to be expended in such succeeding fiscal quarter.
SECTION 6.5. EBITDA. Permit EBITDA for each month ending on the dates
listed below to be less than the amount specified opposite such month: EBITDA
Month Ending
June 30, 1997 $16,270,000
July 31, 1997 12,592,000
August 31, 1997 13,564,000
September 30, 1997 16,154,000
October 31, 1997 10,664,000
November 30, 1997 l2,014,000
December 31, 1997 16,222,000
January 31, 1998 6,726,000
February 28, 1998 8,064,000
March 31, 1998 18,252,000
April 30, 1998 11,301,000
May 31, 1998 11,381,000
June 30, 1998 17,440,000
SECTION 6.6. GUARANTEES AND OTHER LIABILITIES. Purchase or repurchase
(or agree, contingently or otherwise, so to do) the Indebtedness of, or assume,
guarantee (directly or indirectly or by an instrument having the effect of
assuring another's payment or performance of any obligation or capability of so
doing, or otherwise), endorse or otherwise become liable, directly or
indirectly, in connection with the obligations, stock or dividends of any
Person, except (i) for any guaranty of Indebtedness or other obligations of the
Borrower or any Guarantor if the Person issuing such guaranty could have
incurred such Indebtedness or obligations under this Agreement, (ii) by
endorsement of negotiable instruments
53
for deposit or collection in the ordinary course of business, and (iii) as
otherwise permitted under this Agreement.
SECTION 6.7. CHAPTER 11 CLAIMS. Incur, create, assume, suffer to exist
or permit any other Super-Priority Claim which is pari passu with or senior to
the claims of the Agent and the Banks against the Borrower and the Guarantors
hereunder, except for the Carve-Out.
SECTION 6.8. DIVIDENDS; CAPITAL STOCK. Declare or pay, directly or
indirectly, any dividends or make any other distribution or payment, whether in
cash, property, securities or a combination thereof, with respect to (whether by
reduction of capital or otherwise) any shares of capital stock (or any options,
warrants, rights or other equity securities or agreements relating to any
capital stock), or set apart any sum for the aforesaid purposes, provided that
(i) any Subsidiary Guarantor may pay dividends or make any other such
distribution or payments to the Borrower or to any other Subsidiary Guarantor
and (ii) Subsidiary Guarantors may pay cash dividends in an aggregate amount not
to exceed $2,000,000 in any fiscal year, to the holders of minority interests in
such Subsidiary Guarantors ratably in accordance with the ownership interests of
such holders in such Subsidiary Guarantors.
SECTION 6.9. TRANSACTIONS WITH AFFILIATES. Sell or transfer any
property or assets to, or otherwise engage in any other transactions with, any
of its Affiliates (other than the Borrower and the Guarantors), other than in
the ordinary course of business at prices and on terms and conditions not less
favorable to the Borrower or such Guarantor than could be obtained on an
arm's-length basis from unrelated third parties.
SECTION 6.10. INVESTMENTS, LOANS AND ADVANCES. Purchase, hold or
acquire any capital stock, evidences of indebtedness or other securities of,
make or permit to exist any loans or advances to, or make or permit to exist any
investment in, any other Person (all of the foregoing, "Investments"), except
for (i) ownership by the Borrower or the Guarantors of the capital stock of each
of the Subsidiaries listed on Schedule 3.5, (ii) Permitted Investments, (iii)
advances and loans among the Borrower and the Guarantors in the ordinary course,
and capital contributions in the ordinary course among Subsidiary Guarantors in
the same Significant Subsidiary Group, (iv) Investments by Subsidiary Guarantors
(other than First-Tier Subsidiaries) made pursuant to joint venture or franchise
arrangements entered into in accordance with prudent business practice and in an
aggregate amount of not more than $5,000,000 at any time outstanding, (v)
non-cash consideration received from any sale, lease, transfer or other
disposition of assets permitted under Section 6.11, (vi) loans or advances to
employees made in the ordinary course of business consistent with prudent
business practice and in an aggregate amount not to exceed $2,500,000 at any
time outstanding, (vii) loans or advances to or Investments in Liquor License
Affiliates to the extent necessary to enable Liquor
54
License Affiliates to pay taxes, fees and other expenses as and when required to
maintain the liquor licenses held by them in an aggregate amount not to exceed
$100,000, (viii) additional Investments not otherwise permitted by this Section
6.10, in an aggregate amount not to exceed $3,000,000, (ix) Investments in new
operations, properties or franchises through the purchase or other acquisition
of assets of any Person or stock of new Subsidiaries where the Borrower or the
Subsidiary Guarantor making such purchase or acquisition determines in its
prudent business judgment that such purchase or acquisition would be beneficial
in lieu of making Capital Expenditures, and (x) Investments by the Borrower in
the Unrestricted Subsidiary in an aggregate amount not to exceed $75,000,000 at
any time outstanding. Ordinary course trade payables owed to the Borrower or any
of the Guarantors shall not be deemed to be Investments for purposes of this
Agreement.
SECTION 6.11. DISPOSITION OF ASSETS. Sell or otherwise dispose of any
assets (including, without limitation, the capital stock of any Subsidiary)
except for (i) sales of inventory, fixtures and equipment in the ordinary course
of business, (ii) dispositions in the ordinary course of business consistent
with past practice of other properties no longer used or useful in the business
of the Borrower and the Subsidiary Guarantors, provided that all such
dispositions shall be for Fair Market Value and provided further that the
aggregate Fair Market Value of all such other properties disposed of in any
fiscal year shall not exceed $5,000,000, (iii) exchanges of real property,
fixtures and improvements for other real property, fixtures and improvements,
provided (A) each such exchange is for Fair Market Value, (B) any consideration
(other than real property, fixtures and improvements) received by the Borrower
and the Subsidiary Guarantors in connection with such exchanges is received by
the Borrower and the Subsidiary Guarantors in cash, (iv) intercompany
transactions among Subsidiary Guarantors that (x) are members of the same
Significant Subsidiary Group or (y) are not members of any Significant
Subsidiary Group, (v) dispositions from time to time in an aggregate amount not
to exceed $5,000,000 of all or any portion of the assets constituting any of the
restaurants of Denny's Holdings and its Subsidiaries (other than sales (but not
licenses) of Trademark Collateral (as defined in the Trademark Security
Agreement referred to in Section 4.1(d)(iii) hereof)) for a consideration
determined by the board of directors of the Subsidiaries that own such assets
(which board of directors shall include members of senior management of the
Borrower) to be equal to the Fair Market Value of the assets disposed of, and
(vi) disposition of underperforming restaurants (as determined in the good faith
judgment of the Borrower), provided, that such dispositions shall be for an
amount not less than Fair Market Value and provided further that the aggregate
Fair Market Value of all such assets disposed of shall not exceed $8,000,000,
provided, as to clauses (iii), (v) and (vi) of this Section 6.11 that after
giving effect to such transaction no Event of Default or event which with the
giving of notice or lapse of
55
time, or both, would become an Event of Default shall have occurred and be
continuing.
SECTION 6.12. NATURE OF BUSINESS. Modify or alter in any material
manner the nature and type of its business as conducted at or prior to the
Filing Date or the manner in which such business is conducted (except as
required by the Bankruptcy Code).
SECTION 7. EVENTS OF DEFAULT
SECTION 7.1. EVENTS OF DEFAULT. In the case of the happening of any of
the following events and the continuance thereof beyond the applicable period of
grace if any (each, an "Event of Default"):
(a) any material representation or warranty made by the
Borrower or any Guarantor in this Agreement or in any Loan Document or in
connection with this Agreement or with the execution and delivery of the Notes
or the credit extensions hereunder or any material statement or representation
made in any report, financial statement, certificate or other document furnished
by the Borrower or any Guarantors to the Banks under or in connection with this
Agreement, shall prove to have been false or misleading in any material respect
when made or delivered; or
(b) default shall be made in the payment of any (i) Fees or
interest on the Loans when due, and such default shall continue unremedied for
more than two (2) Business Days or (ii) principal of the Loans or other amounts
payable by the Borrower hereunder (including, without limitation, reimbursement
obligations or cash collateralization in respect of Letters of Credit), when and
as the same shall become due and payable, whether at the due date thereof
(including the Prepayment Date) or at a date fixed for prepayment thereof or by
acceleration thereof or otherwise; or
(c) default shall be made by the Borrower or any Guarantor in
the due observance or performance of any covenant, condition or agreement
contained in Section 6 hereof; or
(d) default shall be made by the Borrower or any Guarantor in
the due observance or performance of any other covenant, condition or agreement
to be observed or performed pursuant to the terms of this Agreement or any of
the other Loan Documents and such default shall continue unremedied for more
than ten (10) days; or
(e) either of the Cases of the Borrower or FCI shall be
dismissed or converted to a case under Chapter 7 of the Bankruptcy Code; a
trustee under Chapter 7 or Chapter 11 of the Bankruptcy Code shall be appointed
in any of the Cases and the order appointing such trustee shall not be reversed
or vacated within 30 days after the entry thereof; or an application shall be
filed by the Borrower or any Guarantor for the approval of any other
Super-Priority Claim
56
(other than the Carve-Out) in the Cases which is pari passu with or senior to
the claims of the Agent and the Banks against the Borrower or any Guarantor
hereunder, or there shall arise or be granted any such pari passu or senior
Super-Priority Claim; or
(f) the Bankruptcy Court shall enter an order or orders
granting relief from the automatic stay applicable under Section 362 of the
Bankruptcy Code to the holder or holders of any security interest to permit
foreclosure (or the granting of a deed in lieu of foreclosure or the like) on
any assets of the Borrower, Holdings or FCI which have a value in excess of
$1,000,000 in the aggregate; or
(g) the Proposed Plan shall be (x) amended or modified in any
material respect without the prior written consent of the Required Banks or (y)
withdrawn; or the Court shall decline to confirm the Proposed Plan; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) relief in respect of any of the
Subsidiary Guarantors, or of a substantial part of the property or assets of any
of the Subsidiary Guarantors, under the Bankruptcy Code or any other Federal or
state bankruptcy, insolvency, receivership or similar law, (ii) the appointment
of a receiver, trustee, custodian, sequestrator, conservator or similar official
for any of the Subsidiary Guarantors or for a substantial part of the property
or assets of any of the Subsidiary Guarantors or (iii) the winding-up or
liquidation of any of the Subsidiary Guarantors; and such proceeding or petition
shall continue undismissed for a period of 30 days or an order or decree
approving or ordering any of the foregoing shall be entered; or
(i) any of the Subsidiary Guarantors shall (i) voluntarily
commence any proceeding or file any petition seeking relief under the Bankruptcy
Code or any other Federal or state bankruptcy, insolvency, receivership or
similar law, (ii) consent to the institution of, or fail to contest in a timely
and appropriate manner, any proceeding or the filing of any petition described
in subparagraph (h) above, (iii) apply for or consent to the appointment of a
receiver, trustee, custodian, sequestrator, conservator or similar official for
any of the Subsidiary Guarantors or for a substantial part of the property or
assets of any of the Subsidiary Guarantors, (iv) file an answer admitting the
material allegations of a petition filed against it in any such proceeding, (v)
make a general assignment for the benefit of creditors, (vi) become unable,
admit in writing its inability or fail generally to pay its debts as they become
due or (vii) take any action for the purpose of effecting any of the foregoing;
or
(j) any Person or group shall acquire for the first time the
ownership of, or the direct or indirect power to vote, more than 30% of FCI's
outstanding voting stock; or
57
(k) any material provision of any Loan Document shall, for any
reason, cease to be valid and binding on the Borrower or any of the Guarantors,
or the Borrower or any of the Guarantors shall so assert in any pleading filed
in any court; or
(l) an order of the Bankruptcy Court shall be entered in any
of the Cases of the Borrower or any of the Guarantors appointing an examiner
with enlarged powers relating to the operation of the business (powers beyond
those set forth in Section 1106(a)(3) and (4) of the Bankruptcy Code) under
Section 1106(b) of the Bankruptcy Code and such order shall not be reversed or
vacated within 30 days after the entry thereof; or
(m) an order of the Bankruptcy Court shall be entered
reversing, amending, supplementing, staying for a period in excess of 10 days,
vacating or otherwise modifying either of the Orders (without the prior written
consent of the Agent and the Required Banks); or
(n) any judgment or order as to a liability or debt for the
payment of money (arising after the Filing Date in the case of the Borrower or
FCI and whenever arising in the case of the Subsidiary Guarantors) in excess of
$5,000,000 shall be rendered against the Borrower or any of the Guarantors and
the enforcement thereof shall not have been stayed; or
(o) any non-monetary judgment or order with respect to a
post-petition event shall be rendered against the Borrower or FCI, or any
non-monetary judgment or order shall be rendered against any of the Subsidiary
Guarantors, which does or would reasonably be expected to (i) cause a material
adverse change in the financial condition, business, prospects, operations or
assets of the Borrower and the Guarantors taken as a whole on a consolidated
basis, (ii) have a material adverse effect on the ability of the Borrower or any
of the Guarantors to perform their respective obligations under any Loan
Document, or (iii) have a material adverse effect on the rights and remedies of
the Agent or any Bank under any Loan Document, and there shall be any period of
10 consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect; or
(p) the Borrower, Holdings or FCI shall make any Pre-Petition
Payment other than (x) as permitted by orders of the Bankruptcy Court reasonably
satisfactory in form and substance to the Agent referred to in Section 4.1(i)
and (y) in respect of the refinancing and replacement of extensions of credit
under the Existing Agreements that is contemplated hereby; or
(q) any Termination Event described in clauses (iii) or (iv)
of the definition of such term shall have occurred and shall continue unremedied
for more than 10 days and the sum (determined as
58
of the date of occurrence of such Termination Event) of the Insufficiency of the
Plan in respect of which such Termination Event shall have occurred and be
continuing and the Insufficiency of any and all other Plans with respect to
which such a Termination Event (described in such clauses (iii) or (iv)) shall
have occurred and then exist is equal to or greater than $5,000,000; or
(r) (i) the Borrower or any ERISA Affiliate thereof shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan, (ii) the Borrower or such ERISA
Affiliate does not have reasonable grounds to contest such Withdrawal Liability
and is not in fact contesting such Withdrawal Liability in a timely and
appropriate manner, and (iii) the amount of such Withdrawal Liability specified
in such notice, when aggregated with all other amounts required to be paid to
Multiemployer Plans in connection with Withdrawal Liabilities (determined as of
the date of such notification), exceeds $5,000,000 or requires payments
exceeding $500,000 per annum in excess of the annual payments made with respect
to such MultiEmployer Plans by the Borrower or such ERISA Affiliate for the plan
year immediately preceding the plan year in which such notification is received;
or
(s) the Borrower or any ERISA Affiliate thereof shall have
been notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of Title IV
of ERISA, if as a result of such reorganization or termination the aggregate
annual contributions of the Borrower and its ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated have
been or will be increased over the amounts contributed to such Multiemployer
Plans for the plan years that include the date hereof by an amount exceeding
$5,000,000; or
(t) the Borrower or any ERISA Affiliate shall have committed a
failure described in Section 302(f)(1) of ERISA (other than the failure to make
any contribution accrued and unpaid as of the Filing Date) and the amount
determined under Section 302(f)(3) of ERISA is equal to or greater than
$5,000,000; or
(u) it shall be determined (whether by the Bankruptcy Court or
by any other judicial or administrative forum) that the Borrower or any
Guarantor is liable for the payment of claims arising out of any failure to
comply (or to have complied) with applicable environmental laws or regulations
the payment of which will have a material adverse effect on the financial
condition, business, properties, operations or assets of the Borrower or the
Guarantors, taken as a whole;
then, and in every such event and at any time thereafter during the continuance
of such event, and without further order of or application to the Bankruptcy
Court, the Agent may, and at the request of the Required Banks, shall, by notice
to the Borrower (with
59
a copy to counsel for the Official Creditors' Committee appointed in the Cases
and to the United States Trustee for the District of South Carolina), take one
or more of the following actions, at the same or different times (provided, that
with respect to clause (iv) below insofar as accounts of the Borrower, Holdings
or FCI are concerned and the enforcement of Liens against the Borrower, Holdings
or FCI or other remedies with respect to the Collateral provided by the
Borrower, Holdings or FCI under clause (v) below, the Agent shall provide the
Borrower (with a copy to counsel for the Official Creditors' Committee appointed
in the Cases and to the United States Trustee for the District of South
Carolina) with five (5) Business Days' written notice prior to taking the action
contemplated thereby and provided, further, that upon receipt of notice referred
to in the immediately preceding clause with respect to the accounts referred to
in clause (iv) below, the Borrower may continue to make ordinary course
disbursements from such accounts (other than the Letter of Credit Account) but
may not withdraw or disburse any other amounts from such accounts): (i)
terminate forthwith the Total Commitment; (ii) declare the Loans then
outstanding to be forthwith due and payable, whereupon the principal of the
Loans together with accrued interest thereon and any unpaid accrued Fees and all
other liabilities of the Borrower accrued hereunder and under any other Loan
Document, shall become forthwith due and payable, without presentment, demand,
protest or any other notice of any kind, all of which are hereby expressly
waived by the Borrower and the Guarantors, anything contained herein or in any
other Loan Document to the contrary notwithstanding; (iii) require the Borrower
and the Guarantors upon demand to forthwith deposit in the Letter of Credit
Account cash in an amount equal to the sum of 105% of the then outstanding
Letters of Credit and to the extent the Borrower and the Guarantors shall fail
to furnish such funds as demanded by the Agent, the Agent shall be authorized to
debit the accounts of the Borrower and the Guarantors maintained with the Agent
in such amount; (iv) set-off amounts in the Letter of Credit Account or any
other accounts maintained with the Agent and apply such amounts to the
obligations of the Borrower and the Guarantors hereunder and in the other Loan
Documents; and (v) exercise any and all remedies under the Loan Documents and
under applicable law available to the Agent and the Banks.
SECTION 8. THE AGENT
SECTION 8.1. ADMINISTRATION BY AGENT. The general administration of the
Loan Documents shall be by the Agent. Each Bank hereby irrevocably authorizes
the Agent, at its discretion, to take or refrain from taking such actions as
agent on its behalf and to exercise or refrain from exercising such powers under
the Loan Documents and the Notes as are delegated by the terms hereof or
thereof, as appropriate, together with all powers reasonably incidental thereto
(including the release of Collateral in connection with any transaction that is
expressly permitted by the Loan Documents).
60
The Agent shall have no duties or responsibilities except as set forth in this
Agreement and the remaining Loan Documents.
SECTION 8.2. ADVANCES AND PAYMENTS
(a) On the date of each Loan, the Agent shall be authorized
(but not obligated) to advance, for the account of each of the Banks, the amount
of the Loan to be made by it in accordance with its Commitment hereunder. Should
the Agent do so, each of the Banks agrees forthwith to reimburse the Agent in
immediately available funds for the amount so advanced on its behalf by the
Agent, together with interest at the Federal Funds Effective Rate if not so
reimbursed on the date due from and including such date but not including the
date of reimbursement.
(b) Any amounts received by the Agent in connection with this
Agreement or the Notes (other than amounts to which the Agent is entitled
pursuant to Sections 2.18, 8.6, 10.5 and 10.6), the application of which is not
otherwise provided for in this Agreement shall be applied, first, in accordance
with each Bank's Commitment Percentage to pay accrued but unpaid Commitment Fees
or Letter of Credit Fees, and second, in accordance with each Bank's Commitment
Percentage to pay accrued but unpaid interest and the principal balance
outstanding on each Note and all unreimbursed Letter of Credit drawings. All
amounts to be paid to a Bank by the Agent shall be credited to that Bank, after
collection by the Agent, in immediately available funds either by wire transfer
or deposit in that Bank's correspondent account with the Agent, as such Bank and
the Agent shall from time to time agree.
SECTION 8.3. SHARING OF SETOFFS. Each Bank agrees that if it shall,
through the exercise of a right of banker's lien, setoff or counterclaim against
the Borrower, including, but not limited to, a secured claim under Section 506
of the Bankruptcy Code or other security or interest arising from, or in lieu
of, such secured claim and received by such Bank under any applicable
bankruptcy, insolvency or other similar law, or otherwise, obtain payment in
respect of its Loans as a result of which the unpaid portion of its Loans is
proportionately less than the unpaid portion of the Loans of any other Bank (a)
it shall promptly purchase at par (and shall be deemed to have thereupon
purchased) from such other Bank a participation in the Loans of such other Bank,
so that the aggregate unpaid principal amount of each Bank's Loans and its
participation in Loans of the other Banks shall be in the same proportion to the
aggregate unpaid principal amount of all Loans then outstanding as the principal
amount of its Loans prior to the obtaining of such payment was to the principal
amount of all Loans outstanding prior to the obtaining of such payment and (b)
such other adjustments shall be made from time to time as shall be equitable to
ensure that the Banks share such payment pro-rata, provided that if any such
non-pro-rata payment is thereafter recovered or otherwise set aside such
purchase of participations shall be rescinded (without interest). The Borrower
61
expressly consents to the foregoing arrangements and agrees that any Bank
holding (or deemed to be holding) a participation in a Loan may exercise any and
all rights of banker's lien, setoff (in each case, subject to the same notice
requirements as pertain to clause (iv) of the remedial provisions of Section
7.1) or counterclaim with respect to any and all moneys owing by the Borrower to
such Bank as fully as if such Bank held a Note and was the original obligee
thereon, in the amount of such participation.
SECTION 8.4. AGREEMENT OF REQUIRED BANKS. Upon any occasion requiring
or permitting an approval, consent, waiver, election or other action on the part
of the Required Banks, action shall be taken by the Agent for and on behalf or
for the benefit of all Banks upon the direction of the Required Banks, and any
such action shall be binding on all Banks. No amendment, modification, consent,
or waiver shall be effective except in accordance with the provisions of Section
10.10.
SECTION 8.5. LIABILITY OF AGENT.
(a) The Agent when acting on behalf of the Banks, may execute
any of its respective duties under this Agreement by or through any of its
respective officers, agents, and employees, and neither the Agent nor its
directors, officers, agents, employees or Affiliates shall be liable to the
Banks or any of them for any action taken or omitted to be taken in good faith,
or be responsible to the Banks or to any of them for the consequences of any
oversight or error of judgment, or for any loss, unless the same shall happen
through its gross negligence or willful misconduct. The Agent and its respective
directors, officers, agents, employees and Affiliates shall in no event be
liable to the Banks or to any of them for any action taken or omitted to be
taken by them pursuant to instructions received by them from the Required Banks
or in reliance upon the advice of counsel selected by it. Without limiting the
foregoing, neither the Agent, nor any of its respective directors, officers,
employees, agents or Affiliates shall be responsible to any Bank for the due
execution, validity, genuineness, effectiveness, sufficiency, or enforceability
of, or for any statement, warranty, or representation in, this Agreement, any
Loan Document or any related agreement, document or order, or shall be required
to ascertain or to make any inquiry concerning the performance or observance by
the Borrower of any of the terms, conditions, covenants, or agreements of this
Agreement or any of the Loan Documents.
(b) Neither the Agent nor any of its respective directors,
officers, employees, agents or Affiliates shall have any responsibility to the
Borrower or the Guarantors on account of the failure or delay in performance or
breach by any Bank or by the Borrower or the Guarantors of any of their
respective obligations under this Agreement or the Notes or any of the Loan
Documents or in connection herewith or therewith.
62
(c) The Agent, in its capacity as Agent hereunder, shall be
entitled to rely on any communication, instrument, or document reasonably
believed by such person to be genuine or correct and to have been signed or sent
by a person or persons believed by such person to be the proper person or
persons, and such person shall be entitled to rely on advice of legal counsel,
independent public accountants, and other professional advisers and experts
selected by such person.
SECTION 8.6. REIMBURSEMENT AND INDEMNIFICATION. Each Bank agrees (i) to
reimburse (x) the Agent for such Bank's Commitment Percentage of any expenses
and fees incurred for the benefit of the Banks under this Agreement, the Notes
and any of the Loan Documents, including, without limitation, fees of counsel
referred to in section 10.5 and compensation of agents and employees paid for
services rendered on behalf of the Banks, and any other expense incurred in
connection with the operations or enforcement thereof not reimbursed by the
Borrower or the Guarantors and (y) the Agent for such Bank's Commitment
Percentage of any expenses of the Agent incurred for the benefit of the Banks
that the Borrower has agreed to reimburse pursuant to Section 10.5 and has
failed to so reimburse and (ii) to indemnify and hold harmless the Agent and any
of its directors, officers, employees, agents or Affiliates, on demand, in the
amount of its proportionate share, from and against any and all liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses, or disbursements of any kind or nature whatsoever which may be imposed
on, incurred by, or asserted against it or any of them in any way relating to or
arising out of this Agreement, the Notes or any of the Loan Documents or any
action taken or omitted by it or any of them under this Agreement, the Notes or
any of the Loan Documents to the extent not reimbursed by the Borrower or the
Guarantors (except such as shall result from their respective gross negligence
or willful misconduct).
SECTION 8.7. RIGHTS OF AGENT. It is understood and agreed that Chase
shall have the same rights and powers hereunder (including the right to give
such instructions) as the other Banks and may exercise such rights and powers,
as well as its rights and powers under other agreements and instruments to which
it is or may be party, and engage in other transactions with the Borrower or any
Guarantor, as though it were not the Agent of the Banks under this Agreement.
SECTION 8.8. INDEPENDENT BANKS. Each Bank acknowledges that it has
decided to enter into this Agreement and to make the Loans hereunder based on
its own analysis of the transactions contemplated hereby and of the
creditworthiness of the Borrower and the Guarantors and agrees that the Agent
shall bear no responsibility therefor.
SECTION 8.9. NOTICE OF TRANSFER. The Agent may deem and treat a Bank
party to this Agreement as the owner of such Bank's portion of the Loans for all
purposes, unless and until a written notice of the
63
assignment or transfer thereof executed by such Bank shall have been received by
the Agent.
SECTION 8.10. SUCCESSOR AGENT. The Agent may resign at any time by
giving written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Required Banks shall have the right to appoint a successor
Agent, which shall be reasonably satisfactory to the Borrower. If no successor
Agent shall have been so appointed by the Required Banks and shall have accepted
such appointment, within 30 days after the retiring Agent's giving of notice of
resignation, the retiring Agent may, on behalf of the Banks, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof and having a combined capital and
surplus of a least $100,000,000, which shall be reasonably satisfactory to the
Borrower. Upon the acceptance of any appointment as Agent hereunder by a
successor
64
Agent, such successor Agent shall thereupon succeed to and become vested with
all the rights, powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under this
Agreement. After any retiring Agent's resignation hereunder as Agent, the
provisions of this Section 8 shall inure to its benefit as to any actions taken
or omitted to be taken by it while it was Agent under this Agreement.
SECTION 9. GUARANTY
SECTION 9.1. GUARANTY
(a) Each of the Guarantors unconditionally and irrevocably
guarantees the due and punctual payment and performance by the Borrower and the
other Guarantors of the Obligations (including, without limitation, Obligations
in respect of Indebtedness permitted by Sections 6.3(vi) and 6.3(vii)) and the
Borrower unconditionally and irrevocably guarantees the due and punctual payment
and performance by the Guarantors of any Obligations of the Guarantors in
respect of Indebtedness permitted by Section 6.3(vi) (and for purposes of this
guaranty by the Borrower references in this Section 9 to the Guarantors and the
Borrower, respectively, shall be deemed to include references to the Borrower
and the Guarantors, respectively, MUTATIS MUTANDIS). Each of the Guarantors
further agrees that the Obligations may be extended or renewed, in whole or in
part, without notice to or further assent from it, and it will remain bound upon
this guaranty notwithstanding any extension or renewal of any of the
Obligations. The Obligations of the Guarantors shall be joint and several.
Notwithstanding anything to the contrary herein, the maximum aggregate amount of
the Obligations that are guaranteed hereunder by any Subsidiary Guarantor shall
not exceed the maximum amount that can be so guaranteed without rendering this
guaranty by such Subsidiary Guarantor voidable under applicable law relating to
fraudulent conveyance or fraudulent transfer.
(b) Each of the Guarantors waives presentation to, demand for
payment from and protest to the Borrower or any other Guarantor, and also waives
notice of protest for nonpayment. The Obligations of the Guarantors hereunder
shall not be affected by (i) the failure of the Agent or a Bank to assert any
claim or demand or to enforce any right or remedy against the Borrower or any
other Guarantor under the provisions of this Agreement or any other Loan
Document or otherwise; (ii) any extension or renewal of any provision hereof or
thereof; (iii) any rescission, waiver,
65
compromise, acceleration, amendment or modification of any of the terms or
provisions of any of the Loan Documents; (iv) the release, exchange, waiver or
foreclosure of any security held by the Agent for the Obligations or any of
them; (v) the failure of the Agent or a Bank to exercise any right or remedy
against any other Guarantor; or (vi) the release or substitution of any
Guarantor or any other Guarantor.
(c) Each of the Guarantors further agrees that this guaranty
constitutes a guaranty of performance and of payment when due and not just of
collection, and waives any right to require that any resort be had by the Agent
or a Bank to any security held for payment of the Obligations or to any balance
of any deposit, account or credit on the books of the Agent or a Bank in favor
of the Borrower or any other Guarantor, or to any other Person.
(d) Each of the Guarantors hereby waives any defense that it
might have based on a failure to remain informed of the financial condition of
the Borrower and of any other Guarantor and any circumstances affecting the
ability of the Borrower to perform under this Agreement.
(e) Each Guarantor's guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Obligations, the
Notes or any other instrument evidencing any Obligations, or by the existence,
validity, enforceability, perfection, or extent of any collateral therefor or by
any other circumstance relating to the Obligations which might otherwise
constitute a defense to this Guaranty. Neither of the Agent, nor any of the
Banks makes any representation or warranty in respect to any such circumstances
or shall have any duty or responsibility whatsoever to any Guarantor in respect
of the management and maintenance of the Obligations.
(f) Subject to the provisions of Section 7.1, upon the
Obligations becoming due and payable (by acceleration or otherwise), the Banks
shall be entitled to immediate payment of such Obligations by the Guarantors
upon written demand by the Agent, without further application to or order of the
Bankruptcy Court.
SECTION 9.2. NO IMPAIRMENT OF GUARANTY. The obligations of the
Guarantors hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason, including, without limitation, any
claim of waiver, release, surrender, alteration or compromise, and shall not be
subject to any defense or set-off, counterclaim, recoupment or termination
whatsoever by reason of the invalidity, illegality or unenforceability of the
Obligations.
66
Without limiting the generality of the foregoing, the obligations of
the Guarantors hereunder shall not be discharged or impaired or otherwise
affected by the failure of the Agent or a Bank to assert any claim or demand or
to enforce any remedy under this Agreement or any other agreement, by any waiver
or modification of any provision thereof, by any default, failure or delay,
willful or otherwise, in the performance of the Obligations, or by any other act
or thing or omission or delay to do any other act or thing which may or might in
any manner or to any extent vary the risk of the Guarantors or would otherwise
operate as a discharge of the Guarantors as a matter of law, unless and until
the Obligations are paid in full.
SECTION 9.3. SUBROGATION. Upon payment by any Guarantor of any sums to
the Agent or a Bank hereunder, all rights of such Guarantor against the Borrower
arising as a result thereof by way of right of subrogation or otherwise, shall
in all respects be subordinate and junior in right of payment to the prior final
and indefeasible payment in full of all the Obligations. If any amount shall be
paid to such Guarantor for the account of the Borrower, such amount shall be
held in trust for the benefit of the Agent and the Banks and shall forthwith be
paid to the Agent and the Banks to be credited and applied to the Obligations,
whether matured or unmatured.
SECTION 10. MISCELLANEOUS
SECTION 10.1. NOTICES. Notices and other communications provided for
herein shall be in writing (including telegraphic, telex, facsimile or cable
communication) and shall be mailed, telegraphed, telexed, transmitted, cabled or
delivered to the Borrower or any Guarantor at 000 Xxxx Xxxx Xxxxxx, Xxxxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000, Attention: Chief Financial Officer and to a Bank or
the Agent to it at its address set forth on the signature pages of this
Agreement, or such other address as such party may from time to time designate
by giving written notice to the other parties hereunder. All notices and other
communications given to any party hereto in accordance with the provisions of
this Agreement shall be deemed to have been given on the fifth Business Day
after the date when sent by registered or certified mail, postage prepaid,
return receipt requested, if by mail; or when delivered to the telegraph
company, charges prepaid, if by telegram; or when receipt is acknowledged, if by
any telegraphic communications or facsimile equipment of the sender; in each
case addressed to such party as provided in this Section 10.1 or in accordance
with the latest unrevoked written direction from such party; provided, however,
that in the case of notices to the Agent notices pursuant to the preceding
sentence and pursuant to Section 2 shall be effective only when received by the
Agent.
67
SECTION 10.2. SURVIVAL OF AGREEMENT, REPRESENTATIONS AND WARRANTIES,
ETC. All warranties, representations and covenants made by the Borrower or any
Guarantor herein or in any certificate or other instrument delivered by it or on
its behalf in connection with this Agreement shall be considered to have been
relied upon by the Banks and shall survive the making of the Loans herein
contemplated and the issuance and delivery to the Banks of the Notes regardless
of any investigation made by any Bank or on its behalf and shall continue in
full force and effect so long as any amount due or to become due hereunder is
outstanding and unpaid and so long as the Commitments have not been terminated.
All statements in any such certificate or other instrument shall constitute
representations and warranties by the Borrower and the Guarantors hereunder with
respect to the Borrower.
SECTION 10.3. SUCCESSORS AND ASSIGNS.
(a) This Agreement shall be binding upon and inure to the
benefit of the Borrower, the Agent and the Banks and their respective successors
and assigns. Neither the Borrower nor any of the Guarantors may assign or
transfer any of their rights or obligations hereunder without the prior written
consent of all of the Banks. Each Bank may sell participations to any Person in
all or part of any Loan, or all or part of its Note or Commitment, in which
event, without limiting the foregoing, the provisions of Section 2.14 shall
inure to the benefit of each purchaser of a participation (provided that such
participant shall look solely to the seller of such participation for such
benefits and the Borrower's and the Guarantors' liability, if any, under
Sections 2.14 and 2.17 shall not be increased as a result of the sale of any
such participation) and the PRO RATA treatment of payments, as described in
Section 2.16, shall be determined as if such Bank had not sold such
participation. In the event any Bank shall sell any participation, such Bank
shall retain the sole right and responsibility to enforce the obligations of the
Borrower and each of the Guarantors relating to the Loans, including, without
limitation, the right to approve any amendment, modification or waiver of any
provision of this Agreement (provided that such Bank may grant its participant
the right to consent to such Bank's execution of amendments, modifications or
waivers which (i) reduce any Fees payable hereunder to the Banks, (ii) reduce
the amount of any scheduled principal payment on any Loan or reduce the
principal amount of any Loan or the rate of interest payable hereunder or (iii)
extend the maturity of the Borrower's obligations hereunder).
68
The sale of any such participation shall not alter the rights
and obligations of the Bank selling such participation hereunder with respect to
the Borrower.
(b) Each Bank may assign to one or more Banks or Eligible
Assignees all or a portion of its interests, rights and obligations under this
Agreement (including, without limitation, all or a portion of its Commitment and
the same portion of the related Loans at the time owing to it and the related
Note held by it), PROVIDED, HOWEVER, that (i) other than in the case of an
assignment to a Person at least 50% owned by the assignor Bank, or by a common
parent of both, or to another Bank, the Agent and the Fronting Bank must give
their respective prior written consent to such assignment, which consent will
not be unreasonably withheld, (it being understood and agreed that it will be
reasonable for the Agent and the Fronting Bank to withhold their consent to a
proposed assignment if the proposed assignee is a Person that has not agreed to
provide a portion of the credit facility referred to in Section 4.1(h)), (ii)
the aggregate amount of the Commitment and/or Loans of the assigning Bank
subject to each such assignment (determined as of the date the Assignment and
Acceptance with respect to such assignment is delivered to the Agent) shall,
unless otherwise agreed to in writing by the Borrower and the Agent, in no event
be less than $5,000,000 (or $1,000,000 in the case of an assignment between
Banks) and (iii) the parties to each such assignment shall execute and deliver
to the Agent, for its acceptance and recording in the Register (as defined
below), an Assignment and Acceptance with blanks appropriately completed,
together with any Note subject to such assignment and a processing and
recordation fee of $3,500 (for which the Borrower shall have no liability). Upon
such execution, delivery, acceptance and recording, from and after the effective
date specified in each Assignment and Acceptance, which effective date shall be
within ten Business Days after the execution thereof (unless otherwise agreed to
in writing by the Agent), (A) the assignee thereunder shall be a party hereto
and, to the extent provided in such Assignment and Acceptance, have the rights
and obligations of a Bank hereunder and (B) the Bank thereunder shall, to the
extent provided in such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Bank's rights
and obligations under this Agreement, such Bank shall cease to be a party
hereto).
(c) By executing and delivering an Assignment and Acceptance,
the Bank assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than the
representation and warranty that it is the legal and beneficial owner of the
interest being assigned
69
thereby free and clear of any adverse claim, such Bank assignor makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any of the other Loan Documents or the execution, legality,
validity, enforceability, genuineness, sufficiency or value of this Agreement or
any of the other Loan Documents; (ii) such Bank assignor makes no representation
or warranty and assumes no responsibility with respect to the financial
condition of the Borrower or any Guarantor or the performance or observance by
the Borrower or any Guarantor of any of its obligations under this Agreement or
any of the other Loan Documents or any other instrument or document furnished
pursuant hereto; (iii) such assignee confirms that it has received a copy of
this Agreement and the other Loan Documents, together with copies of the
financial statements referred to in Section 3.4 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agent, such Bank assignor or any
other Bank and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit decisions in taking or
not taking action under this Agreement; (v) such assignee appoints and
authorizes the Agent to take such action as agent on its behalf and to exercise
such powers under this Agreement as are delegated to the Agent by the terms
thereto, together with such powers as are reasonably incidental hereof; and (vi)
such assignee agrees that it will perform in accordance with their terms all
obligations that by the terms of this Agreement are required to be performed by
it as a Bank.
(d) The Agent shall maintain at its office a copy of each
Assignment and Acceptance delivered to it and a register for the recordation of
the names and addresses of the Banks and the Commitments of, and principal
amount of the Loans owing to, each Bank from time to time (the "Register"). The
entries in the Register shall be conclusive, in the absence of manifest error,
and the Borrower, the Guarantors, the Agent and the Banks shall treat each
Person the name of which is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Bank and the assignee thereunder together with any Note subject
to such assignment and the fee payable in respect thereto, the Agent shall, if
such Assignment and Acceptance has been completed with blanks appropriately
filled, (i) accept such Assignment and Acceptance, (ii) record the information
contained
70
therein in the Register and (iii) give prompt written notice thereof to the
Borrower (together with a copy thereof). Within five Business Days after receipt
of notice, the Borrower, at its own expense, shall execute and deliver to the
Agent in exchange for the surrendered Note a new Note to the order of such
assignee in an amount equal to the Commitment and/or Loans assumed by it
pursuant to such Assignment and Acceptance and, if the assigning Bank has
retained Commitments and/or Loans hereunder, a new Note to the order of the
assigning Bank in an amount equal to the Commitment and/or Loans retained by it
hereunder. Such new Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the surrendered Note. Thereafter, such surrendered
Note shall be marked canceled and returned to the Borrower.
(f) Any Bank may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
10.3, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower or any of the Guarantors
furnished to such Bank by or on behalf of the Borrower or any of the Guarantors;
provided that prior to any such disclosure, each such assignee or participant or
proposed assignee or participant shall agree in writing to be bound by the
provisions of Section 10.4.
(g) The Borrower hereby agrees, to the extent set forth in the
Commitment Letter, to actively assist and cooperate with the Agent in the
Agent's efforts to sell participations herein (as described in Section 10.3(a))
and assign to one or more Banks or Eligible Assignees a portion of its
interests, rights and obligations under this Agreement (as set forth in Section
10.3(b)).
SECTION 10.4. CONFIDENTIALITY. Each Bank agrees to keep any information
delivered or made available by the Borrower or any of the Guarantors to it
confidential from anyone other than persons employed or retained by such Bank
who are or are expected to become engaged in evaluating, approving, structuring
or administering the Loans; PROVIDED that nothing herein shall prevent any Bank
from disclosing such information (i) to any other Bank, (ii) to any other person
if reasonably incidental to the administration of the Loans, (iii) upon the
order of any court or administrative agency, (iv) upon the request or demand of
any regulatory agency or authority, (v) which has been publicly disclosed other
than as a result of a disclosure by the Agent or any Bank which is not permitted
by this Agreement, (vi) in connection with any litigation to which the Agent,
any Bank, or their respective Affiliates may be a party to
71
the extent reasonably required, (vii) to the extent reasonably required in
connection with the exercise of any remedy hereunder, (viii) to such Bank's
legal counsel and independent auditors, and (ix) to any actual or proposed
participant or assignee of all or part of its rights hereunder subject to the
proviso in Section 10.3(f) and provided further before such Bank complies with
(iii) or (iv) above, it shall (to the extent practicable under the
circumstances) use reasonable efforts to provide the Borrower with notice of
such request.
SECTION 10.5. EXPENSES. Whether or not the transactions hereby
contemplated shall be consummated, the Borrower and the Guarantors agree to pay
all reasonable out-of-pocket expenses incurred by the Agent (including but not
limited to the reasonable fees and disbursements of Xxxxxx, Xxxxx & Xxxxxxx LLP
and Cravath, Swaine & Xxxxx, respective special counsel for the Agent, any other
counsel that the Agent shall retain and any internal or third-party consultants
and auditors advising the Agent and Chase Securities Inc.) in connection with
the preparation, execution, delivery and administration of this Agreement, the
Notes and the other Loan Documents, the making of the Loans and the issuance of
the Letters of Credit, the perfection of the Liens contemplated hereby
(including, without limitation, trademark and trade name Liens), the syndication
of the transactions contemplated hereby, the reasonable and customary costs,
fees and expenses of the Agent in connection with its monthly and other periodic
field audits with respect to assets of the Borrower or the Guarantors,
monitoring of assets and publicity expenses, and, following the occurrence of an
Event of Default, all reasonable out-of-pocket expenses incurred by the Banks
and the Agent in the enforcement or protection of the rights of any one or more
of the Banks or the Agent in connection with this Agreement, the Notes or the
other Loan Documents, including but not limited to the reasonable fees and
disbursements of any counsel for the Banks or the Agent. Such payments shall be
made on the date of the Interim Order and thereafter on demand upon delivery of
a statement setting forth such costs and expenses. Whether or not the
transactions hereby contemplated shall be consummated, the Borrower and the
Guarantors agree to reimburse the Agent and Chase Securities Inc. for the
expenses set forth in the Commitment Letter and the reimbursement provisions
thereof are hereby incorporated herein by reference. The obligations of the
Borrower and the Guarantors under this Section shall survive the termination of
this Agreement and/or the payment of the Loans.
SECTION 10.6. INDEMNITY. The Borrower and each of the Guarantors agree
to indemnify and hold harmless the Agent, Chase Securities Inc. and the Banks
and their directors, officers, employees, agents and Affiliates (each an
"Indemnified Party") from
72
and against any and all expenses, losses, claims, damages and liabilities
incurred by such Indemnified Party arising out of claims made by any Person in
any way relating to the transactions contemplated hereby, but excluding
therefrom all expenses, losses, claims, damages, and liabilities arising out of
or resulting from the gross negligence or willful misconduct of such Indemnified
Party.
SECTION 10.7. CHOICE OF LAW. THIS AGREEMENT, THE NOTES AND THE OTHER
LOAN DOCUMENTS SHALL IN ALL RESPECTS BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS MADE AND
TO BE PERFORMED WHOLLY WITHIN SUCH STATE AND THE BANKRUPTCY CODE.
SECTION 10.8. NO WAIVER. No failure on the part of the Agent or any of
the Banks to exercise, and no delay in exercising, any right, power or remedy
hereunder or under the Notes or any of the other Loan Documents shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right,
power or remedy preclude any other or further exercise thereof or the exercise
of any other right, power or remedy. All remedies hereunder are cumulative and
are not exclusive of any other remedies provided by law.
SECTION 10.9. EXTENSION OF MATURITY. Should any payment of principal of
or interest on the Notes or any other amount due hereunder become due and
payable on a day other than a Business Day, the maturity thereof shall be
extended to the next succeeding Business Day and, in the case of principal,
interest shall be payable thereon at the rate herein specified during such
extension.
SECTION 10.10. AMENDMENTS, ETC.
(a) No modification, amendment or waiver of any provision of
this Agreement, the Notes or the Security and Pledge Agreement, and no consent
to any departure by the Borrower or any Guarantor therefrom, shall in any event
be effective unless the same shall be in writing and signed by the Required
Banks, and then such waiver or consent shall be effective only in the specific
instance and for the purpose for which given; provided, however, that no such
modification or amendment shall without the written consent of the Bank affected
thereby (x) increase the Commitment of a Bank (it being understood that a waiver
of an Event of Default shall not constitute an increase in the Commitment of a
Bank), or (y) reduce
73
the principal amount of any Loan or the rate of interest payable thereon, or
extend any date for the payment of interest hereunder or reduce any Fees payable
hereunder or extend the final maturity of the Borrower's obligations hereunder;
and, provided, further, that no such modification or amendment shall without the
written consent of all of the Banks (i) amend or modify any provision of this
agreement which provides for the unanimous consent or approval of the Banks,
(ii) amend this Section 10.10 or the definition of Required Banks, (iii) amend
or modify the Super-Priority Claim status of the Banks contemplated by Section
2.22 or (iv) release all or substantially all of the Collateral or (other than
in connection with a transaction, if any, that is otherwise permitted by this
Agreement in which all of the outstanding capital stock of a Guarantor is sold)
the obligations of any Guarantor hereunder. No such amendment or modification
may adversely affect the rights and obligations of the Agent or any Fronting
Bank hereunder without its prior written consent. No notice to or demand on the
Borrower or any Guarantor shall entitle the Borrower or any Guarantor to any
other or further notice or demand in the same, similar or other circumstances.
Each holder of a Note shall be bound by any amendment, modification, waiver or
consent authorized as provided herein, whether or not a Note shall have been
marked to indicate such amendment, modification, waiver or consent and any
consent by a Bank, or any holder of a Note, shall bind any Person subsequently
acquiring a Note, whether or not a Note is so marked. No amendment to this
Agreement shall be effective against the Borrower or any Guarantor unless signed
by the Borrower or such Guarantor, as the case may be.
(b) Notwithstanding anything to the contrary contained in
Section 10.10(a), in the event that the Borrower requests that this Agreement be
modified or amended in a manner which would require the unanimous consent of all
of the Banks and such modification or amendment is agreed to by the
Super-majority Banks (as hereinafter defined), then with the consent of the
Borrower and the Super-majority Banks, the Borrower and the Super-majority Banks
shall be permitted to amend the Agreement without the consent of the Bank or
Banks which did not agree to the modification or amendment requested by the
Borrower (such Bank or Banks, collectively the "Minority Banks") to provide for
(w) the termination of the Commitment of each of the Minority Banks, (x) the
addition to this Agreement of one or more other financial institutions (each of
which shall be an Eligible Assignee), or an increase in the Commitment of one or
more of the Super-majority Banks, so that the Total Commitment after giving
effect to such amendment shall be in the same amount as the Total Commitment
immediately before giving effect to such amendment, (y) if any Loans are
outstanding at the time of such amendment, the making of such additional Loans
by such new financial institutions or Super-majority Bank or Banks, as the case
may be, as may be necessary to repay in full the outstanding Loans of the
Minority Banks immediately before giving effect to such amendment and (z) such
other modifications to this Agreement as may be appropriate. As used herein, the
term "Super-majority Banks" shall mean, at any time, Banks, including Chase,
holding Loans representing at least 66-2/3%
74
of the aggregate principal amount of the Loans outstanding, or if no Loans are
outstanding, Banks having Commitments representing at least 66-2/3% of the Total
Commitment.
SECTION 10.11. SEVERABILITY. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
SECTION 10.12. HEADINGS. Section headings used herein are for
convenience only and are not to affect the construction of or be taken into
consideration in interpreting this Agreement.
SECTION 10.13. EXECUTION IN COUNTERPARTS. This Agreement may be
executed in any number of counterparts, each of which shall constitute an
original, but all of which taken together shall constitute one and the same
instrument.
SECTION 10.14. PRIOR AGREEMENTS. This Agreement represents the entire
agreement of the parties with regard to the subject matter hereof and the terms
of any letters and other documentation entered into between the Borrower or a
Guarantor and any Bank or the Agent prior to the execution of this Agreement
which relate to Loans to be made hereunder shall be replaced by the terms of
this Agreement (except as otherwise expressly provided herein with respect to
the Commitment Letter and the letter agreements referred to in Section 2.18,
including without limitation the Borrower's agreement to actively assist the
Agent in the syndication of the transactions contemplated hereby referred to in
Section 10.3(g) and including also the provisions of Section 2.21).
SECTION 10.15. FURTHER ASSURANCES. Whenever and so often as reasonably
requested by the Agent, the Borrower and the Guarantors will promptly execute
and deliver or cause to be executed and delivered all such other and further
instruments, documents or assurances, and promptly do or cause to be done all
such other and further things as may be necessary and reasonably required in
order to further and more fully vest in the Agent all rights, interests, powers,
benefits, privileges and advantages conferred or intended to be conferred by
this Agreement and the other Loan Documents.
SECTION 10.16. WAIVER OF JURY TRIAL. EACH OF THE BORROWER, THE
GUARANTORS, THE AGENT AND EACH BANK HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL
BY JURY IN ANY ACTION, PROCEEDING OR
75
COUNTERCLAIM ARISING OUT OF OR RELATING TO ANY OF THE LOAN DOCUMENTS OR THE
TRANSACTIONS CONTEMPLATED THEREBY.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and the year first written.
FLAGSTAR CORPORATION
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
FLAGSTAR COMPANIES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
FLAGSTAR HOLDINGS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
TWS FUNDING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
DENNY'S HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------
Title: Vice President
SPARTAN HOLDINGS, INC.
By: /s/ Xxxx X. Xxxxxxx
------------------------------
Title: Vice President
76
DENNY'S OF CANADA, LTD.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
DENNY'S RESTAURANTS OF CANADA, LTD.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
C-B-R DEVELOPMENT CO., INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
DENNY'S, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
DFO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
EL POLLO LOCO, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
XXXXXX XXXXXX ENTERPRISES #607, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
XXXXXX XXXXXX ENTERPRISES #611, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
LA MIRADA ENTERPRISES NO. 5, INC.
77
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
LA MIRADA ENTERPRISES NO. 6, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
LA MIRADA ENTERPRISES NO. 7, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
LA MIRADA ENTERPRISES NO. 8, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
LA MIRADA ENTERPRISES NO. 9, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
TWS 300 CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
TWS 500 CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
TWS 600 CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
78
TWS 700 CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
TWS 800 CORP.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
QUINCY'S RESTAURANTS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
FLAGSTAR ENTERPRISES, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
FLAGSTAR SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
SPARTAN REALTY, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
79
SPARTAN MANAGEMENT, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
IM PURCHASING, INC.
By: /s/ Xxxxxx X. Xxxxxxxxx
---------------------------
Title: Vice President
THE CHASE MANHATTAN BANK,
INDIVIDUALLY AND AS AGENT
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------
Title: Vice President
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
BHF-BANK AKTIENGESELLSCHAFT
By: /s/ Xxxx Xxxxx
---------------------------
Title: Assistant Vice President
By: /s/ Xxxxxx Xxxx
---------------------------
Title: Assistant Treasurer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
THE LONG-TERM CREDIT BANK OF JAPAN,
LIMITED, NEW YORK BRANCH
By: /s/ Xxxx X. Xxxxxxxx
---------------------------
Title: Joint General Manager
000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
XXX XXXXXX AMERICAN CAPITAL PRIME
RATE INCOME TRUST
80
By: /s/ Xxxxxxxx X. Xxxx
---------------------------
Title: Vice President
Xxx Xxxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
SANWA BUSINESS CREDIT CORPORATION
By: /s/ Xxxx Xxxxx
---------------------------
Title: Vice President
Xxx Xxxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
KZH HOLDING CORPORATION III
By: /s/ Xxxxxxxx Xxxxxx
---------------------------
Title: Authorized Agent
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
KZH-CRESCENT CORPORATION
By: /s/ Xxxxxx Xxxxxxx
---------------------------
Title: Authorized Agent
x/x Xxx Xxxxx Xxxxxxxxx Bank
000 Xxxx 00xx Xxxxxx, 00xx Xx.
Xxx Xxxx, Xxx Xxxx 00000
81
ANNEX A
TO
REVOLVING CREDIT AND GUARANTY AGREEMENT
DATED AS OF JULY 11, 1997, AS AMENDED
COMMITMENT COMMITMENT PERCENTAGE
BANK AMOUNT
The Chase Manhattan Bank $93,000,000 46.50%
BHF-BANK Aktiengesellschaft 24,000,000 12.00%
The Long-Term Credit Bank of 23,000,000 11.50%
Japan, Limited, New York Branch
Xxx Xxxxxx American Capital Prime Rate Income 20,000,000 10.00%
Trust
Sanwa Business Credit Corporation 20,000,000 10.00%
KZH Holding Corporation III 15,000,000 7.50%
KZH-Crescent Corporation 5,000,000 2.50%
--------------- ---------
TOTAL: $200,000,000 100.00%
=============== =========
EXHIBIT A TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
[FORM OF NOTES]
EXHIBIT B-1 TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
[INTERIM ORDER]
EXHIBIT B-2 TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
[FINAL ORDER]
EXHIBIT D TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
[OPINION OF COUNSEL FOR
BORROWER AND GUARANTORS]
EXHIBIT E TO
REVOLVING CREDIT AND
GUARANTY AGREEMENT
[ASSIGNMENT AND ACCEPTANCE]
SCHEDULE 1.1
EXISTING AGREEMENTS
[SUCH SCHEDULE TO BE SATISFACTORY TO THE AGENT]
SCHEDULE 3.4
INDEBTEDNESS INCURRED SINCE DECEMBER 31, 1996
[SUCH SCHEDULE TO BE SATISFACTORY TO THE AGENT]
SCHEDULE 3.5
SUBSIDIARIES
[SUCH SCHEDULE TO BE SATISFACTORY TO THE AGENT]
SCHEDULE 3.6
PRE-PETITION LIENS
[SUCH SCHEDULE TO BE SATISFACTORY TO THE AGENT]
SCHEDULE 3.11
LITIGATION
[SUCH SCHEDULE TO BE SATISFACTORY TO THE AGENT]
