Exhibit 10.3
EXECUTION COPY
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CREDIT AGREEMENT
Dated as of July 16, 2003
TEXAS ROADHOUSE HOLDINGS LLC
as the Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent, Swing Line Lender
and
L/C Issuer,
and
The Other Lenders Party Hereto
BANC OF AMERICA SECURITIES LLC,
as Co-Lead Arranger,
and
NATIONAL CITY BANK OF KENTUCKY,
as Co-Lead Arranger and as Syndication Agent,
and
BANK ONE,
as Co-Documentation Agent,
and
U.S. BANK NATIONAL ASSOCIATION,
as Co-Documentation Agent.
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TABLE OF CONTENTS
Section Page
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ARTICLE I. DEFINITIONS AND ACCOUNTING TERMS 1
1.01 Defined Terms. 1
1.02 Other Interpretive Provisions. 25
1.03 Accounting Terms. 25
1.04 UCC Terms. 26
1.05 Rounding. 26
1.06 References to Agreements and Laws. 26
1.07 Times of Day. 26
1.08 Letter of Credit Amounts. 26
ARTICLE II. THE COMMITMENTS AND CREDIT EXTENSIONS 26
2.01 Construction Loans. 26
2.02 Working Capital Loans. 28
2.03 Term Loan. 29
2.04 Conversions and Continuations of Construction Loans, Working
Capital Loans and Term Loan. 30
2.06 Swing Line Loans. 38
2.07 Prepayments. 41
2.08 Termination or Reduction of Construction Loan Commitments or
Working Capital Commitments. 45
2.09 Repayment of Loans. 46
2.10 Reallocation of Construction Loan Commitment and Working
Capital Commitment. 46
ARTICLE III. GENERAL LOAN PROVISIONS 47
3.01 Interest. 47
3.02 Fees. 47
3.03 Computation of Interest and Fees. 48
3.04 Evidence of Debt. 48
3.05 Payments Generally. 49
3.06 Sharing of Payments. 50
3.07 Security. 51
ARTICLE IV. TAXES, YIELD PROTECTION AND ILLEGALITY 51
4.01 Taxes. 51
4.02 Illegality. 52
4.03 Inability to Determine Rates. 53
4.04 Increased Cost and Reduced Return; Capital Adequacy. 53
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4.05 Funding Losses. 53
4.06 Matters Applicable to all Requests for Compensation 54
4.07 Survival. 54
ARTICLE V. CONDITIONS PRECEDENT TO CREDIT EXTENSIONS 54
5.01 Conditions of Initial Credit Extension. 54
5.02 Additional Conditions for each Construction Loan 59
5.03 Conditions to all Credit Extensions. 60
ARTICLE VI. REPRESENTATIONS AND WARRANTIES 61
6.01 Existence, Qualification and Power; Compliance with Laws. 61
6.02 Authorization; No Contravention. 61
6.03 Governmental Authorization; Other Consents. 61
6.04 Binding Effect. 62
6.05 Financial Statements; No Material Adverse Effect. 62
6.06 Litigation. 62
6.07 No Default. 63
6.08 Ownership of Property; Liens. 63
6.09 Environmental Compliance. 63
6.10 Insurance. 64
6.11 Taxes. 64
6.12 ERISA Compliance. 65
6.13 Subsidiaries. 65
6.14 Margin Regulations; Investment Company Act; Public Utility
Holding Company Act. 66
6.15 Material Contracts 66
6.16 Disclosure. 66
6.17 Compliance with Laws. 66
6.18 Intellectual Property; Licenses, Etc 67
6.19 Employee Relations. 67
6.20 Burdensome Provisions 67
6.21 Tax Shelter Regulations 67
6.22 Survival of Representations and Warranties, Etc 68
ARTICLE VII. AFFIRMATIVE COVENANTS 68
7.01 Financial Statements 68
7.02 Certificates; Other Information 69
7.03 Notices 70
7.04 Payment of Obligations 71
7.05 Preservation of Existence, Etc 71
7.06 Maintenance of Properties 71
7.07 Maintenance of Insurance 71
7.08 Compliance with Laws 72
7.09 Environmental Laws 72
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7.10 Compliance with ERISA 72
7.11 Compliance With Agreements 72
7.12 Books and Records 73
7.13 Inspection Rights 73
7.14 Use of Proceeds 73
7.15 Additional Subsidiaries 73
7.16 Required Joint Venture Distributions 74
7.17 Further Assurances 74
ARTICLE VIII. NEGATIVE COVENANTS 74
8.01 Liens 74
8.02 Investments 75
8.03 Indebtedness 77
8.04 Fundamental Changes 78
8.05 Dispositions 79
8.06 Restricted Payments 79
8.07 Limitations on Exchange and Issuance of Capital Stock 80
8.08 Change in Nature of Business 80
8.09 Accounting Changes; Organizational Documents 80
8.10 Transactions with Affiliates 81
8.11 Burdensome Agreements 81
8.12 Use of Proceeds 81
8.13 Impairment of Security Interests 81
8.14 Restrictions on Conduct of IP Holdco 81
8.15 Financial Covenants 81
8.16 Capital Expenditures 82
8.17 Restaurant Expenditure Limitations 83
8.18 Consolidated New Unit Pre-Opening Costs Limitations 83
ARTICLE IX. EVENTS OF DEFAULT AND REMEDIES 83
9.01 Events of Default 83
9.02 Remedies Upon Event of Default 85
9.03 Application of Funds 86
ARTICLE X. ADMINISTRATIVE AGENT 86
10.01 Appointment and Authorization of Administrative Agent 86
10.02 Delegation of Duties 87
10.03 Liability of Administrative Agent 87
10.04 Reliance by Administrative Agent 88
10.05 Notice of Default 88
10.06 Credit Decision; Disclosure of Information by Administrative
Agent 88
10.07 Indemnification of Administrative Agent 89
10.08 Administrative Agent in its Individual Capacity 89
10.09 Successor Administrative Agent 90
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10.10 Administrative Agent May File Proofs of Claim 90
10.11 Collateral and Guaranty Matters 91
10.12 Other Agents; Arrangers and Managers 92
ARTICLE XI. MISCELLANEOUS 92
11.01 Amendments, Etc 92
11.02 Notices and Other Communications; Facsimile Copies 93
11.03 No Waiver; Cumulative Remedies 94
11.04 Attorney Costs, Expenses and Taxes 95
11.05 Indemnification by the Borrower 95
11.06 Payments Set Aside 96
11.07 Successors and Assigns 96
11.08 Confidentiality 99
11.09 Set-off 100
11.10 Interest Rate Limitation 100
11.11 Counterparts 101
11.12 Integration 101
11.13 Survival of Representations and Warranties 101
11.14 Severability 101
11.15 Tax Forms 101
11.16 Governing Law 103
11.17 Waiver of Right to Trial by Jury 104
11.18 Time of the Essence 104
SIGNATURES S-1
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SCHEDULES
1.01 Excluded Guarantees
2.01 Commitments and Commitment Percentages
3.07 Security Documents
6.01 Jurisdictions of Organization and Qualification
6.05 Supplement to Interim Financial Statements
6.06 Litigation
6.08 Property
6.09 Environmental Matters
6.11 Taxes
6.12 ERISA Plans
6.13 Subsidiaries and Other Equity Investments
6.15 Material Contracts
6.18 Intellectual Property
8.01 Existing Liens
8.02 Existing Investments
8.03 Existing Indebtedness
11.02 Administrative Agent's Office, Certain Addresses for Notices
EXHIBITS
FORM OF
A Loan Notice
B Swing Line Loan Notice
C Note
D Compliance Certificate
E Assignment and Assumption
F-1 Unlimited Subsidiary Guaranty
F-2 Limited Subsidiary Guaranty
G Intercompany Note
H Collateral Assignment
I Notice of Account Designation
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CREDIT AGREEMENT
This
CREDIT AGREEMENT ("AGREEMENT") is entered into as of July 16, 2003,
among TEXAS ROADHOUSE HOLDINGS LLC, a Kentucky limited liability company (the
"BORROWER"), each lender from time to time party hereto (collectively, the
"LENDERS" and individually, a "LENDER"), BANK OF AMERICA, N.A., as
Administrative Agent, Swing Line Lender and L/C Issuer, and NATIONAL CITY BANK
OF KENTUCKY, as Syndication Agent.
The Borrower has requested, among other things, that the Lenders provide a
revolving construction loan facility, a working capital line, a swing line, a
letter of credit facility and a term loan facility, and the Lenders are willing
to do so on the terms and conditions set forth herein.
In consideration of the mutual covenants and agreements herein contained,
the parties hereto covenant and agree as follows:
ARTICLE I.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the meanings set
forth below:
"ADMINISTRATIVE AGENT" means Bank of America in its capacity as
administrative agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means the Administrative Agent's address
and, as appropriate, account as set forth on SCHEDULE 11.02, or such other
address or account as the Administrative Agent may from time to time notify the
Borrower and the Lenders.
"ADMINISTRATIVE QUESTIONNAIRE" means an Administrative Questionnaire in a
form supplied by the Administrative Agent.
"AFFILIATE" means, with respect to any Person, another Person that
directly, or indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person specified. "CONTROL"
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies of a Person, whether through the
ability to exercise voting power, by contract or otherwise. "CONTROLLING" and
"CONTROLLED" have meanings correlative thereto. Without limiting the generality
of the foregoing, a Person shall be deemed to be Controlled by another Person if
such other Person possesses, directly or indirectly, power to vote 16% or more
of the securities having ordinary voting power for the election of directors,
managing general partners or the equivalent.
"AGENT-RELATED PERSONS" means the Administrative Agent, together with its
Affiliates (including, in the case of Bank of America in its capacity as the
Administrative Agent, and as the Co-Lead Arranger), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
"AGGREGATE COMMITMENTS" means the Commitments of all the Lenders. On the
Closing Date the Aggregate Commitments shall be $100,000,000.
"AGREEMENT" means this
Credit Agreement, as amended, restated, supplemented
or otherwise modified from time to time.
"APPLICABLE RATE" means the following percentages per annum, based upon the
Consolidated Leverage Ratio as set forth in the most recent Compliance
Certificate received by the Administrative Agent pursuant to SECTION 7.02(b):
APPLICABLE RATE
Eurodollar Rate Loans Base Rate Loans
-----------------------------------------------
Construction
Loans Construction
and Loans and
Consolidated Working Working
Pricing Total Commitment Capital Term Capital Term
Level Leverage Ratio Fee Loans Loan Loans Loan
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1 Less than or equal to 2.00x 0.250% 1.50% 1.75% 0.250% 0.500%
Less than or equal to
2 2.50x but greater than 2.00x 0.250% 2.00% 2.25% 0.750% 1.000%
Less than or equal to
3 3.00x but greater than 2.50x 0.250% 2.25% 2.50% 1.000% 1.250%
4 Greater than 3.0x 0.250% 2.50% 2.75% 1.250% 1.500%
Any increase or decrease in the Applicable Rate resulting from a change in
the Consolidated Leverage Ratio shall become effective as of the first Business
Day immediately following the date a Compliance Certificate is delivered
pursuant to SECTION 6.02(b); PROVIDED, HOWEVER, that if a Compliance Certificate
is not delivered when due in accordance with such Section, then Pricing Level 4
shall apply as of the first Business Day after the date on which such Compliance
Certificate was required to have been delivered. The Applicable Rate in effect
from the Closing Date through receipt of the Compliance Certificate with respect
to the Fiscal Quarter ending September 30, 2003 shall be based upon Pricing
Xxxxx 0, unless a higher Pricing Level would apply.
"ASSIGNMENT AND ASSUMPTION" means an Assignment and Assumption
substantially in the form of EXHIBIT E.
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"ASSUMED CAPITAL EXPENDITURES" means, for any four (4) quarter period, an
amount equal to the product of (a) $30,000 TIMES (b) the number of Restaurants
owned by the Borrower and its Subsidiaries, which such Restaurants have been
open for more than eighteen (18) months.
"ATTORNEY COSTS" means and includes all reasonable fees, expenses and
disbursements of any law firm or other external counsel.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any capital
lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP.
"AUDITED FINANCIAL STATEMENTS" has the meaning set forth in SECTION
5.01(f).
"AVAILABILITY PERIOD" means:
(a) with respect to Construction Loans, the period from and
including the Closing Date to the earliest of (i) the Construction Loan
Maturity Date, (ii) the date of termination of the Construction Loan
Commitments pursuant to SECTION 2.08, and (iii) the date of termination of
the commitment of each Lender to make Loans pursuant to SECTION 9.02, and
(b) with respect to Working Capital Loans, the period from and
including the Closing Date to the earliest of (i) the Working Capital Loan
Maturity Date, (ii) the date of termination of the Working Capital
Commitments pursuant to SECTION 2.08, and (iii) the date of termination of
the commitment of each Lender to make Loans and of the obligation of the
L/C Issuer to make L/C Credit Extensions pursuant to SECTION 9.02.
"BANK OF AMERICA" means Bank of America, N.A., a national banking
association, and its successors.
"BASE RATE" means for any day a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate." The "prime rate" is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired return,
general economic conditions and other factors, and is used as a reference point
for pricing some loans, which may be priced at, above, or below such announced
rate. Any change in such rate announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Loan that bears interest based on the Base Rate.
"BORROWER" has the meaning set forth in the introductory paragraph hereto.
"BORROWING" means a Construction Loan Borrowing, a Working Capital
Borrowing, a Swing Line Borrowing or a Term Loan Borrowing, as the context may
require.
"BUSINESS DAY" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Laws of, or are in fact
closed in, the state
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where the Administrative Agent's Office is located and, if such day relates to
any Eurodollar Rate Loan, means any such day on which dealings in Dollar
deposits are conducted by and between banks in the London interbank eurodollar
market.
"CAPITAL ASSET" means, with respect to the Borrower and its Subsidiaries,
any asset that should, in accordance with GAAP, be classified and accounted for
as a capital asset on a consolidated balance sheet of the Borrower and its
Subsidiaries.
"CAPITAL EXPENDITURES" means with respect to the Borrower and its
Subsidiaries for any period, the aggregate cost of all Capital Assets acquired
by the Borrower and its Subsidiaries during such period, as determined in
accordance with GAAP MINUS, to the extent included in the foregoing,
expenditures made by the Borrower and its Subsidiaries during such period (a)
with the proceeds of insurance or a condemnation claim to restore or replace
property or assets to the condition of such property or assets immediately prior
to any damage, loss, destruction or condemnation of the same, (b) pursuant to
Section 8.02(g), and (c) in connection with the trade-in of property or assets
pursuant to Section 8.05(c).
"CASH COLLATERALIZE" has the meaning set forth in SECTION 2.05(g).
"CHANGE OF CONTROL" means, an event or series of events by which:
(a) at any time, the Permitted Equityholders cease to own and control
beneficially and of record, at least fifty-one percent (51%) of (i) the equity
securities of the Borrower entitled to vote for the managers, members of the
board of directors or equivalent governing body of the Borrower on a
fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right), and (ii)
the aggregate capital accounts of the Borrower on a fully-diluted basis (and
taking into account all such securities that such person or group has the right
to acquire pursuant to any option right);
(b) prior to the consummation of any initial public offering of common
stock of the Borrower, W. Xxxx Xxxxxx (or any Persons which are formed for
estate planning or charitable purposes and which are beneficially owned or
controlled by, W. Xxxx Xxxxxx and/or W. Xxxx Xxxxxx'x estate and/or any of W.
Xxxx Xxxxxx'x heirs or immediate family members) shall fail to collectively own
forty percent (40%) or more of (i) the equity securities of the Borrower
entitled to vote for the managers, members of the board of directors or
equivalent governing body of the Borrower on a fully-diluted basis (and taking
into account all such securities that such person or group has the right to
acquire pursuant to any option right), and (ii) the aggregate capital accounts
of the Borrower on a fully-diluted basis (and taking into account all such
securities that such person or group has the right to acquire pursuant to any
option right); or
(c) following the consummation of any initial public offering of
common stock of the Borrower or any successor thereto permitted pursuant to
Section 8.04(a) (the "PUBLIC COMPANY"), (i) W. Xxxx Xxxxxx (and any Persons
which are formed for estate planning or charitable purposes and which are
beneficially owned or controlled by, W. Xxxx Xxxxxx and/or W. Xxxx Xxxxxx'x
estate and/or any of W. Xxxx Xxxxxx'x heirs or immediate family members) shall
fail to collectively own twenty-five percent (25%) or more of the equity
securities of the Public Company entitled to vote for the members of the board
of directors or equivalent
4
governing body of the Public Company on a fully-diluted basis (and taking into
account all such securities that such person or group has the right to acquire
pursuant to any option right), or (ii) any "person" or "group" (as such terms
are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934, but
excluding any employee benefit plan of such person or its subsidiaries, and any
person or entity acting in its capacity as trustee, agent or other fiduciary or
administrator of any such plan), other than a "person" or "group" consisting of,
or controlled by, the Permitted Equityholders, becomes the "beneficial owner"
(as defined in Rules 13d-3 and 13d-5 under the Securities Exchange Act of 1934,
except that a person or group shall be deemed to have "beneficial ownership" of
all securities that such person or group has the right to acquire (such right,
an "OPTION RIGHT"), whether such right is exercisable immediately or only after
the passage of time), directly or indirectly, of twenty-five percent (25%) or
more of the equity securities of the Public Company entitled to vote for members
of the board of directors or equivalent governing body of the Public Company on
a fully-diluted basis (and taking into account all such securities that such
person or group has the right to acquire pursuant to any option right).
"CLOSING DATE" means the first date all the conditions precedent in SECTION
5.01 are satisfied or waived in accordance with SECTION 5.01 (or, in the case of
SECTION 5.01(c), waived by the Person entitled to receive the applicable
payment).
"CO-LEAD ARRANGERS" means, collectively, Banc of America Securities LLC,
and National City Bank of Kentucky.
"CODE" means the Internal Revenue Code of 1986.
"COLLATERAL" means the collateral security for all or a portion of the
Obligations pledged or granted pursuant to the Security Documents.
"COLLATERAL ASSIGNMENT" means the collateral assignment executed and
delivered by the Guarantors pursuant to the terms of this Agreement for each
Intercompany Construction Loan Note and by the Term Loan Subsidiaries for each
Intercompany Term Loan Note, in substantially the form of EXHIBIT H.
"COMMITMENT" means, as to each Lender, the sum of such Lender's
Construction Loan Commitment, Working Capital Loan Commitment and Term Loan
Commitment, in an aggregate principal amount at any one time outstanding not to
exceed the amounts set forth opposite such Lender's name on SCHEDULE 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount may be adjusted from time to time in
accordance with this Agreement.
"COMMITMENT FEE" has the meaning set forth in SECTION 3.02(a).
"COMPENSATION PERIOD" has the meaning set forth in SECTION 3.05(c)(ii).
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form of
EXHIBIT D.
"CONSOLIDATED AND CONSOLIDATING" means, with respect to any financial
statements of the Borrower and its Subsidiaries, financial statements
structured, organized and providing similar
5
information and analysis as set forth in the Audited Financial Statements or
Unaudited Quarterly Financial Statements, as applicable.
"CONSOLIDATED ADJUSTED FUNDED INDEBTEDNESS" means, as of any date of
determination, for the Borrower and its Subsidiaries on a consolidated basis,
the sum of (a) the outstanding principal amount of all obligations, whether
current or long-term, for borrowed money (including Obligations hereunder) and
all obligations evidenced by bonds, debentures, notes, loan agreements or other
similar instruments, PLUS (b) all purchase money Indebtedness, PLUS (c) all
direct obligations arising under letters of credit (including standby and
commercial), bankers' acceptances, bank guaranties, surety bonds and similar
instruments, PLUS (d) all obligations in respect of the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business), PLUS (e) Attributable Indebtedness in respect of capital
leases, PLUS (f) without duplication, all Guarantees (other than the Excluded
Guarantees) with respect to outstanding Indebtedness of the types specified in
clauses (a) through (e) above of Persons other than the Borrower or any
Subsidiary, PLUS (g) all Indebtedness of the types referred to in clauses (a)
through (f) above of any partnership or joint venture (other than a joint
venture that is itself a corporation or limited liability company) which such
partnership or joint venture is not a direct or indirect Subsidiary of the
Borrower, in which the Borrower or a Subsidiary is a general partner or joint
venturer, unless such Indebtedness is expressly made non-recourse to the
Borrower or such Subsidiary, PLUS (h) an amount equal to the product of eight
(8) times Consolidated Rental Expense (excluding up to $2,000,000 of
Consolidated Rental Expense attributable to equipment leases) for four Fiscal
Quarters most recently ended.
"CONSOLIDATED EBITDA" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, an amount equal to Consolidated Net Income
for such period PLUS the following to the extent deducted in calculating such
Consolidated Net Income: (a) Consolidated Interest Charges for such period, (b)
the provision for federal, state, local and foreign income taxes payable (but
not any tax loss or refund) by the Borrower and its Subsidiaries for such
period, and (c) the amount of depreciation and amortization expense deducted in
determining such Consolidated Net Income.
"CONSOLIDATED EBITDAR" means, for any period, the sum of Consolidated
EBITDA PLUS Consolidated Rental Expense for such period.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum of the
following determined on a consolidated basis, for the Borrower and its
Subsidiaries in accordance with GAAP: (a) Consolidated Interest Charges paid or
payable in cash for such period, (b) the amount of scheduled principal payments
with respect to Indebtedness for such period, (c) an amount equal to the sum of
1/15th of the Construction Loan Outstandings as of the last day of such period
PLUS 1/15th of the Working Capital Outstandings as of the last day of such
period, (d) Consolidated Rental Expense for such period, (e) dividends and other
distributions (including, without limitation, Required Shareholder
Distributions) paid in cash for such period (excluding any dividends and
distributions to minority owners of Joint Venture Subsidiaries), (f) an amount
equal to the amount by which (i) actual cash dividends and distributions to
minority owners of the Joint Venture Subsidiaries exceed (ii) the actual
minority ownership expense attributable to such minority owners of the Joint
Venture Subsidiaries, and (g) Assumed Capital Expenditures.
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"CONSOLIDATED FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Consolidated EBITDAR for the period of the four
Fiscal Quarters most recently ended TO (b) Consolidated Fixed Charges for such
period.
"CONSOLIDATED INTEREST CHARGES" means, for any period, for the Borrower and
its Subsidiaries on a consolidated basis, the sum of (a) all interest, premium
payments, debt discount, fees, charges and related expenses of the Borrower and
its Subsidiaries in connection with borrowed money (including capitalized
interest) or in connection with the deferred purchase price of assets, in each
case to the extent treated as interest in accordance with GAAP, (b) the portion
of Consolidated Rental Expense with respect to such period under capital leases
that is treated as interest in accordance with GAAP, and (c) the amount of net
settlement obligations of the Borrower and its Subsidiaries under any Swap
Contract respecting interest rate management and relating to the spread between
the fixed interest rate under such Swap Contract and the floating interest rate
hedged thereby.
"CONSOLIDATED LEVERAGE RATIO" means, as of any date of determination, the
ratio of (a) Consolidated Adjusted Funded Indebtedness as of such date TO (b)
the sum of (i) Consolidated EBITDAR for the period of the four fiscal quarters
most recently ended for which the Borrower has delivered financial statements
pursuant to SECTION 7.01(a) or SECTION 7.01 (b), PLUS (ii) Consolidated New Unit
Pre-Opening Costs (up to the maximum amount permitted by SECTION 8.18 hereunder)
deducted from Consolidated Net Income for such period.
"CONSOLIDATED NET INCOME" means, for any period, for the Borrower and its
Subsidiaries on a consolidated basis, the net income of the Borrower and its
Subsidiaries (excluding (I) extraordinary or one-time gains and (II)
extraordinary or one-time non-cash losses) and (including extraordinary or
one-time cash losses to the extent not offset by extraordinary or one-time cash
gains during the same fiscal period) for that period; PROVIDED that (a) the net
income (or loss) of any Person, in which the Borrower or any of its Subsidiaries
has a joint interest with a third party, shall be excluded from Consolidated Net
Income except to the extent such net income is actually paid to the Borrower or
any of its Subsidiaries by dividend or other distribution during such period,
and (b) the net income (or loss) of any Person accrued prior to the date it
becomes a Subsidiary of such Person or is merged into or consolidated with such
Person or any of its Subsidiaries or that Person's assets are acquired by such
Person or any of its Subsidiaries shall be included on a pro forma, historical
basis (after giving effect to any adjustments to the net income (or loss) of
such newly acquired Person; PROVIDED that (x) such adjustments have been
identified in writing by the Borrower at the time of such acquisition, (y) such
adjustments have been approved by the Administrative Agent prior to the closing
of such acquisition, and (z) with respect to any acquisition, the amount of the
adjustments relating to such acquisition do not exceed an amount equal to
twenty-five percent (25%) of the net income (or loss) of such newly acquired
Person) as if such Person had been a Subsidiary for the entire period.
"CONSOLIDATED NEW UNIT PRE-OPENING COSTS" shall mean "start-up costs" (such
term used herein as defined in SOP 98-5 published by the American Institute of
Certified Public Accountants) related to the acquisition, opening and organizing
of New Units, such costs including, without limitation, staff-training,
recruiting and travel costs for employees engaged in such start-up activities.
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"CONSOLIDATED RENTAL EXPENSE" shall mean, for any period, for the Borrower
and its Subsidiaries on a consolidated basis, the operating lease expense of the
Borrower and its Subsidiaries determined in accordance with GAAP for leases with
an initial term greater than one year, as disclosed in the notes to the
consolidated financial statements of the Borrower and its Subsidiaries.
"CONSOLIDATED TANGIBLE NET WORTH" means, as of any date of determination,
for the Borrower and its Subsidiaries on a consolidated basis, Shareholders'
Equity of the Borrower and its Subsidiaries on that date MINUS the Intangible
Assets of the Borrower and its Subsidiaries on that date.
"CONSTRUCTION-IN-PROGRESS AMOUNT" means the aggregate value of all
Restaurants owned by the Borrower or any Guarantor financed by Working Capital
Loans which such Restaurants (a) are in the process of being acquired,
constructed and organized by the Borrower or such Guarantor and (b) have not yet
been open to the public for operation.
"CONSTRUCTION LOAN" has the meaning set forth in SECTION 2.01(a).
"CONSTRUCTION LOAN BORROWING" means a borrowing consisting of simultaneous
Construction Loans of the same Type and, in the case of Eurodollar Rate Loans,
having the same Interest Period made by each of the Lenders pursuant to SECTION
2.01.
"CONSTRUCTION LOAN COMMITMENT" means, as to each Lender, its obligation to
make Construction Loans in accordance with the provisions of SECTION 2.01(a), in
an aggregate principal amount at any one time outstanding not to exceed the
amounts set forth opposite such Lender's name on SCHEDULE 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. "CONSTRUCTION LOAN COMMITMENTS" means the aggregate
Construction Loan Commitment of all Lenders. On the Closing Date, the
Construction Loan Commitments shall be $73,650,000; PROVIDED, HOWEVER, that such
amount is subject to change pursuant to SECTION 2.10.
"CONSTRUCTION LOAN COMMITMENT PERCENTAGE" means, as to each Lender at any
time, a fraction (expressed as a percentage, carried out to the ninth decimal
place), the numerator of which is the amount of the Construction Loan Commitment
of such Lender at such time and the denominator of which is the amount of the
Construction Loan Commitments at such time; PROVIDED that if the commitment of
each Lender to make Loans has been terminated pursuant to SECTION 9.02, then the
Construction Loan Commitment Percentage of each Lender shall be determined based
on the Construction Loan Commitment Percentage of such Lender immediately prior
to such termination and after giving effect to any subsequent assignments made
pursuant to the terms hereof. The initial Construction Loan Commitment
Percentage of each Lender is set forth opposite the name of such Lender on
SCHEDULE 2.01 or in the Assignment and Assumption pursuant to which such Lender
becomes a party hereto, as applicable.
"CONSTRUCTION LOAN MATURITY DATE" means July 16, 2006.
"CONSTRUCTION LOAN OUTSTANDINGS" means the aggregate Outstanding Amount of
all Construction Loans.
8
"CONTRACTUAL OBLIGATION" means, as to any Person, any provision of any
security issued by such Person or of any agreement, instrument or other
undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL" has the meaning set forth in the definition of "Affiliate."
"CREDIT EXTENSION" means each of the following: (a) a Borrowing and (b) an
L/C Credit Extension.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United States, and
all other liquidation, conservatorship, bankruptcy, assignment for the benefit
of creditors, moratorium, rearrangement, receivership, insolvency,
reorganization, or similar debtor relief Laws of the United States or other
applicable jurisdictions from time to time in effect and affecting the rights of
creditors generally.
"DEFAULT" means any event or condition that constitutes an Event of Default
or that, with the giving of any notice, the passage of time, or both, would be
an Event of Default.
"DEFAULT RATE" means an interest rate equal to (a) the Base Rate PLUS (b)
the Applicable Rate, if any, applicable to Base Rate Loans PLUS (c) 2% per
annum; PROVIDED, HOWEVER, that with respect to a Eurodollar Rate Loan, the
Default Rate shall be an interest rate equal to the interest rate (including any
Applicable Rate) otherwise applicable to such Loan plus 2% per annum, in each
case to the fullest extent permitted by applicable Laws.
"DEFAULTING LENDER" means any Lender that (a) has failed to fund any
portion of the Construction Loans, the Term Loan, the Working Capital Loans,
participations in L/C Obligations or participations in Swing Line Loans required
to be funded by it hereunder within one Business Day of the date required to be
funded by it hereunder, (b) has otherwise failed to pay over to the
Administrative Agent or any other Lender any other amount required to be paid by
it hereunder within one Business Day of the date when due, unless the subject of
a good faith dispute, or (c) has been deemed insolvent or become the subject of
a bankruptcy or insolvency proceeding.
"DESIGNATED JV SUBSIDIARIES" means all Joint Venture Subsidiaries formed
after the Closing Date designated by the Borrower, with the consent of the
Administrative Agent (such consent not to be unreasonably withheld), to receive
the proceeds of Construction Loans, Working Capital Loans, Swing Line Loans or
Letters of Credit from the Borrower following the Closing Date.
"DISPOSITION" or "DISPOSE" means the sale, transfer, license, lease or
other disposition (including any sale and leaseback transaction) of any property
by any Person, including any sale, assignment, transfer or other disposal, with
or without recourse, of any notes or accounts receivable or any rights and
claims associated therewith.
"DISPOSITION PROCEEDS" has the meaning set forth in SECTION 2.07(f).
"DOLLAR" and "$" mean lawful money of the United States.
9
"ELIGIBLE ASSIGNEE" has the meaning set forth in SECTION 11.07(g).
"ENVIRONMENTAL LAWS" means any and all Federal, state, local, and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or governmental
restrictions relating to pollution and the protection of the environment or the
release of any materials into the environment, including those related to
hazardous substances or wastes, air emissions and discharges to waste or public
systems.
"ENVIRONMENTAL LIABILITY" means any liability, contingent or otherwise
(including any liability for damages, costs of environmental remediation, fines,
penalties or indemnities), of the Borrower, any other Loan Party or any of their
respective Subsidiaries directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
exposure to any Hazardous Materials, (d) the release or threatened release of
any Hazardous Materials into the environment or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"EQUIPMENT ADVANCES" means Loans advanced to the Borrower, for the benefit
of the Borrower, any Guarantor or any Term Loan Subsidiary, the proceeds of
which are used to finance or refinance the cost of equipment.
"ERISA" means the Employee Retirement Income Security Act of 1974.
"ERISA AFFILIATE" means any trade or business (whether or not incorporated)
under common control with any Loan Party within the meaning of Section 414(b) or
(c) of the Code (and Sections 414(m) and (o) of the Code for purposes of
provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a Pension Plan;
(b) a withdrawal by any Loan Party or any ERISA Affiliate from a Pension Plan
subject to Section 4063 of ERISA during a plan year in which it was a
substantial employer (as defined in Section 4001(a)(2) of ERISA) or a cessation
of operations that is treated as such a withdrawal under Section 4062(e) of
ERISA; (c) a complete or partial withdrawal by the Borrower or any ERISA
Affiliate from a Multiemployer Plan or notification that a Multiemployer Plan is
in reorganization; (d) the filing of a notice of intent to terminate, the
treatment of a Plan amendment as a termination under Sections 4041 or 4041A of
ERISA, or the commencement of proceedings by the PBGC to terminate a Pension
Plan or Multiemployer Plan; (e) an event or condition which constitutes grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any liability under Title IV of ERISA, other than for PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon any Loan Party
or any ERISA Affiliate.
"EURODOLLAR BASE RATE" means, for such Interest Period:
(a) the rate per annum equal to the rate determined by the
Administrative Agent to be the offered rate that appears on the page of the
Telerate screen (or any successor thereto) that displays an average British
Bankers Association Interest Settlement Rate for deposits in Dollars
10
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(b) if the rate referenced in the preceding clause (a) does not appear
on such page or service or such page or service shall not be available, the rate
per annum equal to the rate determined by the Administrative Agent to be the
offered rate on such other page or other service that displays an average
British Bankers Association Interest Settlement Rate for deposits in Dollars
(for delivery on the first day of such Interest Period) with a term equivalent
to such Interest Period, determined as of approximately 11:00 a.m. (London time)
two Business Days prior to the first day of such Interest Period, or
(c) if the rates referenced in the preceding clauses (a) and (b) are
not available, the rate per annum determined by the Administrative Agent as the
rate of interest at which deposits in Dollars for delivery on the first day of
such Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of America and
with a term equivalent to such Interest Period would be offered by Bank of
America's London Branch to major banks in the London interbank eurodollar market
at their request at approximately 4:00 p.m. (London time) two Business Days
prior to the first day of such Interest Period.
"EURODOLLAR RATE" means for any Interest Period with respect to any
Eurodollar Rate Loan, a rate per annum determined by the Administrative Agent
pursuant to the following formula:
EURODOLLAR BASE RATE
Eurodollar Rate = ------------------------------------
1.00 - Eurodollar Reserve Percentage
"EURODOLLAR RATE LOAN" means a Loan that bears interest at a rate based on
the Eurodollar Rate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any Interest
Period, the reserve percentage (expressed as a decimal, carried out to five
decimal places) in effect on such day, whether or not applicable to any Lender,
under regulations issued from time to time by the FRB for determining the
maximum reserve requirement (including any emergency, supplemental or other
marginal reserve requirement) with respect to Eurocurrency funding (currently
referred to as "Eurocurrency liabilities"). The Eurodollar Rate for each
outstanding Eurodollar Rate Loan shall be adjusted automatically as of the
effective date of any change in the Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" has the meaning set forth in SECTION 9.01.
"EXCESS CASH FLOW" means, for any period of determination, the sum of,
without duplication, (a) Consolidated EBITDA for such period, MINUS (b) income
taxes (to the extent such taxes are paid in cash) and Consolidated Interest
Charges (to the extent paid in cash) and, in each case, deducted in the
determination of Consolidated Net Income for such period, MINUS (c) all
11
principal payments made in respect of Indebtedness during such period (whether
scheduled payments or optional prepayments, but excluding mandatory prepayments
required to be made pursuant to SECTION 2.07(f)) MINUS (d) all Capital
Expenditures made during such period (excluding Capital Expenditures made with
the proceeds of Indebtedness), MINUS, (e) Required Shareholder Distributions,
PLUS or MINUS, as applicable, (f) the net change in the working capital of the
Borrower and its Subsidiaries.
"EXCLUDED GUARANTEES" means the collective reference to the Guarantees in
effect as of the Closing Date and identified on SCHEDULE 1.01 hereto; PROVIDED
that (a) the terms and conditions of each such Guarantee are acceptable to the
Administrative Agent and (b) the aggregate amount of all such Guarantees (which,
for the purposes of this provisions shall be deemed to be equivalent to the
aggregate amount of the underlying Indebtedness Guaranteed thereby) shall not
exceed $7,100,000, as such amount is reduced by repayments of any such
underlying Indebtedness Guaranteed thereby.
"FEDERAL FUNDS RATE" means, for any day, the rate per annum equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank on the Business Day next
succeeding such day; PROVIDED that (a) if such day is not a Business Day, the
Federal Funds Rate for such day shall be such rate on such transactions on the
next preceding Business Day as so published on the next succeeding Business Day,
and (b) if no such rate is so published on such next succeeding Business Day,
the Federal Funds Rate for such day shall be the average rate (rounded upward,
if necessary, to a whole multiple of 1/100 of 1%) charged to Bank of America on
such day on such transactions as determined by the Administrative Agent.
"FEE LETTER" means the letter agreement, dated April 4, 2003, among the
Borrower, the Administrative Agent, the Co-Lead Arrangers and the Syndication
Agent.
"FISCAL QUARTER" means each of the four periods of thirteen (13)
consecutive weeks which make up the Fiscal Year.
"FISCAL YEAR" means the Borrower's Fiscal Year, which is the period of
fifty-two (52) consecutive weeks ending on the fifty-second (52) Tuesday of the
calendar year.
"FOREIGN LENDER" has the meaning set forth in SECTION 11.15(a)(i).
"FRB" means the Board of Governors of the Federal Reserve System of the
United States.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"GOVERNMENTAL APPROVALS" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
12
"GOVERNMENTAL AUTHORITY" means any nation or government, any state or other
political subdivision thereof, any agency, authority, instrumentality,
regulatory body, court, administrative tribunal, central bank or other entity
exercising executive, legislative, judicial, taxing, regulatory or
administrative powers or functions of or pertaining to government.
"GUARANTEE" means, as to any Person, any (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic effect of
guaranteeing any Indebtedness or other obligation payable or performable by
another Person (the "primary obligor") in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or indirect, (i)
to purchase or pay (or advance or supply funds for the purchase or payment of)
such Indebtedness or other obligation, (ii) to purchase or lease property,
securities or services for the purpose of assuring the obligee in respect of
such Indebtedness or other obligation of the payment or performance of such
Indebtedness or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or level of
income or cash flow of the primary obligor so as to enable the primary obligor
to pay such Indebtedness or other obligation, or (iv) entered into for the
purpose of assuring in any other manner the obligee in respect of such
Indebtedness or other obligation of the payment or performance thereof or to
protect such obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness or other
obligation of any other Person, whether or not such Indebtedness or other
obligation is assumed by such Person. The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount of the related
primary obligation, or portion thereof, in respect of which such Guarantee is
made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof as determined by the guaranteeing Person in good
faith. The term "Guarantee" as a verb has a corresponding meaning.
"GUARANTORS" means, collectively, (a) all Designated JV Subsidiaries and
(b) all existing and future direct and indirect wholly-owned Subsidiaries of the
Borrower (other than IP Holdco).
"GUARANTY AGREEMENTS" means the collective reference to the Unlimited
Subsidiary Guaranty and the Limited Subsidiary Guaranty executed, from time to
time, by each of the applicable Guarantors in favor of the Administrative Agent
on behalf of the Lenders.
"HAZARDOUS MATERIALS" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos-containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all obligations of such Person for borrowed money and all
obligations of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
13
(b) all direct or contingent obligations of such Person arising under
letters of credit (including standby and commercial), bankers' acceptances, bank
guaranties, surety bonds and similar instruments;
(c) net obligations of such Person under any Swap Contract;
(d) all obligations of such Person to pay the deferred purchase price
of property or services (other than trade accounts payable in the ordinary
course of business);
(e) indebtedness (excluding prepaid interest thereon) secured by a
Lien on property owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention agreements), whether or
not such indebtedness shall have been assumed by such Person or is limited in
recourse;
(f) capital leases; and
(g) all Guarantees of such Person in respect of any of the foregoing.
For all purposes hereof, the Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.
"INDEMNIFIED LIABILITIES" has the meaning set forth in SECTION 11.05.
"INDEMNITEES" has the meaning set forth in SECTION 11.05.
"INSURANCE AND CONDEMNATION PROCEEDS" has the meaning set forth in SECTION
2.07(f).
"INTANGIBLE ASSETS" means assets that are considered to be intangible
assets under GAAP, including customer lists, goodwill, computer software,
copyrights, trade names, trademarks, patents, franchises, licenses, unamortized
deferred charges, unamortized debt discount and capitalized research and
development costs.
"INTERCOMPANY CONSTRUCTION LOAN NOTE" means an intercompany promissory
note, in substantially the form of EXHIBIT G, made payable to the Borrower by
each Guarantor (excluding Guarantors that are wholly-owned Subsidiaries)
receiving the proceeds of a Construction Loan in a principal amount equal to the
amount of such proceeds. Each Intercompany Construction Loan Note shall (i)
provide for equal monthly amortization payments to be made based on a maximum
fifteen (15) year amortization for amounts advanced to finance or refinance real
property and a maximum seven (7) year amortization for amounts advanced to
finance or refinance equipment, and (ii) contain such other terms satisfactory
to the Borrower and the Administrative Agent.
"INTERCOMPANY NOTE" means, collectively, the Intercompany Construction Loan
Notes and the Intercompany Term Loan Notes.
14
"INTERCOMPANY TERM LOAN NOTE" means an intercompany promissory note, in
substantially the form of EXHIBIT G, made payable to the Borrower by each Term
Loan Subsidiary receiving any proceeds of the Term Loan in a principal amount
equal to the amount of such proceeds. Each Intercompany Term Loan Note shall (i)
provide for equal monthly amortization payments to be made based on a maximum
fifteen (15) year amortization for amounts advanced to finance or refinance real
estate and a maximum seven (7) year amortization for amounts advanced to finance
or refinance equipment, (ii) require that such Term Loan Subsidiary maintain a
Consolidated Fixed Charge Coverage Ratio (calculated based on the financial
performance of such Term Loan Subsidiary only) of not less than 1.20 to 1.00,
(iii) be secured by a first priority perfected lien in favor of the Borrower on
all real and personal property financed or refinanced thereby, and (iv) not
exceed the sum of (A) 80% of the appraised value of the real property being
financed or refinanced thereby, as determined by an appraisal satisfactory to
the Administrative Agent in its sole discretion, and (B) 50% of the net book
value of equipment being refinanced thereby.
"INTEREST PAYMENT DATE" means, (a) as to any Loan other than a Base Rate
Loan, the last day of each Interest Period applicable to such Loan and the
Maturity Date; PROVIDED, HOWEVER, that if any Interest Period for a Eurodollar
Rate Loan exceeds three months, the respective dates that fall every three
months after the beginning of such Interest Period shall also be Interest
Payment Dates; and (b) as to any Base Rate Loan (including a Swing Line Loan),
the last Business Day of each March, June, September and December and the
Maturity Date.
"INTEREST PERIOD" means, as to each Eurodollar Rate Loan, the period
commencing on the date such Eurodollar Rate Loan is disbursed or converted to or
continued as a Eurodollar Rate Loan and ending on the date one, two, three or
six months thereafter, as selected by the Borrower in its Loan Notice; PROVIDED
that:
(a) any Interest Period that would otherwise end on a day that is not
a Business Day shall be extended to the next succeeding Business Day unless such
Business Day falls in another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(b) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
(c) no Interest Period shall extend beyond the Construction Loan
Maturity Date, the Working Capital Loan Maturity Date, or the Term Loan Maturity
Date, as applicable; and
(d) after giving effect to all Borrowings, all conversions of Loans
from one Type to the other, and all continuations of Loans as the same Type,
there shall not be more than five (5) Interest Periods in effect with respect to
Eurodollar Rate Loans.
"INVESTMENT" means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or other
acquisition of capital stock or other securities of another Person, (b) a loan,
advance or capital contribution to, Guarantee or
15
assumption of debt of, or purchase or other acquisition of any other debt or
equity participation or interest in, another Person, including any partnership
or joint venture interest in such other Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of assets of
another Person that constitute a business unit. For purposes of covenant
compliance, the amount of any Investment shall be the amount actually invested,
without adjustment for subsequent increases or decreases in the value of such
Investment.
"IP HOLDCO" means Texas Roadhouse Delaware, LLC, a Delaware limited
liability company, and is a Subsidiary of the Borrower that owns trademarks,
copyrights and patents.
"IP RIGHTS" has the meaning set forth in SECTION 6.18.
"IRS" means the United States Internal Revenue Service.
"JOINT VENTURE SUBSIDIARY" means any direct or indirect non wholly-owned
Subsidiary of the Borrower.
"LAWS" means, collectively, all international, foreign, Federal, state and
local statutes, treaties, rules, guidelines, regulations, ordinances, codes and
administrative or judicial precedents or authorities, including the
interpretation or administration thereof by any Governmental Authority charged
with the enforcement, interpretation or administration thereof, and all
applicable administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case whether or not having the force of law.
"L/C ADVANCE" means, with respect to each Lender, such Lender's funding of
its participation in any L/C Borrowing in accordance with its Working Capital
Loan Commitment Percentage.
"L/C BORROWING" means an extension of credit resulting from a drawing under
any Letter of Credit which has not been reimbursed on the date when made or
refinanced as a Working Capital Borrowing.
"L/C CREDIT EXTENSION" means, with respect to any Letter of Credit, the
issuance thereof or extension of the expiry date thereof, or the renewal or
increase of the amount thereof.
"L/C ISSUER" means Bank of America in its capacity as issuer of Letters of
Credit hereunder, or any successor issuer of Letters of Credit hereunder.
"L/C OBLIGATIONS" means, as at any date of determination, the aggregate
undrawn amount of all outstanding Letters of Credit PLUS the aggregate of all
Unreimbursed Amounts, including all L/C Borrowings.
"LENDER" has the meaning set forth in the introductory paragraph hereto
and, as the context requires, includes the L/C Issuer and the Swing Line Lender.
16
"LENDING OFFICE" means, as to any Lender, the office or offices of such
Lender described as such in such Lender's Administrative Questionnaire, or such
other office or offices as a Lender may from time to time notify the Borrower
and the Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued hereunder. A Letter of
Credit may be a commercial letter of credit or a standby letter of credit.
"LETTER OF CREDIT APPLICATION" means an application and agreement for the
issuance or amendment of a Letter of Credit in the form from time to time in use
by the L/C Issuer.
"LETTER OF CREDIT EXPIRATION DATE" means the day that is thirty (30) days
prior to the Working Capital Maturity Date then in effect (or, if such day is
not a Business Day, the next preceding Business Day).
"LETTER OF CREDIT SUBLIMIT" means an amount equal to the lesser of (a)
$2,000,000 and (b) the Working Capital Commitments. The Letter of Credit
Sublimit is part of, and not in addition to, the Working Capital Commitments.
"LIEN" means any deed of trust, mortgage, pledge, hypothecation,
assignment, deposit arrangement, encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including any conditional sale or other title
retention agreement, and any financing lease having substantially the same
economic effect as any of the foregoing).
"LIMITED SUBSIDIARY GUARANTY" means the collective reference to each
limited recourse guaranty agreement executed, from time to time, by each of the
applicable Guarantors in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of EXHIBIT F-2.
"LOANS" means the collective reference to the Construction Loans, the Term
Loan, the Working Capital Loans and the Swing Line Loans and "Loan" means any of
such Loans.
"LOAN DOCUMENTS" means this Agreement, each Note, each Intercompany Note,
each Security Document, the Fee Letter, and the Guaranty Agreements.
"LOAN NOTICE" means a notice of (a) a Construction Loan Borrowing, (b) a
Working Capital Borrowing, (c) a Term Loan Borrowing, (d) a conversion of Loans
from one Type to the other, or (e) a continuation of Eurodollar Rate Loans,
pursuant to SECTION 2.04, which, if in writing, shall be substantially in the
form of EXHIBIT A.
"LOAN OUTSTANDINGS" means the aggregate Outstanding Amount of all Loans.
"LOAN PARTIES" means, collectively, the Borrower, each Guarantor and each
Term Loan Subsidiary.
"MATERIAL ADVERSE EFFECT" means (a) a material adverse change in, or a
material adverse effect upon, the operations, business, assets, liabilities
(actual or contingent) or financial condition of the Borrower or the Borrower
and its Subsidiaries taken as a whole; (b) a material impairment of the ability
of any Loan Party to perform its obligations under any Loan Document
17
or any Material Contract, in each case to which it is a party; or (c) a material
adverse effect upon the legality, validity, binding effect or enforceability
against any Loan Party of any Loan Document to which it is a party.
"MATERIAL CONTRACT" means (a) any contract or other agreement, written or
oral, of the Borrower or any of its Subsidiaries involving monetary liability of
or to any such Person in an amount in excess of the Threshold Amount per annum,
or (b) any other contract or agreement, written or oral, of the Borrower or any
of its Subsidiaries the failure to comply with which could reasonably be
expected to have a Material Adverse Effect.
"MONTHLY REPORTING CERTIFICATE" has the meaning set forth in SECTION
7.02(f).
"MULTIEMPLOYER PLAN" means any employee benefit plan of the type described
in Section 4001(a)(3) of ERISA, to which the Borrower or any ERISA Affiliate
makes or is obligated to make contributions, or during the preceding five plan
years, has made or been obligated to make contributions.
"NET CASH PROCEEDS" means:
(a) with respect to any incurrence of any Indebtedness by the Borrower
or any Subsidiary, the aggregate amount of all cash received by the Borrower or
any Subsidiary in respect of such Indebtedness, net of all reasonable fees,
discounts, commissions and expenses incurred by the Borrower or such Subsidiary
in connection therewith.
(b) with respect to the sale of any asset by the Borrower or any
Subsidiary, the excess, if any, of (i) the sum of cash and cash equivalents
received in connection with such sale (including any cash received by way of
deferred payment pursuant to, or by monetization of, a note receivable or
otherwise, but only as and when so received) over (ii) the sum of (A) the
principal amount of any Indebtedness that is secured by such asset and that is
required to be repaid in connection with the sale thereof (other than
Indebtedness under the Loan Documents), (B) the out-of-pocket expenses incurred
by the Borrower or any Subsidiary in connection with such sale and (C) income
taxes reasonably estimated to be actually payable within two years of the date
of the relevant asset sale as a result of any gain recognized in connection
therewith;
(c) with respect to the sale of any capital stock or other equity
interest by the Borrower or any Subsidiary, the excess of (i) the sum of the
cash and cash equivalents received in connection with such sale over (ii) the
underwriting discounts and commissions, and other out-of-pocket expenses,
incurred by the Borrower or such Subsidiary in connection with such sale; and
(d) with respect to any payment under an insurance policy or in
connection with a condemnation proceeding, the amount of cash proceeds received
by the Borrower or any Subsidiary from an insurance company or Governmental
Authority, as applicable, net of all expenses of collection.
"NEW UNITS" shall mean, collectively, each particular Restaurant whose
ownership and operation by the Borrower or its Subsidiaries started on a date
after the Closing Date.
18
"NOTE" means a promissory note made by the Borrower in favor of a Lender
evidencing Loans made by such Lender, substantially in the form of EXHIBIT C.
"OBLIGATIONS" means (a) all advances to, and debts, liabilities,
obligations, covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan or Letter of Credit, whether
direct or indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or against any
Loan Party or any Affiliate thereof of any proceeding under any Debtor Relief
Laws naming such Person as the debtor in such proceeding, regardless of whether
such interest and fees are allowed claims in such proceeding and (b) all
existing or future payment and other obligations owing by the Borrower under any
Swap Contract (which such Swap Contract is permitted hereunder) entered into
with any Person that is a Lender or an Affiliate thereof at the time such Swap
Contract is entered into.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any corporation, the
certificate or articles of incorporation and the bylaws (or equivalent or
comparable constitutive documents with respect to any non-U.S. jurisdiction);
(b) with respect to any limited liability company, the certificate or articles
of formation or organization and operating agreement; and (c) with respect to
any partnership, joint venture, trust or other form of business entity, the
partnership, joint venture or other applicable agreement of formation or
organization and any agreement, instrument, filing or notice with respect
thereto filed in connection with its formation or organization with the
applicable Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of formation or
organization of such entity.
"OUTSTANDING AMOUNT" means (a) with respect to Construction Loans, the
Working Capital Loans, the Term Loan, and Swing Line Loans on any date, the
aggregate outstanding principal amount thereof after giving effect to any
borrowings and prepayments or repayments of Construction Loans, the Working
Capital Loans, the Term Loan and Swing Line Loans, as the case may be, occurring
on such date; and (b) with respect to any L/C Obligations on any date, the
amount of such L/C Obligations on such date after giving effect to any L/C
Credit Extension occurring on such date and any other changes in the aggregate
amount of the L/C Obligations as of such date, including as a result of any
reimbursements of outstanding unpaid drawings under any Letters of Credit or any
reductions in the maximum amount available for drawing under Letters of Credit
taking effect on such date.
"PARTICIPANT" has the meaning set forth in SECTION 11.07(d).
"PBGC" means the Pension Benefit Guaranty Corporation.
"PENSION PLAN" means any "employee pension benefit plan" (as such term is
defined in Section 3(2) of ERISA), other than a Multiemployer Plan, that is
subject to Title IV of ERISA and is sponsored or maintained by the Borrower or
any ERISA Affiliate or to which the Borrower or any ERISA Affiliate contributes
or has an obligation to contribute, or in the case of a multiple employer or
other plan described in Section 4064(a) of ERISA, has made contributions at any
time during the immediately preceding five plan years.
19
"PERMITTED ACQUISITION" has the meaning set forth in SECTION 8.02(g).
"PERMITTED LIENS" means the Liens permitted pursuant to SECTION 8.01.
"PERMITTED EQUITYHOLDERS" means the collective reference to (a) W. Xxxx
Xxxxxx, (b) Xx. Xxxx X. Xxxxxx, (c) Xx. Xxxxxxxx Xxxxx, (d) Xx. Xxxx Xxxxx, and
(e) with respect to each of the foregoing individuals, any Persons which are
formed for estate planning or charitable purposes and which are beneficially
owned or controlled by, such individual and/or such individual's estate and/or
any of such individual's heirs or immediate family members.
"PERSON" means any natural person, corporation, limited liability company,
trust, joint venture, association, company, partnership, Governmental Authority
or other entity.
"PLAN" means any "employee benefit plan" (as such term is defined in
Section 3(3) of ERISA) established by the Borrower or, with respect to any such
plan that is subject to Section 412 of the Code or Title IV of ERISA, any ERISA
Affiliate.
"REALLOCATED AMOUNT" has the meaning set forth in SECTION 2.10.
"REGISTER" has the meaning set forth in SECTION 11.07(c).
"REPORTABLE EVENT" means any of the events set forth in Section 4043(c) of
ERISA, other than events for which the 30 day notice period has been waived.
"REQUEST FOR CREDIT EXTENSION" means (a) with respect to a Borrowing,
conversion or continuation of Construction Loans, Working Capital Loans or the
Term Loan, a Loan Notice, (b) with respect to an L/C Credit Extension, a Letter
of Credit Application, and (c) with respect to a Swing Line Loan, a Swing Line
Loan Notice.
"REQUIRED JOINT VENTURE DISTRIBUTIONS" means, with respect to any Joint
Venture Subsidiary, required monthly distributions of the maximum amount of "net
cash flow" (as defined in the applicable Organizational Documents of such Joint
Venture Subsidiary) to its equity holders in accordance with the terms and
conditions of the applicable Organizational Documents of such Joint Venture
Subsidiary.
"REQUIRED LENDERS" means, as of any date of determination, at least three
(3) Lenders holding more than fifty percent (50%) of the sum of (a) the
Construction Loan Commitments (or the Construction Loan Outstandings if the
Construction Loan Commitments have been terminated), (b) the Working Capital
Loan Commitments (or the Working Capital Loan Outstandings if the Working
Capital Commitments have been terminated (with the aggregate amount of each
Lender's risk participation and funded participation in L/C Obligations and
Swing Line Loans being deemed "held" by such Lender for purposes of this
definition)), and (c) the Term Loans; PROVIDED that the Commitment of, and the
portion of the Construction Loan Outstandings, Working Capital Outstandings, or
the Term Loan, as applicable, held or deemed held by, any Defaulting Lender
shall be excluded for purposes of making a determination of Required Lenders;
PROVIDED, FURTHER, that if any time there are less than three (3) Lenders,
Required Lenders shall mean all Lenders.
20
"REQUIRED SHAREHOLDER DISTRIBUTIONS" means the minimum of quarterly
distributions to the shareholders of the Borrower required to be made pursuant
to the Reorganization Agreement; PROVIDED that the aggregate amount of
distributions for any Fiscal Quarter shall not exceed an amount equal to fifty
percent (50%) of the "net cash flow" (as defined in the Amended and Restated
Operating Agreement of the Borrower, dated July 12, 2001, as amended) of the
Borrower for such Fiscal Quarter.
"REORGANIZATION AGREEMENT" means the Reorganization Agreement, dated March
31, 1997, between W. Xxxx Xxxxxx, Xx. Xxxx X. Xxxxxx, Xx. Xxxxxxxx Xxxxx, Xx.
Xxxx Xxxxx and the Borrower.
"RESPONSIBLE OFFICER" means the chief executive officer, president, chief
financial officer, secretary or general counsel of a Loan Party. Any document
delivered hereunder that is signed by a Responsible Officer of a Loan Party
shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Loan Party and
such Responsible Officer shall be conclusively presumed to have acted on behalf
of such Loan Party.
"RESTAURANT" means a particular "Texas Roadhouse" restaurant at a
particular location that is owned by the Borrower or any Subsidiaries thereof.
"RESTRICTED PAYMENT" means any dividend or other distribution (whether in
cash, securities or other property) with respect to any capital stock or other
equity interest of the Borrower or any Subsidiary, or any payment (whether in
cash, securities or other property), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, acquisition,
cancellation or termination of any such capital stock or other equity interest
or of any option, warrant or other right to acquire any such capital stock or
other equity interest.
"SEC" means the Securities and Exchange Commission, or any Governmental
Authority succeeding to any of its principal functions.
"SECURITY DOCUMENTS" means the Security Documents described on SCHEDULE
3.07 and any documents creating a Lien for the benefit of the Administrative
Agent executed by any Loan Party after the Closing Date.
"SHAREHOLDERS' EQUITY" means, as of any date of determination, consolidated
shareholders' equity of the Borrower and its Subsidiaries as of that date
determined in accordance with GAAP.
"SOLVENT" means, as to the Borrower and its Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business
and transactions and all business and transactions in which it is about to
engage and is able to pay its debts as they mature, (b) owns property having a
value, both at fair valuation and at present fair saleable value, greater than
the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its
ability to pay such debts or liabilities as they mature.
21
"SUBSIDIARY" of a Person means a corporation, partnership, joint venture,
limited liability company or other business entity of which a majority of the
shares of securities or other interests having ordinary voting power for the
election of directors or other governing body (other than securities or
interests having such power only by reason of the happening of a contingency)
are at the time beneficially owned or controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person. Unless otherwise
specified, all references herein to a "Subsidiary" or to "Subsidiaries" shall
refer to a Subsidiary or Subsidiaries of the Borrower.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts (which may include a Lender or any Affiliate of a
Lender).
"SWING LINE" means the revolving credit facility made available by the
Swing Line Lender pursuant to SECTION 2.06.
"SWING LINE BORROWING" means a borrowing of a Swing Line Loan pursuant to
SECTION 2.06.
"SWING LINE LENDER" means Bank of America in its capacity as provider of
Swing Line Loans, or any successor swing line lender hereunder.
"SWING LINE LOAN" has the meaning set forth in SECTION 2.06(a).
"SWING LINE LOAN NOTICE" means a notice of a Swing Line Borrowing pursuant
to SECTION 2.06(b), which, if in writing, shall be substantially in the form of
EXHIBIT B.
22
"SWING LINE SUBLIMIT" means an amount equal to the lesser of (a) $2,000,000
and (b) the Working Capital Commitments. The Swing Line Sublimit is part of, and
not in addition to, the Working Capital Commitments.
"SYNDICATION AGENT" means National City Bank of Kentucky.
"TAX DISTRIBUTIONS" has the meaning set forth in SECTION 8.06(d).
"TERM LOAN" shall have the meaning assigned to such term in SECTION 2.03.
"TERM LOAN BORROWING" means a borrowing consisting of simultaneous Term
Loans of the same Type and, in the case of Eurodollar Rate Loans, having the
same Interest Period made by each of the Lenders pursuant to SECTION 2.03.
"TERM LOAN COMMITMENT" means, as to each Lender, its obligation to make its
portion of the Term Loan in accordance with the provisions of SECTION 2.03(a) in
an aggregate principal amount at any one time outstanding not to exceed the
amounts set forth opposite such Lender's name on SCHEDULE 2.01 or in the
Assignment and Assumption pursuant to which such Lender becomes a party hereto,
as applicable, as such amount may be adjusted from time to time in accordance
with this Agreement. "TERM LOAN COMMITMENTS" means the aggregate Term Loan
Commitment of all Lenders. On the Closing Date, the Term Loan Commitments shall
be $16,350,000.
"TERM LOAN MATURITY DATE" means July 16, 2006.
"TERM LOAN PERCENTAGE" means, as to each Lender (a) prior to making the
Term Loan, a fraction (expressed as a percentage, carried out to the ninth
decimal place), the numerator of which is the amount of the Term Loan Commitment
of such Lender at such time and the denominator of which is the amount of the
Term Loan Commitments at such time and (b) after the making of the Term Loan,
fraction (expressed as a percentage, carried out to the ninth decimal place),
the numerator of which is the outstanding principal balance of the Term Loan of
such Lender and the denominator of which is the aggregate outstanding principal
balance of the Term Loan of all the Lenders. The initial Term Loan Percentage of
each Lender is set forth opposite the name of such Lender on SCHEDULE 2.01 or in
the Assignment and Assumption pursuant to which such Lender becomes a party
hereto, as applicable.
"TERM LOAN SUBSIDIARY" means all Joint Venture Subsidiaries designated by
the Borrower, with the consent of the Administrative Agent, to receive the
proceeds of the Term Loan from the Borrower on the Closing Date.
"THRESHOLD AMOUNT" means $2,500,000.
"TYPE" means, with respect to a Construction Loan, Working Capital Loan or
Term Loan, its character as a Base Rate Loan or a Eurodollar Rate Loan.
"UCC" means, subject to SECTION 1.04, the Uniform Commercial Code in effect
in the State of
North Carolina, as amended or modified from time to time.
23
"UNAUDITED QUARTERLY FINANCIAL STATEMENTS" has the meaning set forth in
SECTION 5.01(f).
"UNFUNDED PENSION LIABILITY" means the excess of a Pension Plan's benefit
liabilities under Section 4001(a)(16) of ERISA, over the current value of that
Pension Plan's assets, determined in accordance with the assumptions used for
funding the Pension Plan pursuant to Section 412 of the Code for the applicable
plan year.
"UNLIMITED SUBSIDIARY GUARANTY" means the collective reference to each
unlimited guaranty agreement executed, from time to time, by each of the
applicable Guarantors in favor of the Administrative Agent on behalf of the
Lenders, substantially in the form of EXHIBIT F-1.
"UNITED STATES" and "U.S." mean the United States of America.
"UNREIMBURSED AMOUNT" has the meaning set forth in SECTION 2.05(c)(i).
"WORKING CAPITAL BORROWING" means a borrowing consisting of simultaneous
Working Capital Loans of the same Type and, in the case of Eurodollar Rate
Loans, having the same Interest Period made by each of the Lenders pursuant to
SECTION 2.02.
"WORKING CAPITAL BORROWING LIMIT" means, as of any date of determination,
the lesser of (a) the Working Capital Commitments and (b) 120% of the
Construction-in-Progress Amount.
"WORKING CAPITAL COMMITMENT" means, as to each Lender, its obligation to
(a) to make Working Capital Loans in accordance with the provisions of SECTION
2.02(a), (b) to purchase participations in L/C Obligations and (c) to purchase
participations in Swing Line Loans, in an aggregate principal amount at any one
time outstanding not to exceed the amounts set forth opposite such Lender's name
on SCHEDULE 2.01 or in the Assignment and Assumption pursuant to which such
Lender becomes a party hereto, as applicable, as such amount may be adjusted
from time to time in accordance with this Agreement. "WORKING CAPITAL
COMMITMENTS" means the aggregate Working Capital Commitments of all Lenders. On
the Closing Date the Working Capital Commitments shall be $10,000,000; PROVIDED,
HOWEVER, that such amount is subject to change pursuant to SECTION 2.10.
"WORKING CAPITAL LINE" means the working capital line under the revolving
credit facility made available by the Lenders pursuant to SECTION 2.02.
"WORKING CAPITAL LOAN" has the meaning set forth in SECTION 2.02(a).
"WORKING CAPITAL LOAN COMMITMENT PERCENTAGE" means, as to each Lender at
any time, a fraction (expressed as a percentage, carried out to the ninth
decimal place), the numerator of which is the amount of the Working Capital
Commitment of such Lender at such time and the denominator of which is the
amount of the Working Capital Commitments at such time; PROVIDED that if the
commitment of each Lender to make Loans has been terminated pursuant to SECTION
9.02, then the Working Capital Commitment Percentage of each Lender shall be
determined based on the Working Capital Commitment Percentage of such Lender
immediately prior to such termination and after giving effect to any subsequent
assignments made pursuant to the terms hereof. The initial Working Capital
Commitment Percentage of each Lender is set forth opposite
24
the name of such Lender on SCHEDULE 2.01 or in the Assignment and Assumption
pursuant to which such Lender becomes a party hereto, as applicable.
"WORKING CAPITAL LOAN MATURITY DATE" means July 16, 2006.
"WORKING CAPITAL OUTSTANDINGS" means the aggregate Outstanding Amount of
all Working Capital Loans, Swing Line Loans and L/C Obligations.
1.02 OTHER INTERPRETIVE PROVISIONS.
With reference to this Agreement and each other Loan Document, unless
otherwise specified herein or in such other Loan Document:
(a) The meanings of defined terms are equally applicable to the
singular and plural forms of the defined terms.
(b) (i) The words "HEREIN," "HERETO," "HEREOF" and "HEREUNDER" and
words of similar import when used in any Loan Document shall refer to such Loan
Document as a whole and not to any particular provision thereof.
(ii) Article, Section, Exhibit and Schedule references are to
the Loan Document in which such reference appears.
(iii) The term "INCLUDING" is by way of example and not
limitation.
(iv) The term "DOCUMENTS" includes any and all instruments,
documents, agreements, certificates, notices, reports, financial statements and
other writings, however evidenced, whether in physical or electronic form.
(c) In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including;" the words "to"
and "until" each mean "to but excluding;" and the word "through" means "to and
including."
(d) Section headings herein and in the other Loan Documents are
included for convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan Document.
1.03 ACCOUNTING TERMS. (a) All accounting terms not specifically or
completely defined herein shall be construed in conformity with, and all
financial data (including financial ratios and other financial calculations)
required to be submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect from time to
time, applied in a manner consistent with that used in preparing the Audited
Financial Statements, EXCEPT as otherwise specifically prescribed herein.
(b) If at any time any change in GAAP would affect the computation of
any financial ratio or requirement set forth in any Loan Document, and either
the Borrower or the Required Lenders shall so request, the Administrative Agent,
the Lenders and the Borrower shall negotiate in good faith to amend such ratio
or requirement to preserve the original intent thereof in light of such change
in GAAP (subject to the approval of the Required Lenders); PROVIDED THAT, until
so amended, (i) such ratio or requirement shall continue to be computed in
accordance with GAAP
25
prior to such change therein and (ii) the Borrower shall provide to the
Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth
a reconciliation between calculations of such ratio or requirement made before
and after giving effect to such change in GAAP.
1.04 UCC TERMS. Terms defined in the UCC in effect on the Closing Date
and not otherwise defined herein shall, unless the context otherwise indicates,
have the meanings provided by those definitions. Subject to the foregoing, the
term "UCC" refers, as of any date of determination, to the UCC then in effect.
1.05 ROUNDING. Any financial ratios required to be maintained by the
Borrower pursuant to this Agreement shall be calculated by dividing the
appropriate component by the other component, carrying the result to one place
more than the number of places by which such ratio is expressed herein and
rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
1.06 REFERENCES TO AGREEMENTS AND LAWS. Unless otherwise expressly
provided herein, (a) references to Organization Documents, agreements (including
the Loan Documents) and other contractual instruments shall be deemed to include
all subsequent amendments, restatements, extensions, supplements and other
modifications thereto, but only to the extent that such amendments,
restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Law shall include all statutory
and regulatory provisions consolidating, amending, replacing, supplementing or
interpreting such Law.
1.07 TIMES OF DAY. Unless otherwise specified, all references herein to
times of day shall be references to Eastern time (daylight or standard, as
applicable).
1.08 LETTER OF CREDIT AMOUNTS. Unless otherwise specified, all
references herein to the amount of a Letter of Credit at any time shall be
deemed to mean the maximum face amount of such Letter of Credit after giving
effect to all increases thereof contemplated by such Letter of Credit or the
Letter of Credit Application therefor, whether or not such maximum face amount
is in effect at such time.
ARTICLE II.
THE COMMITMENTS AND CREDIT EXTENSIONS
2.01 CONSTRUCTION LOANS. (a) CONSTRUCTION LOAN COMMITMENT. Subject to
the terms and conditions set forth herein, each Lender severally agrees to make
revolving construction loans (each such loan, a "CONSTRUCTION LOAN") to the
Borrower, for the benefit of the Borrower or any Guarantor, from time to time,
on any Business Day during the Availability Period, in an aggregate amount not
to exceed at any time outstanding the amount of such Lender's Construction Loan
Commitment; PROVIDED, HOWEVER, that after giving effect to any Construction Loan
Borrowing, (i) the Construction Loan Outstandings shall not exceed the total
amount of the Construction Loan Commitments and (ii) the aggregate Outstanding
Amount of the Construction Loans of any Lender, shall not exceed such Lender's
Construction Loan Commitment. Within the limits of each Lender's Construction
Loan Commitment, and subject
26
to the other terms and conditions hereof, the Borrower may borrow under this
SECTION 2.01, prepay under SECTION 2.07, and reborrow under this SECTION 2.01.
Construction Loans may be Base Rate Loans or Eurodollar Rate Loans, as further
provided herein.
(b) BORROWING PROCEDURES.
(i) Each Construction Loan Borrowing shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to the requested date of any
Construction Loan Borrowing of Eurodollar Rate Loans and (B) on the requested
date of any Construction Loan Borrowing of Base Rate Loans. Each telephonic
notice by the Borrower pursuant to this SECTION 2.01(b) must be confirmed
promptly by delivery to the Administrative Agent of a written Loan Notice,
appropriately completed and signed by a Responsible Officer of the Borrower.
Each Construction Loan Borrowing of Eurodollar Rate Loans shall be in a
principal amount of $1,000,000 or a whole multiple of $1,000,000 in excess
thereof. Each Construction Loan Borrowing of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in excess thereof.
Each Loan Notice (whether telephonic or written) shall specify (A) the requested
date of the Construction Loan Borrowing (which shall be a Business Day), (B) the
principal amount of Construction Loans to be borrowed, (C) the Type of
Construction Loans to be borrowed, and (D) if applicable, the duration of the
Interest Period with respect thereto. If the Borrower fails to specify a Type of
Construction Loan in a Loan Notice, then the applicable Construction Loans shall
be made as Base Rate Loans. If the Borrower requests a Borrowing of Eurodollar
Rate Loans in any such Loan Notice, but fails to specify an Interest Period, it
will be deemed to have specified an Interest Period of one month.
(ii) Following receipt of a Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Construction Loan
Commitment Percentage of the applicable Construction Loans. Each Lender shall
make the amount of its Construction Loan available to the Administrative Agent
in immediately available funds at the Administrative Agent's Office not later
than 1:00 p.m. on the Business Day specified in the applicable Loan Notice. Upon
satisfaction of the applicable conditions set forth in SECTIONS 5.02 and 5.03
(and, if such Construction Loan Borrowing is the initial Credit Extension,
SECTION 5.01), the Administrative Agent shall make all funds so received
available to the Borrower in like funds as received by the Administrative Agent
either by (A) crediting the account of the Borrower on the books of Bank of
America with the amount of such funds or (B) wire transfer of such funds to the
deposit account of the Borrower identified in the most recent notice
substantially in the form of EXHIBIT I hereto (a "NOTICE OF ACCOUNT
DESIGNATION") delivered by the Borrower to the Administrative Agent or as may be
otherwise agreed upon by the Borrower and the Administrative Agent from time to
time.
(iii) The Administrative Agent shall promptly notify the
Borrower and the Lenders of the interest rate applicable to any Interest Period
for Construction Loans bearing interest based upon the Eurodollar Rate upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
At any time that Construction Loans bearing interest based upon the Base Rate
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders
27
of any change in Bank of America's prime rate used in determining the Base Rate
promptly following the public announcement of such change.
(iv) During the existence of a Default, no Construction Loans
may be requested as Eurodollar Rate Loans without the consent of the Required
Lenders.
2.02 WORKING CAPITAL LOANS.
(a) THE WORKING CAPITAL LINE. Subject to the terms and conditions set
forth herein, each Lender severally agrees to make working capital loans (each
such loan, a "WORKING CAPITAL LOAN") to the Borrower, for the benefit of the
Borrower or any Guarantor, from time to time, on any Business Day during the
Availability Period, in an aggregate amount not to exceed at any time
outstanding the amount of such Lender's Working Capital Commitment; PROVIDED,
HOWEVER, that after giving effect to any Working Capital Borrowing, (i) the
Working Capital Outstandings shall not exceed the total amount of the Working
Capital Borrowing Limit, (ii) the aggregate Outstanding Amount of the Working
Capital Loans of such Lender, PLUS such Lender's Working Capital Loan Commitment
Percentage of the Outstanding Amount of all L/C Obligations, PLUS such Lender's
Working Capital Loan Commitment Percentage of the Outstanding Amount of all
Swing Line Loans shall not exceed such Lender's Working Capital Loan Commitment.
Within the limits of each Lender's Working Capital Commitment, and subject to
the other terms and conditions hereof, the Borrower may borrow under this
SECTION 2.02, prepay under SECTION 2.07, and reborrow under this SECTION 2.02.
Working Capital Loans may be Base Rate Loans or Eurodollar Rate Loans, as
further provided herein.
(b) BORROWING PROCEDURES.
(i) Each Working Capital Borrowing shall be made upon the
Borrower's irrevocable notice to the Administrative Agent, which may be given by
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. (A) three Business Days prior to the requested date of any
Working Capital Borrowing of Eurodollar Rate Loans, and (B) on the requested
date of any Working Capital Borrowing of Base Rate Loans. Each telephonic notice
by the Borrower pursuant to this SECTION 2.02(b) must be confirmed promptly by
delivery to the Administrative Agent of a written Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Each Working
Capital Borrowing of Eurodollar Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $500,000 in excess thereof. Except as provided
in SECTION 2.05(c) and 2.06(b), each Working Capital Borrowing of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof. Each Loan Notice (whether telephonic or written) shall
specify (A) the requested date of the Working Capital Borrowing (which shall be
a Business Day), (B) the principal amount of Working Capital Loans to be
borrowed, (C) the Type of Working Capital Loans to be borrowed, and (D) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower fails to specify a Type of Working Capital Loan in a Loan Notice, then
the applicable Working Capital Loans shall be made as Base Rate Loans. If the
Borrower requests a Borrowing of Eurodollar Rate Loans in any such Loan Notice,
but fails to specify an Interest Period, it will be deemed to have specified an
Interest Period of one month.
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(ii) Following receipt of a Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Working Capital
Loan Commitment Percentage of the applicable Working Capital Loans. Each Lender
shall make the amount of its Working Capital Loan available to the
Administrative Agent in immediately available funds at the Administrative
Agent's Office not later than 1:00 p.m. on the Business Day specified in the
applicable Loan Notice. Upon satisfaction of the applicable conditions set forth
in SECTIONS 5.02 and 5.03 (and, if such Working Capital Borrowing is the initial
Credit Extension, SECTION 5.01), the Administrative Agent shall make all funds
so received available to the Borrower in like funds as received by the
Administrative Agent either by (A) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (B) wire transfer of
such funds to the deposit account of the Borrower identified in the most recent
Notice of Account Designation delivered by the Borrower to the Administrative
Agent or as may be otherwise agreed upon by the Borrower and the Administrative
Agent from time to time; PROVIDED, HOWEVER, that if, on the date the Loan Notice
with respect to such Working Capital Borrowing is given by the Borrower, there
are L/C Borrowings outstanding, then the proceeds of such Working Capital
Borrowing shall be applied, FIRST, to the payment in full of any such L/C
Borrowings and SECOND, to the Borrower as provided above.
(iii) The Administrative Agent shall promptly notify the
Borrower and the Lenders of the interest rate applicable to any Interest Period
for Working Capital Loans bearing interest based upon the Eurodollar Rate upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
At any time that Working Capital Loans bearing interest based upon the Base Rate
are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
(iv) During the existence of a Default, no Working Capital
Loans may be requested as Eurodollar Rate Loans without the consent of the
Required Lenders.
2.03 TERM LOAN.
(a) TERM COMMITMENT. Subject to the terms and conditions set forth
herein, each Lender severally agrees to make available to the Borrower, for the
benefit of the Term Loan Subsidiaries, on the Closing Date such Lender's Term
Loan Percentage of a term loan (the "TERM LOAN"; each component thereof may be
referred to herein as a "TERM LOAN") in an aggregate principal amount less than
or equal to the Term Loan Commitments; PROVIDED, HOWEVER, that after giving
effect to any Term Loan Borrowing, the aggregate outstanding principal amount of
the Term Loans shall not exceed the total amount of the Term Loan Commitments
Loans. The Term Loan may consist of Base Rate Loans or Eurodollar Rate Loans, or
a combination thereof, as the Borrower may request. Amounts repaid on the Term
Loan may not be reborrowed.
(b) BORROWING PROCEDURES.
(i) The Borrower shall give irrevocable notice to the
Administrative Agent, which may be given by telephone, not later than 11:00 a.m.
(or such later time as the Administrative Agent and the Borrower shall agree)
(A) on the Closing Date, with respect to the
29
portion of the Term Loan initially consisting of a Base Rate Loan, or (B) on the
third Business Day prior to the Closing Date, with respect to the portion of the
Term Loan initially consisting of one or more Eurodollar Rate Loans. Each Term
Loan Borrowing consisting of Eurodollar Rate Loans shall be in a principal
amount of $1,000,000 or a whole multiple of $1,000,000 in excess thereof. Each
portion of the Term Loan consisting of Base Rate Loans shall be in a principal
amount of $500,000 or a whole multiple of $100,000 in excess thereof. Such Loan
Notice shall be irrevocable and shall specify (A) that the funding of the Term
Loan is requested, (B) whether the funding of the Term Loan shall be comprised
of Base Rate Loans, Eurodollar Rate Loans or a combination thereof, and (C) if
applicable, the duration of the Interest Period with respect thereto. If the
Borrower shall fail to deliver such Loan Notice to the Administrative Agent by
11:00 a.m. on the third Business Day prior to the Closing Date, then the full
amount of the Term Loan shall be disbursed on the Closing Date as a Base Rate
Loan. If the Borrower fails to specify a Type of Loan in a Loan Notice, then the
Term Loan shall be made as a Base Rate Loan. If the Borrower requests that the
Term Loan or a portion thereof consist of Eurodollar Rate Loans in any such Loan
Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month. Each telephonic notice by the
Borrower pursuant to this SECTION 2.03(b) must be confirmed promptly by delivery
to the Administrative Agent of a written Loan Notice, appropriately completed
and signed by a Responsible Officer of the Borrower.
(ii) Following receipt of a Loan Notice, the Administrative
Agent shall promptly notify each Lender of the amount of its Term Loan
Percentage of the Term Loan. Each Lender shall make the amount of the Term Loan
to be made by such Lender available to the Administrative Agent in immediately
available funds at the Administrative Agent's Office not later than 1:00 p.m. on
the Closing Date. Upon satisfaction of the applicable conditions set forth in
SECTIONS 5.01 and 5.03, the Administrative Agent shall make all funds so
received available to the Borrower in like funds as received by the
Administrative Agent either by (A) crediting the account of the Borrower on the
books of Bank of America with the amount of such funds or (B) wire transfer of
such funds to the deposit account of the Borrower identified in the most recent
Notice of Account Designation delivered by the Borrower to the Administrative
Agent or as may be otherwise agreed upon by the Borrower and the Administrative
Agent from time to time.
(iii) The Administrative Agent shall promptly notify the
Borrower and the Lenders of the interest rate applicable to any Interest Period
for Term Loans bearing interest based upon Eurodollar Rate Loans upon
determination of such interest rate. The determination of the Eurodollar Rate by
the Administrative Agent shall be conclusive in the absence of manifest error.
At any time that any portion of the Term Loans bearing interest based upon Base
Rate are outstanding, the Administrative Agent shall notify the Borrower and the
Lenders of any change in Bank of America's prime rate used in determining the
Base Rate promptly following the public announcement of such change.
2.04 CONVERSIONS AND CONTINUATIONS OF CONSTRUCTION LOANS, WORKING
CAPITAL LOANS AND TERM LOAN.
(a) The Borrower shall have the option to convert Loans (other than
Swing Line Loans) from one Type to the other and to continue Eurodollar Rate
Loans. Each conversion of Loans from one Type to the other, and each
continuation of Eurodollar Rate Loans shall be made upon the Borrower's
irrevocable notice to the Administrative Agent, which may be given by
30
telephone. Each such notice must be received by the Administrative Agent not
later than 11:00 a.m. three Business Days prior to the requested date of any
conversion to or continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans. Each telephonic notice by the Borrower
pursuant to this SECTION 2.04(a) must be confirmed promptly by delivery to the
Administrative Agent of a written Loan Notice, appropriately completed and
signed by a Responsible Officer of the Borrower. Each conversion to or
continuation of Eurodollar Rate Loans which are (i) Construction Loans and Term
Loans, shall be in a principal amount of $1,000,000 or a whole multiple of
$1,000,000 in excess thereof and (ii) Working Capital Loans, shall be in a
principal amount of $500,000 or a whole multiple of $500,000 in excess thereof.
Each conversion to Base Rate Loans shall be in a principal amount of $500,000 or
a whole multiple of $100,000 in excess thereof. Each Loan Notice (whether
telephonic or written) shall specify (i) whether the Borrower is requesting a
conversion of Construction Loans, Working Capital Loans or a Term Loan, as
applicable, from one Type to the other, or a continuation of Eurodollar Rate
Loans, (ii) the requested date of the conversion or continuation (which shall be
a Business Day), (iii) the principal amount of Loans to be converted or
continued, (iv) the Type of Loans to which existing Loans are to be converted,
and (v) if applicable, the duration of the Interest Period with respect thereto.
If the Borrower fails to give a timely notice requesting a conversion or
continuation of Eurodollar Rate Loans, then the applicable Eurodollar Rate Loans
shall be converted to Base Rate Loans. Any such automatic conversion to Base
Rate Loans shall be effective as of the last day of the Interest Period then in
effect with respect to the applicable Eurodollar Rate Loans. If the Borrower
requests a conversion to or continuation of Eurodollar Rate Loans in any such
Loan Notice, but fails to specify an Interest Period, it will be deemed to have
specified an Interest Period of one month.
(b) Following receipt of a Loan Notice, the Administrative Agent shall
promptly notify each Lender. If no timely notice of a conversion or continuation
is provided by the Borrower, the Administrative Agent shall notify each Lender
of the details of any automatic conversion to Base Rate Loans described in the
preceding subsection.
(c) Except as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period for such
Eurodollar Rate Loan. During the existence of a Default, no Loans may be
converted to or continued as Eurodollar Rate Loans without the consent of the
Required Lenders.
2.05 LETTERS OF CREDIT.
(a) LETTER OF CREDIT COMMITMENT.
(i) Subject to the terms and conditions set forth herein, (A)
the L/C Issuer agrees, in reliance upon the agreements of the other Lenders set
forth in this SECTION 2.05, (1) from time to time on any Business Day during the
period from the Closing Date until the Letter of Credit Expiration Date, to
issue Letters of Credit for the account of the Borrower, and to amend or renew
Letters of Credit previously issued by it, in accordance with subsection (b)
below, and (2) to honor drafts under the Letters of Credit; and (B) the Lenders
severally agree to participate in Letters of Credit issued for the account of
the Borrower; PROVIDED that the L/C Issuer shall not be obligated to make any
L/C Credit Extension with respect to any Letter of Credit, and no Lender shall
be obligated to participate in any Letter of Credit if as of the date of
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such L/C Credit Extension, (x) the Working Capital Outstandings would exceed the
total amount of the Working Capital Borrowing Limit, (y) the aggregate
Outstanding Amount of the Working Capital Loans of such Lender, PLUS such
Lender's Working Capital Loan Commitment Percentage of the Outstanding Amount of
all L/C Obligations, PLUS such Lender's Working Capital Loan Commitment
Percentage of the Outstanding Amount of all Swing Line Loans would exceed such
Lender's Working Capital Commitment or (z) the Outstanding Amount of the L/C
Obligations would exceed the Letter of Credit Sublimit. Within the foregoing
limits, and subject to the terms and conditions hereof, the Borrower's ability
to obtain Letters of Credit shall be fully revolving, and accordingly the
Borrower may, during the foregoing period, obtain Letters of Credit to replace
Letters of Credit that have expired or that have been drawn upon and reimbursed.
(ii) The L/C Issuer shall be under no obligation to issue any
Letter of Credit if:
(A) any order, judgment or decree of any Governmental
Authority or arbitrator shall by its terms purport to enjoin or restrain the L/C
Issuer from issuing such Letter of Credit, or any Law applicable to the L/C
Issuer or any request or directive (whether or not having the force of law) from
any Governmental Authority with jurisdiction over the L/C Issuer shall prohibit,
or request that the L/C Issuer refrain from, the issuance of letters of credit
generally or such Letter of Credit in particular or shall impose upon the L/C
Issuer with respect to such Letter of Credit any restriction, reserve or capital
requirement (for which the L/C Issuer is not otherwise compensated hereunder)
not in effect on the Closing Date, or shall impose upon the L/C Issuer any
unreimbursed loss, cost or expense which was not applicable on the Closing Date
and which the L/C Issuer in good xxxxx xxxxx material to it;
(B) subject to SECTION 2.05(b)(iii), the expiry date
of such requested Letter of Credit would occur more than twelve months after the
date of issuance or last renewal, unless the Required Lenders have approved such
expiry date;
(C) the expiry date of such requested Letter of Credit
would occur after the Letter of Credit Expiration Date, unless all the Lenders
have approved such expiry date;
(D) the issuance of such Letter of Credit would
violate one or more policies of the L/C Issuer; or
(E) such Letter of Credit is in an initial amount less
than $50,000, in the case of a commercial Letter of Credit, or $250,000, in the
case of a standby Letter of Credit.
(iii) The L/C Issuer shall be under no obligation to amend any
Letter of Credit if (A) the L/C Issuer would have no obligation at such time to
issue such Letter of Credit in its amended form under the terms hereof, or (B)
the beneficiary of such Letter of Credit does not accept the proposed amendment
to such Letter of Credit.
(b) PROCEDURES FOR ISSUANCE AND AMENDMENT OF LETTERS OF CREDIT; AUTO-
RENEWAL LETTERS OF CREDIT.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of the Borrower delivered to the L/C Issuer (with
a copy to the Administrative Agent)
32
in the form of a Letter of Credit Application, appropriately completed and
signed by a Responsible Officer of the Borrower. Such Letter of Credit
Application must be received by the L/C Issuer and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date and time as
the L/C Issuer may agree in a particular instance in its sole discretion) prior
to the proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such Letter of
Credit Application shall specify in form and detail satisfactory to the L/C
Issuer: (A) the proposed issuance date of the requested Letter of Credit (which
shall be a Business Day); (B) the amount thereof; (C) the expiry date thereof;
(D) the name and address of the beneficiary thereof; (E) the documents to be
presented by such beneficiary in case of any drawing thereunder; (F) the full
text of any certificate to be presented by such beneficiary in case of any
drawing thereunder; and (G) such other matters as the L/C Issuer may require. In
the case of a request for an amendment of any outstanding Letter of Credit, such
Letter of Credit Application shall specify in form and detail satisfactory to
the L/C Issuer (A) the Letter of Credit to be amended; (B) the proposed date of
amendment thereof (which shall be a Business Day); (C) the nature of the
proposed amendment; and (D) such other matters as the L/C Issuer may require.
(ii) Promptly after receipt of any Letter of Credit
Application, the L/C Issuer will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received a copy of
such Letter of Credit Application from the Borrower and, if not, the L/C Issuer
will provide the Administrative Agent with a copy thereof. Upon receipt by the
L/C Issuer of confirmation from the Administrative Agent that the requested
issuance or amendment is permitted in accordance with the terms hereof, then,
subject to the terms and conditions hereof, the L/C Issuer shall, on the
requested date, issue a Letter of Credit for the account of the Borrower or
enter into the applicable amendment, as the case may be, in each case in
accordance with the L/C Issuer's usual and customary business practices.
Immediately upon the issuance of each Letter of Credit, each Lender shall be
deemed to, and hereby irrevocably and unconditionally agrees to, purchase from
the L/C Issuer a risk participation in such Letter of Credit in an amount equal
to the product of such Lender's Working Capital Loan Commitment Percentage TIMES
the amount of such Letter of Credit.
(iii) If the Borrower so requests in any applicable Letter of
Credit Application, the L/C Issuer may, in its sole and absolute discretion,
agree to issue a Letter of Credit that has automatic renewal provisions (each,
an "AUTO-RENEWAL LETTER OF CREDIT"); PROVIDED that any such Auto-Renewal Letter
of Credit must permit the L/C Issuer to prevent any such renewal at least once
in each twelve-month period (commencing with the date of issuance of such Letter
of Credit) by giving prior notice to the beneficiary thereof not later than a
day (the "NONRENEWAL NOTICE DATE") in each such twelve-month period to be agreed
upon at the time such Letter of Credit is issued. Unless otherwise directed by
the L/C Issuer, the Borrower shall not be required to make a specific request to
the L/C Issuer for any such renewal. Once an Auto-Renewal Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may not
require) the L/C Issuer to permit the renewal of such Letter of Credit at any
time to an expiry date not later than the Letter of Credit Expiration Date;
PROVIDED, HOWEVER, that the L/C Issuer shall not permit any such renewal if (A)
the L/C Issuer has determined that it would have no obligation at such time to
issue such Letter of Credit in its renewed form under the terms hereof (by
reason of the provisions of SECTION 2.05(a)(ii) or otherwise), or (B) it has
received notice (which may be by telephone or in writing) on or before the day
that is five (5) Business Days before the
33
Nonrenewal Notice Date (1) from the Administrative Agent that the Required
Lenders have elected not to permit such renewal or (2) from the Administrative
Agent, any Lender or the Borrower that one or more of the applicable conditions
specified in SECTIONS 5.02 or 5.03 is not then satisfied.
(iv) Promptly after its delivery of any Letter of Credit or any
amendment to a Letter of Credit to an advising bank with respect thereto or to
the beneficiary thereof, the L/C Issuer will also deliver to the Borrower and
the Administrative Agent a true and complete copy of such Letter of Credit or
amendment.
(c) DRAWINGS AND REIMBURSEMENTS; FUNDING OF PARTICIPATIONS.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the L/C Issuer shall
notify the Borrower and the Administrative Agent thereof. Not later than 11:00
a.m. on the date of any payment by the L/C Issuer under a Letter of Credit (each
such date, an "HONOR DATE"), the Borrower shall reimburse the L/C Issuer through
the Administrative Agent in an amount equal to the amount of such drawing. If
the Borrower fails to so reimburse the L/C Issuer by such time, the
Administrative Agent shall promptly notify each Lender of the Honor Date, the
amount of the unreimbursed drawing (the "UNREIMBURSED AMOUNT"), and the amount
of such Lender's Working Capital Loan Commitment Percentage thereof. In such
event, the Borrower shall be deemed to have requested a Working Capital
Borrowing of Base Rate Loans to be disbursed on the Honor Date in an amount
equal to the Unreimbursed Amount, without regard to the minimum and multiples
specified in SECTION 2.02 for the principal amount of Base Rate Loans, but
subject to the amount of the unutilized portion of the Working Capital
Commitments and the conditions set forth in SECTIONS 5.02 and 5.03 (other than
the delivery of a Loan Notice). Any notice given by the L/C Issuer or the
Administrative Agent pursuant to this SECTION 2.05(c)(i) may be given by
telephone if immediately confirmed in writing; PROVIDED that the lack of such an
immediate confirmation shall not affect the conclusiveness or binding effect of
such notice.
(ii) Each Lender (including the Lender acting as L/C Issuer)
shall upon any notice pursuant to SECTION 2.05(c)(i) make funds available to the
Administrative Agent for the account of the L/C Issuer at the Administrative
Agent's Office in an amount equal to its Working Capital Loan Commitment
Percentage of the Unreimbursed Amount not later than 1:00 p.m. on the Business
Day specified in such notice by the Administrative Agent, whereupon, subject to
the provisions of SECTION 2.05(c)(iii), each Lender that so makes funds
available shall be deemed to have made a Working Capital Loan bearing interest
at the Base Rate to the Borrower in such amount. The Administrative Agent shall
remit the funds so received to the L/C Issuer.
(iii) With respect to any Unreimbursed Amount that is not fully
refinanced by a Working Capital Borrowing of Base Rate Loans because the
conditions set forth in SECTIONS 5.02 and 5.03 cannot be satisfied or for any
other reason, the Borrower shall be deemed to have incurred from the L/C Issuer
an L/C Borrowing in the amount of the Unreimbursed Amount that is not so
refinanced, which L/C Borrowing shall be due and payable on demand (together
with interest) and shall bear interest at the Default Rate. In such event, each
Lender's payment to the Administrative Agent for the account of the L/C Issuer
pursuant to SECTION 2.05(c)(ii) shall be
34
deemed payment in respect of its participation in such L/C Borrowing and shall
constitute an L/C Advance from such Lender in satisfaction of its participation
obligation under this SECTION 2.05.
(iv) Until each Lender funds its Working Capital Loan or L/C
Advance pursuant to this SECTION 2.05(c) to reimburse the L/C Issuer for any
amount drawn under any Letter of Credit, interest in respect of such Lender's
Working Capital Loan Commitment Percentage of such amount shall be solely for
the account of the L/C Issuer.
(v) Each Lender's obligation to make Working Capital Loans or
L/C Advances to reimburse the L/C Issuer for amounts drawn under Letters of
Credit, as contemplated by this SECTION 2.05(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including (A) any
set-off, counterclaim, recoupment, defense or other right which such Lender may
have against the L/C Issuer, the Borrower or any other Person for any reason
whatsoever; (B) the occurrence or continuance of a Default, or (C) any other
occurrence, event or condition, whether or not similar to any of the foregoing;
PROVIDED, HOWEVER, that each Lender's obligation to make Working Capital Loans
pursuant to this SECTION 2.05(c) is subject to the conditions set forth in
SECTIONS 5.02 and 5.03 (other than delivery by the Borrower of a Loan Notice).
No such making of an L/C Advance shall relieve or otherwise impair the
obligation of the Borrower to reimburse the L/C Issuer for the amount of any
payment made by the L/C Issuer under any Letter of Credit, together with
interest as provided herein.
(vi) If any Lender fails to make available to the
Administrative Agent for the account of the L/C Issuer any amount required to be
paid by such Lender pursuant to the foregoing provisions of this SECTION 2.05(c)
by the time specified in SECTION 2.05(c)(ii), the L/C Issuer shall be entitled
to recover from such Lender (acting through the Administrative Agent), on
demand, such amount with interest thereon for the period from the date such
payment is required to the date on which such payment is immediately available
to the L/C Issuer at a rate per annum equal to the Federal Funds Rate from time
to time in effect. A certificate of the L/C Issuer submitted to any Lender
(through the Administrative Agent) with respect to any amounts owing under this
clause (vi) shall be conclusive absent manifest error.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after the L/C Issuer has made a payment under
any Letter of Credit and has received from any Lender such Lender's L/C Advance
in respect of such payment in accordance with SECTION 2.05(c), if the
Administrative Agent receives for the account of the L/C Issuer any payment in
respect of the related Unreimbursed Amount or interest thereon (whether directly
from the Borrower or otherwise, including proceeds of Cash Collateral applied
thereto by the Administrative Agent), the Administrative Agent will distribute
to such Lender its Working Capital Loan Commitment Percentage thereof
(appropriately adjusted, in the case of interest payments, to reflect the period
of time during which such Lender's L/C Advance was outstanding) in the same
funds as those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the L/C Issuer pursuant to SECTION 2.05(c)(i) is required to be
returned under any of the circumstances described in SECTION 11.06 (including
pursuant to any settlement entered into by the L/C Issuer in its discretion),
each Lender shall pay to the Administrative Agent for the
35
account of the L/C Issuer its Working Capital Loan Commitment Percentage thereof
on demand of the Administrative Agent, plus interest thereon from the date of
such demand to the date such amount is returned by such Lender, at a rate per
annum equal to the Federal Funds Rate from time to time in effect.
(e) OBLIGATIONS ABSOLUTE. The obligation of the Borrower to
reimburse the L/C Issuer for each drawing under each Letter of Credit and to
repay each L/C Borrowing shall be absolute, unconditional and irrevocable, and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Agreement, or any other agreement or instrument relating thereto;
(ii) the existence of any claim, counterclaim, set-off, defense
or other right that the Borrower may have at any time against any beneficiary or
any transferee of such Letter of Credit (or any Person for whom any such
beneficiary or any such transferee may be acting), the L/C Issuer or any other
Person, whether in connection with this Agreement, the transactions contemplated
hereby or by such Letter of Credit or any agreement or instrument relating
thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document presented
under such 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; or any loss or delay in the transmission or otherwise of any
document required in order to make a drawing under such Letter of Credit;
(iv) any payment by the L/C Issuer under such Letter of Credit
against presentation of a draft or certificate that does not strictly comply
with the terms of such Letter of Credit; or any payment made by the L/C Issuer
under such Letter of Credit to any Person purporting to be a trustee in
bankruptcy, debtor-in-possession, assignee for the benefit of creditors,
liquidator, receiver or other representative of or successor to any beneficiary
or any transferee of such Letter of Credit, including any arising in connection
with any proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance that might
otherwise constitute a defense available to, or a discharge of, the Borrower.
The Borrower shall promptly examine a copy of each Letter of Credit and
each amendment thereto that is delivered to it and, in the event of any claim of
noncompliance with the Borrower's instructions or other irregularity, the
Borrower will immediately notify the L/C Issuer. The Borrower shall be
conclusively deemed to have waived any such claim against the L/C Issuer and its
correspondents unless such notice is given as aforesaid.
(f) ROLE OF L/C ISSUER. Each Lender and the Borrower agree that, in
paying any drawing under a Letter of Credit, the L/C Issuer shall not have any
responsibility to obtain any document (other than any sight draft, certificates
and documents expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the
36
authority of the Person executing or delivering any such document. None of the
L/C Issuer, any Agent-Related Person nor any of the respective correspondents,
participants or assignees of the L/C Issuer shall be liable to any Lender for
(i) any action taken or omitted in connection herewith at the request or with
the approval of the Lenders or the Required Lenders, as applicable; (ii) any
action taken or omitted in the absence of gross negligence or willful
misconduct; or (iii) the due execution, effectiveness, validity or
enforceability of any document or instrument related to any Letter of Credit or
Letter of Credit Application. The Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
Letter of Credit; PROVIDED, HOWEVER, that this assumption is not intended to,
and shall not, preclude the Borrower's pursuing such rights and remedies as it
may have against the beneficiary or transferee at law or under any other
agreement. None of the L/C Issuer, any Agent-Related Person, nor any of the
respective correspondents, participants or assignees of the L/C Issuer, shall be
liable or responsible for any of the matters described in clauses (i) through
(v) of SECTION 2.05(e); PROVIDED, HOWEVER, that anything in such clauses to the
contrary notwithstanding, the Borrower may have a claim against the L/C Issuer,
and the L/C Issuer may be liable to the Borrower, to the extent, but only to the
extent, of any direct, as opposed to consequential or exemplary, damages
suffered by the Borrower which the Borrower proves were caused by the L/C
Issuer's willful misconduct or gross negligence or the L/C Issuer's willful
failure to pay under any Letter of Credit after the presentation to it by the
beneficiary of a sight draft and certificate(s) strictly complying with the
terms and conditions of a Letter of Credit. In furtherance and not in limitation
of the foregoing, the L/C Issuer may accept documents that appear on their face
to be in order, without responsibility for further investigation, regardless of
any notice or information to the contrary, and the L/C Issuer shall not be
responsible for the validity or sufficiency of any instrument transferring or
assigning or purporting to transfer or assign a Letter of Credit or the rights
or benefits thereunder or proceeds thereof, in whole or in part, which may prove
to be invalid or ineffective for any reason.
(g) CASH COLLATERAL. Upon the request of the Administrative Agent, (i)
if the L/C Issuer has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any Letter of Credit may for any
reason remain outstanding and partially or wholly undrawn, the Borrower shall
immediately Cash Collateralize the then Outstanding Amount of all L/C
Obligations (in an amount equal to such Outstanding Amount determined as of the
date of such L/C Borrowing or the Letter of Credit Expiration Date, as the case
may be). For purposes hereof, "CASH COLLATERALIZE" means to pledge and deposit
with or deliver to the Administrative Agent, for the benefit of the L/C Issuer
and the Lenders, as collateral for the L/C Obligations, cash or deposit account
balances pursuant to documentation in form and substance satisfactory to the
Administrative Agent and the L/C Issuer (which documents are hereby consented to
by the Lenders). Derivatives of such term have corresponding meanings. The
Borrower hereby grants to the Administrative Agent, for the benefit of the L/C
Issuer and the Lenders, a security interest in all such cash, deposit accounts
and all balances therein and all proceeds of the foregoing. Cash collateral
shall be maintained in blocked, non-interest bearing deposit accounts at Bank of
America.
(h) APPLICABILITY OF ISP98 AND UCP. Unless otherwise expressly agreed
by the L/C Issuer and the Borrower when a Letter of Credit is issued, (i) the
rules of the "International Standby Practices 1998" published by the Institute
of International Banking Law & Practice (or
37
such later version thereof as may be in effect at the time of issuance) shall
apply to each standby Letter of Credit, and (ii) the rules of the Uniform
Customs and Practice for Documentary Credits, as most recently published by the
International Chamber of Commerce (the "ICC") at the time of issuance (including
the ICC decision published by the Commission on Banking Technique and Practice
on April 6, 1998 regarding the European single currency (euro)) shall apply to
each commercial Letter of Credit.
(i) LETTER OF CREDIT FEES. The Borrower shall pay to the
Administrative Agent, for the account of each Lender in accordance with its
Working Capital Loan Commitment Percentage, a Letter of Credit fee for each
commercial and standby Letter of Credit equal to 1% per annum TIMES the daily
maximum amount available to be drawn under such Letter of Credit (whether or not
such maximum amount is then in effect under such Letter of Credit). Such letter
of credit fees shall be computed on a quarterly basis in arrears. Such letter of
credit fees shall be due and payable on the first Business Day after the end of
each March, June, September and December, commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Letter of Credit
Expiration Date and thereafter on demand.
(j) FRONTING FEE AND DOCUMENTARY AND PROCESSING CHARGES PAYABLE TO L/C
ISSUER. The Borrower shall pay directly to the L/C Issuer, for its own account,
a fronting fee with respect to each Letter of Credit in the amounts and at the
times separately agreed upon in writing between the L/C Issuer and the Borrower.
In addition, the Borrower shall pay directly to the L/C Issuer, for its own
account, the customary issuance, presentation, amendment and other processing
fees, and other standard costs and charges, of the L/C Issuer relating to
letters of credit as from time to time in effect. Such customary fees and
standard costs and charges are due and payable on demand and are nonrefundable.
(k) CONFLICT WITH LETTER OF CREDIT APPLICATION. In the event of any
conflict between the terms hereof and the terms of any Letter of Credit
Application, the terms hereof shall control.
2.06 SWING LINE LOANS.
(a) THE SWING LINE. Subject to the terms and conditions set forth
herein, the Swing Line Lender agrees to make loans (each such loan, a "SWING
LINE LOAN") to the Borrower from time to time on any Business Day during the
Availability Period in an aggregate amount not to exceed at any time outstanding
the amount of the Swing Line Sublimit, notwithstanding the fact that (i) such
Swing Line Loans, when aggregated with the Working Capital Loan Commitment
Percentage of the Outstanding Amount of Working Capital Loans and L/C
Obligations of the Lender acting as Swing Line Lender, may exceed the amount of
such Lender's Working Capital Commitment; PROVIDED, HOWEVER, that after giving
effect to any Swing Line Loan, (A) the Working Capital Outstandings shall not
exceed the total amount of the Working Capital Borrowing Limit, and (B) the
aggregate Outstanding Amount of the Working Capital Loans of any Lender, PLUS
such Lender's Working Capital Loan Commitment Percentage of the Outstanding
Amount of all L/C Obligations, PLUS such Lender's Working Capital Loan
Commitment Percentage of the Outstanding Amount of all Swing Line Loans shall
not exceed such Lender's Working Capital Commitment, and PROVIDED, FURTHER, that
the Borrower shall not use the proceeds of any Swing Line Loan to refinance any
outstanding Swing Line Loan. Within the foregoing limits, and subject to the
other terms and conditions hereof, the Borrower may
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borrow under this SECTION 2.06, prepay under SECTION 2.07, and reborrow under
this SECTION 2.06. Each Swing Line Loan shall be a Base Rate Loan. Immediately
upon the making of a Swing Line Loan, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Swing Line Lender a
risk participation in such Swing Line Loan in an amount equal to the product of
such Lender's Working Capital Loan Commitment Percentage TIMES the amount of
such Swing Line Loan.
(b) BORROWING PROCEDURES. Each Swing Line Borrowing shall be made upon
the Borrower's irrevocable notice to the Swing Line Lender and the
Administrative Agent, which may be given by telephone. Each such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the requested borrowing date, and shall specify (i) the amount to
be borrowed, which shall be a minimum of $100,000, and (ii) the requested
borrowing date, which shall be a Business Day. Each such telephonic notice must
be confirmed promptly by delivery to the Swing Line Lender and the
Administrative Agent of a written Swing Line Loan Notice, appropriately
completed and signed by a Responsible Officer of the Borrower. Promptly after
receipt by the Swing Line Lender of any telephonic Swing Line Loan Notice, the
Swing Line Lender will confirm with the Administrative Agent (by telephone or in
writing) that the Administrative Agent has also received such Swing Line Loan
Notice and, if not, the Swing Line Lender will notify the Administrative Agent
(by telephone or in writing) of the contents thereof. Unless the Swing Line
Lender has received notice (by telephone or in writing) from the Administrative
Agent (including at the request of any Lender) prior to 2:00 p.m. on the date of
the proposed Swing Line Borrowing (A) directing the Swing Line Lender not to
make such Swing Line Loan as a result of the limitations set forth in the
proviso to the first sentence of SECTION 2.06(a), or (B) that one or more of the
applicable conditions specified in ARTICLE V is not then satisfied, then,
subject to the terms and conditions hereof, the Swing Line Lender will, not
later than 3:00 p.m. on the borrowing date specified in such Swing Line Loan
Notice, make the amount of its Swing Line Loan available to the Borrower at its
office by crediting the account of the Borrower on the books of the Swing Line
Lender in immediately available funds.
(c) REFINANCING OF SWING LINE LOANS.
(i) The Swing Line Lender at any time in its sole and absolute
discretion may request, on behalf of the Borrower (which hereby irrevocably
authorizes the Swing Line Lender to so request on its behalf), that each Lender
make a Working Capital Loan bearing interest at the Base Rate in an amount equal
to such Lender's Working Capital Loan Commitment Percentage of the amount of
Swing Line Loans then outstanding. Such request shall be made in writing (which
written request shall be deemed to be a Loan Notice for purposes hereof) and in
accordance with the requirements of SECTION 2.02, without regard to the minimum
and multiples specified therein for the principal amount of Base Rate Loans, but
subject to the unutilized portion of the Working Capital Commitments and the
conditions set forth in SECTIONS 5.02 and 5.03. The Swing Line Lender shall
furnish the Borrower with a copy of the applicable Loan Notice promptly after
delivering such notice to the Administrative Agent. Each Lender shall make an
amount equal to its Working Capital Loan Commitment Percentage of the amount
specified in such Loan Notice available to the Administrative Agent in
immediately available funds for the account of the Swing Line Lender at the
Administrative Agent's Office not later than 1:00 p.m. on the day specified in
such Loan Notice, whereupon, subject to SECTION
39
2.06(c)(ii), each Lender that so makes funds available shall be deemed to have
made a Working Capital Loan bearing interest at the Base Rate to the Borrower in
such amount. The Administrative Agent shall remit the funds so received to the
Swing Line Lender.
(ii) If for any reason any Swing Line Loan cannot be refinanced
by such a Working Capital Borrowing in accordance with SECTION 2.06(c)(i), the
request for Working Capital Loans bearing interest at the Base Rate submitted by
the Swing Line Lender as set forth herein shall be deemed to be a request by the
Swing Line Lender that each of the Lenders fund its risk participation in the
relevant Swing Line Loan and each Lender's payment to the Administrative Agent
for the account of the Swing Line Lender pursuant to SECTION 2.06(c)(i) shall be
deemed payment in respect of such participation.
(iii) If any Lender fails to make available to the
Administrative Agent for the account of the Swing Line Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions of this
SECTION 2.06(c) by the time specified in SECTION 2.06(c)(i), the Swing Line
Lender shall be entitled to recover from such Lender (acting through the
Administrative Agent), on demand, such amount with interest thereon for the
period from the date such payment is required to the date on which such payment
is immediately available to the Swing Line Lender at a rate per annum equal to
the Federal Funds Rate from time to time in effect. A certificate of the Swing
Line Lender submitted to any Lender (through the Administrative Agent) with
respect to any amounts owing under this clause (iii) shall be conclusive absent
manifest error.
(iv) Each Lender's obligation to make Working Capital Loans or
to purchase and fund risk participations in Swing Line Loans pursuant to this
SECTION 2.06(c) shall be absolute and unconditional and shall not be affected by
any circumstance, including (A) any set-off, counterclaim, recoupment, defense
or other right which such Lender may have against the Swing Line Lender, the
Borrower or any other Person for any reason whatsoever, (B) the occurrence or
continuance of a Default, or (C) any other occurrence, event or condition,
whether or not similar to any of the foregoing; PROVIDED, HOWEVER, that each
Lender's obligation to make Working Capital Loans pursuant to this SECTION
2.06(c) is subject to the conditions set forth in SECTIONS 5.02 and 5.03. No
such funding of risk participations shall relieve or otherwise impair the
obligation of the Borrower to repay Swing Line Loans, together with interest as
provided herein.
(d) REPAYMENT OF PARTICIPATIONS.
(i) At any time after any Lender has purchased and funded a
risk participation in a Swing Line Loan, if the Swing Line Lender receives any
payment on account of such Swing Line Loan, the Swing Line Lender will
distribute to such Lender its Working Capital Loan Commitment Percentage of such
payment (appropriately adjusted, in the case of interest payments, to reflect
the period of time during which such Lender's risk participation was funded) in
the same funds as those received by the Swing Line Lender.
(ii) If any payment received by the Swing Line Lender in
respect of principal or interest on any Swing Line Loan is required to be
returned by the Swing Line Lender under any of the circumstances described in
SECTION 11.06 (including pursuant to any settlement entered into by the Swing
Line Lender in its discretion), each Lender shall pay to the Swing Line
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Lender its Working Capital Loan Commitment Percentage thereof on demand of the
Administrative Agent, plus interest thereon from the date of such demand to the
date such amount is returned, at a rate per annum equal to the Federal Funds
Rate. The Administrative Agent will make such demand upon the request of the
Swing Line Lender.
(e) INTEREST FOR ACCOUNT OF SWING LINE LENDER. The Swing Line Lender
shall be responsible for invoicing the Borrower for interest on the Swing Line
Loans. Until each Lender funds its Working Capital Loan bearing interest at the
Base Rate or risk participation pursuant to this SECTION 2.06 to refinance such
Lender's Working Capital Loan Commitment Percentage of any Swing Line Loan,
interest in respect of such Working Capital Loan Commitment Percentage shall be
solely for the account of the Swing Line Lender.
(f) PAYMENTS DIRECTLY TO SWING LINE LENDER. The Borrower shall make
all payments of principal and interest in respect of the Swing Line Loans
directly to the Swing Line Lender.
2.07 PREPAYMENTS.
(a) VOLUNTARY PREPAYMENTS OF CONSTRUCTION LOANS AND WORKING CAPITAL
LOANS. The Borrower may, upon notice to the Administrative Agent, at any time or
from time to time voluntarily prepay Construction Loans or Working Capital Loans
in whole or in part without premium or penalty; PROVIDED that (i) such notice
must be received by the Administrative Agent not later than 11:00 a.m. (A) three
Business Days prior to any date of prepayment of Eurodollar Rate Loans and (B)
on the date of prepayment of Base Rate Loans; (ii) any prepayment of Eurodollar
Rate Loans which are (A) Construction Loans, shall be in a principal amount of
$1,000,000 or a whole multiple of $1,000,000 in excess thereof and (B) Working
Capital Loans, shall be in a principal amount of $500,000 or a whole multiple of
$500,000 in excess thereof; and (iii) any prepayment of Base Rate Loans shall be
in a principal amount of $500,000 or a whole multiple of $100,000 in excess
thereof or, in each case, if less, the entire principal amount thereof then
outstanding. Each such notice shall specify the date and amount of such
prepayment and the Types of Construction Loans or Working Capital Loans to be
prepaid. The Administrative Agent will promptly notify each Lender of its
receipt of each such notice, and of the amount of such Lender's Construction
Loan Commitment Percentage or Working Capital Loan Commitment Percentage, as
applicable, of such prepayment. If such notice is given by the Borrower, the
Borrower shall make such prepayment and the payment amount specified in such
notice shall be due and payable on the date specified therein. Any prepayment of
a Eurodollar Rate Loan shall be accompanied by all accrued interest thereon,
together with any additional amounts required pursuant to SECTION 4.05. Each
such prepayment shall be applied to the Construction Loans or the Working
Capital Loans of the Lenders in accordance with their respective Construction
Loan Commitment Percentages or Working Capital Loan Commitment Percentages, as
applicable.
(b) VOLUNTARY PREPAYMENTS OF SWING LINE LOANS. The Borrower may, upon
notice to the Swing Line Lender (with a copy to the Administrative Agent), at
any time or from time to time, voluntarily prepay Swing Line Loans in whole or
in part without premium or penalty; PROVIDED that (i) such notice must be
received by the Swing Line Lender and the Administrative Agent not later than
1:00 p.m. on the date of the prepayment, and (ii) any such prepayment shall be
in a minimum principal amount of $100,000. Each such notice shall specify the
date and
41
amount of such prepayment. If such notice is given by the Borrower, the Borrower
shall make such prepayment and the payment amount specified in such notice shall
be due and payable on the date specified therein.
(c) VOLUNTARY PREPAYMENTS OF TERM LOAN. The Borrower may, upon notice
to the Administrative Agent, at any time or from time to time voluntarily prepay
the Term Loan in whole or in part without premium or penalty; PROVIDED that (i)
such notice must be received by the Administrative Agent not later than 11:00
a.m. (A) three Business Days prior to any date of prepayment of Eurodollar Rate
Loans and (B) on the date of prepayment of Base Rate Loans; (ii) any prepayment
of Eurodollar Rate Loans shall be in a principal amount of $1,000,000 or a whole
multiple of $1,000,000 in excess thereof; and (iii) any prepayment of Base Rate
Loans shall be in a principal amount of $500,000 or a whole multiple of $100,000
in excess thereof or, in each case, if less, the entire principal amount thereof
then outstanding. Each such notice shall specify the date and amount of such
prepayment and the Type(s) of Loans to be prepaid. The Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and of the
amount of such Lender's Term Loan Percentage of such prepayment. If such notice
is given by the Borrower, the Borrower shall make such prepayment and the
payment amount specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Eurodollar Rate Loan shall be accompanied
by all accrued interest thereon, together with any additional amounts required
pursuant to SECTION 4.05. Each such prepayment shall be applied to the
outstanding principal installments of the Term Loan in inverse order of maturity
thereof (and shall be applied to the Term Loan of the Lenders in accordance with
their respective Term Loan Percentages).
(d) MANDATORY PREPAYMENTS OF CONSTRUCTION LOAN OUTSTANDINGS. If for
any reason the Construction Loan Outstandings at any time exceed the total
amount of the Construction Loan Commitments then in effect, the Borrower shall
immediately prepay Construction Loans in an aggregate amount equal to such
excess.
(e) MANDATORY PREPAYMENTS OF WORKING CAPITAL OUTSTANDINGS. If for any
reason the Working Capital Outstandings at any time exceed the total amount of
the Working Capital Borrowing Limit then in effect, the Borrower shall
immediately prepay Working Capital Loans and/or Swing Line Loans and/or Cash
Collateralize the L/C Obligations in an aggregate amount equal to such excess;
PROVIDED, HOWEVER, that the Borrower shall not be required to Cash Collateralize
the L/C Obligations pursuant to this SECTION 2.07(e) unless after the prepayment
in full of the Working Capital Loans and Swing Line Loans, the Working Capital
Outstandings exceed the total amount of the Working Capital Borrowing Limit then
in effect.
(f) MANDATORY PREPAYMENTS OF LOAN.
(i) DEBT PROCEEDS AND PREPAYMENTS OF INTERCOMPANY NOTES.
(A) The Borrower shall make mandatory principal
prepayments of the Loans in the manner set forth in SECTION 2.07(f)(vi) below in
amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds
from any incurrence of Indebtedness permitted pursuant to SECTION 8.03(f) or any
other Indebtedness not permitted by the terms of this Agreement by the Borrower
or any of its Subsidiaries. Such prepayment shall be made within
42
three (3) Business Days after the date of receipt of Net Cash Proceeds of any
such transaction; and
(B) The Borrower shall make mandatory principal
prepayments of the Loans in the manner set forth in SECTION 2.07(f)(vi) below in
amounts equal to one hundred percent (100%) of any amounts received by the
Borrower or any Subsidiary thereof pursuant to any prepayments of any
Intercompany Note (excluding all scheduled payments thereunder). Such prepayment
shall be made within three (3) Business Days after the date of receipt of any
such amount.
(ii) EQUITY PROCEEDS.
(A) The Borrower shall make mandatory principal
prepayments of the Loans in the manner set forth in SECTION 2.07(f)(vi) below in
amounts equal to one hundred percent (100%) of the aggregate Net Cash Proceeds
from any non-registered offering of equity securities by the Borrower or any of
its Subsidiaries (excluding (1) the Net Cash Proceeds of the initial capital
investment of any third party in any Joint Venture Subsidiary unless the
proceeds of such initial investment are distributed to the Borrower or any
Subsidiary thereof (other than such Joint Venture Subsidiary), and (2) the Net
Cash Proceeds of any offerings of equity securities to employees pursuant to
incentive compensation plans in the ordinary course of business). Such
prepayment shall be made within three (3) Business Days after the date of
receipt of Net Cash Proceeds of any such transaction; and
(B) The Borrower shall make mandatory principal
prepayments of the Loans in the manner set forth in SECTION 2.07(f)(vi) below in
amounts equal to fifty percent (50%) of the aggregate Net Cash Proceeds from any
public offering of equity securities by the Borrower. Such prepayment shall be
made within three (3) Business Days after the date of receipt of Net Cash
Proceeds of any such transaction.
(iii) ASSET SALE PROCEEDS. No later than one hundred eighty
(180) days following the receipt thereof, the Borrower shall make mandatory
principal prepayments of the Loans in the manner set forth in SECTION
2.07(f)(vi) below in amounts equal to one hundred percent (100%) of the
aggregate Net Cash Proceeds from the Disposition or series of related
Dispositions of assets by the Borrower or any of its Subsidiaries permitted
pursuant to SECTION 8.05(i) (the "DISPOSITION PROCEEDS"); PROVIDED that:
(A) any prepayment required pursuant to this SECTION
2.07(f)(iii) with respect to any Disposition Proceeds of less than $1,500,000.00
(any such amounts, the "DEFERRED PROCEEDS") may be deferred until such time as
the aggregate amount of all such Deferred Proceeds that have not previously been
reinvested or applied to prepay any Loans equals or exceeds $1,500,000.00; and
(B) any prepayment required pursuant to this SECTION
2.07(f)(iii) with respect to any Disposition Proceeds received by Joint Venture
Subsidiaries that are not Designated JV Subsidiaries or Term Loan Subsidiaries
shall be required only with respect to that portion of the Net Cash Proceeds
actually distributed to or received by the Borrower or any other Subsidiary
thereof.
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Notwithstanding any of the foregoing to the contrary, upon and during the
continuance of an Event of Default and upon notice from the Administrative
Agent, all Disposition Proceeds received by the Borrower and its Subsidiaries
shall be applied to make prepayments of the Loans, such prepayments to be made
within three (3) Business Days after the Borrower's receipt of such Disposition
Proceeds.
(iv) INSURANCE AND CONDEMNATION PROCEEDS. No later than one
hundred eighty (180) days following the date of receipt by the Borrower or any
of its Subsidiaries of any Net Cash Proceeds under any of the insurance policies
maintained pursuant to SECTION 7.07 or from any condemnation proceeding (the
"INSURANCE AND CONDEMNATION PROCEEDS") which have not been reinvested as of such
date in similar replacement assets, the Borrower shall make mandatory principal
prepayments of the Loans in the manner set forth in SECTION 2.07(f)(vi) below in
amounts equal to one hundred percent (100%) of the aggregate amount of such
Insurance and Condemnation Proceeds received by the Borrower or any of its
Subsidiaries; PROVIDED that any prepayment required pursuant to this SECTION
2.07(f)(iv) with respect to any Insurance and Condemnation Proceeds by Joint
Venture Subsidiaries that are not Designated JV Subsidiaries or Term Loan
Subsidiaries, such prepayment shall be required only with respect to that
portion of the Insurance and Condemnation Proceeds actually distributed to or
received by the Borrower or any Subsidiary thereof. Notwithstanding any of the
foregoing to the contrary, upon and during the continuance of an Event of
Default and upon notice from the Administrative Agent, all Insurance and
Condemnation Proceeds received by the Borrower and its Subsidiaries shall be
applied to make prepayments of the Loans, such prepayments to be made within
three (3) Business Days after the Borrower's receipt of such Insurance and
Condemnation Proceeds.
(v) EXCESS CASH FLOW. Within ninety (90) days after the end of
any Fiscal Year, commencing with the Fiscal Year ending December 30, 2003, for
which the Consolidated Total Leverage Ratio as of the end of such Fiscal Year
(A) equals or exceeds 3.00 to 1.00, the Borrower shall make a mandatory
principal prepayment of the Loans in the manner set forth in SECTION 2.07(f)(vi)
below in an amount equal to seventy-five percent (75%) of Excess Cash Flow, if
any, for such Fiscal Year and (B) is less than 3.00 to 1.00, the Borrower shall
make a mandatory principal prepayment of the Loans in the manner set forth in
SECTION 2.07(f)(vi) below in an amount equal to 50% of Excess Cash Flow, if any
for such Fiscal Year.
(vi) NOTICE; MANNER OF PAYMENT. Upon the occurrence of any
event triggering the prepayment requirement under SECTIONS 2.07(f)(i) through
and including 2.07(f)(v), the Borrower shall promptly give written notice to the
Administrative Agent and upon receipt of such notice, the Administrative Agent
shall promptly so notify the Lenders. Each prepayment under this SECTION 2.07(f)
shall be applied as follows: FIRST, to reduce in inverse order of maturity the
remaining scheduled principal installments of the Term Loan pursuant to SECTION
2.09(c), (ii) SECOND, to the extent of any excess, to reduce permanently the
Construction Loan Commitments pursuant to SECTION 2.08(b), and (iii) THIRD, to
the extent of any excess, to reduce permanently the Working Capital Loan
Commitment pursuant to SECTION 2.08(c).
(vii) PERMANENT REDUCTION. Amounts prepaid under the Term Loan
pursuant to this SECTION 2.07(f) may not be reborrowed and will constitute a
permanent reduction in the Term Loan Commitment. Each prepayment shall be
accompanied by any amount required to be paid pursuant to SECTION 4.05 hereof.
44
(g) MANDATORY PREPAYMENTS OF LOAN OUTSTANDINGS. If for any reason the
aggregate amount of all Equipment Advances exceeds fifteen percent (15%) of the
Loan Outstandings at any time, the Borrower shall immediately prepay the Loans
constituting Equipment Advances in an aggregate amount equal to such excess.
2.08 TERMINATION OR REDUCTION OF CONSTRUCTION LOAN COMMITMENTS OR
WORKING CAPITAL COMMITMENTS.
(a) VOLUNTARY TERMINATION OR REDUCTION. The Borrower may, upon notice
to the Administrative Agent, terminate the Construction Loan Commitments or
Working Capital Loan Commitments, or from time to time permanently reduce the
Construction Loan Commitments or Working Capital Loan Commitments; PROVIDED that
(i) any such notice shall be received by the Administrative Agent not later than
11:00 a.m. five Business Days prior to the date of termination or reduction,
(ii) any such partial reduction of the Construction Loan Commitment shall be in
an aggregate amount of $1,000,000 or any whole multiple of $1,000,000 in excess
thereof, (iii) any such partial reduction of the Working Capital Commitment
shall be in an aggregate amount of $500,000 or any whole multiple of $500,000 in
excess thereof, (iv) the Borrower shall not terminate or reduce the Construction
Loan Commitments if, after giving effect thereto and to any concurrent
prepayments hereunder, the Construction Loan Outstandings would exceed the total
amount of the Construction Loan Commitments, (v) the Borrower shall not
terminate or reduce the Working Capital Loan Commitment, after giving effect
thereto and to any concurrent prepayments hereunder, the Working Capital Loan
Outstandings would exceed the total amount of the Working Capital Loan
Commitment and (vi) if, after giving effect to any reduction of the Working
Capital Loan Commitments, the Letter of Credit Sublimit or the Swing Line
Sublimit exceeds the amount of the Working Capital Loan Commitments, each
applicable Sublimit shall be automatically reduced by the amount of such excess.
The Administrative Agent will promptly notify the Lenders of any such notice of
termination or reduction of the Construction Loan Commitments or Working Capital
Loan Commitments. Any reduction of the Construction Loan Commitments or Working
Capital Loan Commitments shall be applied to the Construction Loan Commitment or
Working Capital Loan Commitments, as applicable of, each Lender according to its
Construction Loan Commitment Percentage or Working Capital Loan Commitments
Percentage, as applicable. All Commitment Fees accrued until the effective date
of any termination of the Construction Loan Commitments or Working Capital
Commitments, as applicable, shall be paid on the effective date of such
termination.
(b) EXCESS PROCEEDS. If at any time proceeds ("EXCESS PROCEEDS")
remain after the prepayment of Term Loans pursuant to SECTION 2.07(f), the
Construction Loan Commitments shall be permanently reduced on the date of the
required prepayment under SECTION 2.07(f) by an amount equal to the amount of
such Excess Proceeds. Any such reduction of the Construction Loan Commitments
shall be applied to the Construction Loan Commitment of each Lender according to
its Construction Loan Commitment Percentage.
(c) REMAINING EXCESS PROCEEDS. If at any time Excess Proceeds remain
("REMAINING EXCESS PROCEEDS") after the reduction of the Construction Loan
Commitments pursuant to SECTION 2.08(b), the Working Capital Commitments shall
be permanently reduced on the date of the required prepayment under SECTION
2.07(f) by an amount equal to the amount of such Remaining Excess Proceeds. Any
such reduction of the Working Capital Commitments shall be
45
applied to the Working Capital Commitment of each Lender according to its
Working Capital Loan Commitment Percentage.
2.09 REPAYMENT OF LOANS.
(a) REPAYMENT OF CONSTRUCTION LOANS AND WORKING CAPITAL LOANS. The
Borrower shall repay to the Lenders (i) on the Construction Loan Maturity Date
the aggregate principal amount of Construction Loans and (ii) on the Working
Capital Loan Maturity Date the aggregate principal amount of Working Capital
Loans outstanding on such date.
(b) REPAYMENT OF SWING LINE LOANS. The Borrower shall repay each Swing
Line Loan on the earlier to occur of (i) the date five Business Days after such
Loan is made and (ii) the Working Capital Loan Maturity Date.
(c) REPAYMENT OF TERM LOAN. The Borrower shall repay the outstanding
principal amount of the Term Loan in consecutive quarterly installments
commencing September 30, 2003 as follows (as such installments may hereafter be
adjusted as a result of prepayments made pursuant to SECTION 2.07(f)), in each
case unless accelerated sooner pursuant to SECTION 9.02:
PRINCIPAL
YEAR PAYMENT DATE INSTALLMENT
($)
---------------------------------------------------------
2003 September 30, 2003 $ 1,362,500.00
December 31, 2003 $ 1,362,500.00
2004 March 31, 2004 $ 1,362,500.00
June 30, 2004 $ 1,362,500.00
September 30, 2004 $ 1,362,500.00
December 31, 2004 $ 1,362,500.00
2005 March 31, 2005 $ 1,362,500.00
June 30, 2005 $ 1,362,500.00
September 30, 2005 $ 1,362,500.00
December 31, 2005 $ 1,362,500.00
2006 March 31, 2006 $ 1,362,500.00
June 30, 2006 $ 1,362,500.00
If not sooner paid, the Term Loan shall be paid in full, together with
accrued interest thereon, on the Term Loan Maturity Date.
2.10 REALLOCATION OF CONSTRUCTION LOAN COMMITMENT AND WORKING CAPITAL
COMMITMENT. Provided that no Default or Event of Default shall have occurred and
be continuing, in the event the Borrower has Construction Loan Outstandings
equal or exceeding $70,000,000, the Borrower may, upon thirty (30) days prior
written notice by the Borrower to the Administrative Agent, in form and
substance satisfactory to the Administrative Agent,
46
permanently reallocate all or any portion of Working Capital Commitment to the
Construction Loan Commitment (any such amount, "REALLOCATED AMOUNT"); PROVIDED
that (a) no more than one such notice may be delivered by the Borrower during
the term hereof, (b) after giving effect to any such reallocation, the remaining
Working Capital Commitment shall equal or exceed an amount equal to the sum of
(i) the Outstanding Amount of Working Capital Loans at such time, (ii) the
Outstanding Amount of Swing Line Loans at such time, and (iii) the Outstanding
Amount of L/C Obligations at such time, and (c) the Reallocated Amount shall be
in an aggregate amount of $2,000,000 or any whole multiple of $1,000,000 in
excess thereof. The Working Capital Commitments shall be permanently reduced by
the amount of the Reallocated Amount and the Construction Loan Commitments shall
be permanently increased by amount of the Reallocated Amount.
ARTICLE III.
GENERAL LOAN PROVISIONS
3.01 INTEREST.
(a) Subject to the provisions of subsection (b) below, (i) each
Eurodollar Rate Loan shall bear interest on the outstanding principal amount
thereof for each Interest Period at a rate per annum equal to the Eurodollar
Rate for such Interest Period PLUS the Applicable Rate; (ii) each Base Rate Loan
(other than Swing Line Loans) shall bear interest on the outstanding principal
amount thereof from the applicable borrowing date at a rate per annum equal to
the Base Rate PLUS the Applicable Rate; and (iii) each Swing Line Loan shall
bear interest on the outstanding principal amount thereof from the applicable
borrowing date at a rate per annum equal to the Base Rate PLUS the Applicable
Rate.
(b) If any amount payable by the Borrower under any Loan Document is
not paid when due (without regard to any applicable grace periods), whether at
stated maturity, by acceleration or otherwise, such amount shall thereafter bear
interest at a fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable Laws. Furthermore,
while any Event of Default exists, the Borrower shall pay interest on the
principal amount of all outstanding Obligations hereunder at a fluctuating
interest rate per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws. Accrued and unpaid interest on past due
amounts (including interest on past due interest) shall be due and payable upon
demand.
(c) Interest on each Loan shall be due and payable in arrears on each
Interest Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in accordance with
the terms hereof before and after judgment, and before and after the
commencement of any proceeding under any Debtor Relief Law.
3.02 FEES. In addition to certain fees described in subsections (i) and
(j) of SECTION 2.05:
(a) COMMITMENT FEES. The Borrower shall pay to the Administrative
Agent for the account of each Lender in accordance with (i) its Construction
Loan Commitment Percentage, a
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commitment fee (the "CONSTRUCTION LOAN COMMITMENT FEE") equal to the Applicable
Rate TIMES the actual daily amount by which the Construction Loan Commitments
exceed the sum of the Outstanding Amount of Construction Loans and (ii) its
Working Capital Loan Commitment Percentage, a commitment fee (the "WORKING
CAPITAL LOAN COMMITMENT FEE," and together with the Construction Loan Commitment
Fee, the "COMMITMENT FEES") equal to the Applicable Rate TIMES the actual daily
amount by which the Working Capital Commitments exceed the sum of (y) the
Outstanding Amount of Working Capital Loans (excluding any Outstanding Amount of
Swing Line Loans), and (z) the Outstanding Amount of L/C Obligations. The
Commitment Fees shall accrue at all times during the Availability Period,
including at any time during which one or more of the conditions in ARTICLE V is
not met, and shall be due and payable quarterly in arrears on the last Business
Day of each March, June, September and December, commencing with the first such
date to occur after the Closing Date, and on the Construction Loan Maturity Date
and the Working Capital Loan Maturity Date. The Commitment Fees shall be
calculated quarterly in arrears, and if there is any change in the Applicable
Rate during any quarter, the actual daily amount shall be computed and
multiplied by the Applicable Rate separately for each period during such quarter
that such Applicable Rate was in effect.
(b) OTHER FEES.
(i) The Borrower shall pay to each of the Co-Lead Arrangers
and the Administrative Agent for their own respective accounts fees in the
amounts and at the times separately agreed upon in writing. Such fees shall be
fully earned when paid and shall not be refundable for any reason whatsoever.
(ii) The Borrower shall pay to the Lenders such fees as shall
have been separately agreed upon in writing in the amounts and at the times so
specified. Such fees shall be fully earned when paid and shall not be refundable
for any reason whatsoever.
3.03 COMPUTATION OF INTEREST AND FEES. All computations of interest for
Base Rate Loans when the Base Rate is determined by Bank of America's "prime
rate" shall be made on the basis of a year of 365 or 366 days, as the case may
be, and actual days elapsed. All other computations of fees and interest shall
be made on the basis of a 360-day year and actual days elapsed (which results in
more fees or interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accrue on each Loan for the day on which the
Loan is made, and shall not accrue on a Loan, or any portion thereof, for the
day on which the Loan or such portion is paid, PROVIDED that any Loan that is
repaid on the same day on which it is made shall, subject to SECTION 3.05(a),
bear interest for one day.
3.04 EVIDENCE OF DEBT.
(a) The Credit Extensions made by each Lender shall be evidenced by
one or more accounts or records maintained by such Lender and by the
Administrative Agent in the ordinary course of business. The accounts or records
maintained by the Administrative Agent and each Lender shall be conclusive
absent manifest error of the amount of the Credit Extensions made by the Lenders
to the Borrower and the interest and payments thereon. Any failure to so record
or any error in doing so shall not, however, limit or otherwise affect the
obligation of the Borrower hereunder to pay any amount owing with respect to the
Obligations. In the event of any conflict
48
between the accounts and records maintained by any Lender and the accounts and
records of the Administrative Agent in respect of such matters, the accounts and
records of the Administrative Agent shall control in the absence of manifest
error. Upon the request of any Lender made through the Administrative Agent, the
Borrower shall execute and deliver to such Lender (through the Administrative
Agent) a Note, which shall evidence such Lender's Loans in addition to such
accounts or records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its Loans and
payments with respect thereto.
(b) In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with
its usual practice accounts or records evidencing the purchases and sales by
such Lender of participations in Letters of Credit and Swing Line Loans. In the
event of any conflict between the accounts and records maintained by the
Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control
in the absence of manifest error.
3.05 PAYMENTS GENERALLY.
(a) All payments to be made by the Borrower shall be made without
condition or deduction for any counterclaim, defense, recoupment or setoff.
Except as otherwise expressly provided herein, all payments by the Borrower
hereunder shall be made to the Administrative Agent, for the account of the
respective Lenders to which such payment is owed, at the Administrative Agent's
Office in Dollars and in immediately available funds not later than 2:00 p.m. on
the date specified herein. The Administrative Agent will promptly distribute to
each Lender its Construction Loan Commitment Percentage, Working Capital Loan
Commitment Percentage or Term Loan Percentage, as applicable (or other
applicable share as provided herein), of such payment in like funds as received
by wire transfer to such Lender's Lending Office. All payments received by the
Administrative Agent after 2:00 p.m. shall be deemed received on the next
succeeding Business Day and any applicable interest or fee shall continue to
accrue.
(b) If any payment to be made by the Borrower shall come due on a day
other than a Business Day, payment shall be made on the next following Business
Day, and such extension of time shall be reflected in computing interest or
fees, as the case may be.
(c) Unless the Borrower or any Lender has notified the Administrative
Agent, prior to the date any payment is required to be made by it to the
Administrative Agent hereunder, that the Borrower or such Lender, as the case
may be, will not make such payment, the Administrative Agent may assume that the
Borrower or such Lender, as the case may be, has timely made such payment and
may (but shall not be so required to), in reliance thereon, make available a
corresponding amount to the Person entitled thereto. If and to the extent that
such payment was not in fact made to the Administrative Agent in immediately
available funds, then:
(i) if the Borrower failed to make such payment, each Lender
shall forthwith on demand repay to the Administrative Agent the portion of such
assumed payment that was made available to such Lender in immediately available
funds, together with interest thereon in
49
respect of each day from and including the date such amount was made available
by the Administrative Agent to such Lender to the date such amount is repaid to
the Administrative Agent in immediately available funds at the Federal Funds
Rate from time to time in effect; and
(ii) if any Lender failed to make such payment, such Lender
shall forthwith on demand pay to the Administrative Agent the amount thereof in
immediately available funds, together with interest thereon for the period from
the date such amount was made available by the Administrative Agent to the
Borrower to the date such amount is recovered by the Administrative Agent (the
"COMPENSATION PERIOD") at a rate per annum equal to the Federal Funds Rate from
time to time in effect. If such Lender pays such amount to the Administrative
Agent, then such amount shall constitute such Lender's Loan included in the
applicable Borrowing. If such Lender does not pay such amount forthwith upon the
Administrative Agent's demand therefor, the Administrative Agent may make a
demand therefor upon the Borrower, and the Borrower shall pay such amount to the
Administrative Agent, together with interest thereon for the Compensation Period
at a rate per annum equal to the rate of interest applicable to the applicable
Borrowing. Nothing herein shall be deemed to relieve any Lender from its
obligation to fulfill its Commitment or to prejudice any rights which the
Administrative Agent or the Borrower may have against any Lender as a result of
any default by such Lender hereunder.
A notice of the Administrative Agent to any Lender or the Borrower with
respect to any amount owing under this subsection (c) shall be conclusive,
absent manifest error.
(d) If any Lender makes available to the Administrative Agent funds
for any Loan to be made by such Lender as provided in the foregoing provisions
of this ARTICLE III, and such funds are not made available to the Borrower by
the Administrative Agent because the conditions to the applicable Credit
Extension set forth in ARTICLE V are not satisfied or waived in accordance with
the terms hereof, the Administrative Agent shall return such funds (in like
funds as received from such Lender) to such Lender, without interest.
(e) The obligations of the Lenders hereunder to make Loans and to fund
participations in Letters of Credit and Swing Line Loans are several and not
joint. The failure of any Lender to make any Loan or to fund any such
participation on any date required hereunder shall not relieve any other Lender
of its corresponding obligation to do so on such date, and no Lender shall be
responsible for the failure of any other Lender to so make its Loan or purchase
its participation.
(f) Nothing herein shall be deemed to obligate any Lender to obtain
the funds for any Loan in any particular place or manner or to constitute a
representation by any Lender that it has obtained or will obtain the funds for
any Loan in any particular place or manner.
3.06 SHARING OF PAYMENTS. If, other than as expressly provided
elsewhere herein, any Lender shall obtain on account of the Loans made by it, or
the participations in L/C Obligations or in Swing Line Loans held by it, any
payment (whether voluntary, involuntary, through the exercise of any right of
set-off, or otherwise) in excess of its ratable share (or other share
contemplated hereunder) thereof, such Lender shall immediately (a) notify the
Administrative Agent of such fact, and (b) purchase from the other Lenders such
participations in the Loans made by them and/or such subparticipations in the
participations in L/C Obligations or Swing
50
Line Loans held by them, as the case may be, as shall be necessary to cause such
purchasing Lender to share the excess payment in respect of such Loans or such
participations, as the case may be, pro rata with each of them; PROVIDED,
HOWEVER, that if all or any portion of such excess payment is thereafter
recovered from the purchasing Lender under any of the circumstances described in
SECTION 11.06 (including pursuant to any settlement entered into by the
purchasing Lender in its discretion), such purchase shall to that extent be
rescinded and each other Lender shall repay to the purchasing Lender the
purchase price paid therefor, together with an amount equal to such paying
Lender's ratable share (according to the proportion of (i) the amount of such
paying Lender's required repayment to (ii) the total amount so recovered from
the purchasing Lender) of any interest or other amount paid or payable by the
purchasing Lender in respect of the total amount so recovered, without further
interest thereon. The Borrower agrees that any Lender so purchasing a
participation from another Lender may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-off, but subject
to SECTION 11.09) with respect to such participation as fully as if such Lender
were the direct creditor of the Borrower in the amount of such participation.
The Administrative Agent will keep records (which shall be conclusive and
binding in the absence of manifest error) of participations purchased under this
Section and will in each case notify the Lenders following any such purchases or
repayments. Each Lender that purchases a participation pursuant to this Section
shall from and after such purchase have the right to give all notices, requests,
demands, directions and other communications under this Agreement with respect
to the portion of the Obligations purchased to the same extent as though the
purchasing Lender were the original owner of the Obligations purchased.
3.07 SECURITY. The Obligations shall be secured as provided in the
Security Documents.
ARTICLE IV.
TAXES, YIELD PROTECTION AND ILLEGALITY
4.01 TAXES.
(a) Any and all payments by the Borrower to or for the account of the
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, assessments, fees, withholdings or similar
charges, and all liabilities with respect thereto, EXCLUDING, in the case of the
Administrative Agent and each Lender, taxes imposed on or measured by its
overall net income, and franchise taxes imposed on it (in lieu of net income
taxes), by the jurisdiction (or any political subdivision thereof) under the
Laws of which the Administrative Agent or such Lender, as the case may be, is
organized or maintains a lending office (all such non-excluded taxes, duties,
levies, imposts, deductions, assessments, fees, withholdings or similar charges,
and liabilities being hereinafter referred to as "TAXES"). If the Borrower shall
be required by any Laws to deduct any Taxes from or in respect of any sum
payable under any Loan Document to the Administrative Agent or any Lender, (i)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section), each of the Administrative Agent and such Lender receives
an amount equal to the sum it would have received had no such deductions been
made, (ii) the Borrower shall make such deductions, (iii) the Borrower shall pay
the full amount deducted to
51
the relevant taxation authority or other authority in accordance with applicable
Laws, and (iv) within 30 days after the date of such payment, the Borrower shall
furnish to the Administrative Agent (which shall forward the same to such
Lender) the original or a certified copy of a receipt evidencing payment
thereof.
(b) In addition, the Borrower agrees to pay any and all present or
future stamp, court or documentary taxes and any other excise or property taxes
or charges or similar levies which arise from any payment made under any Loan
Document or from the execution, delivery, performance, enforcement or
registration of, or otherwise with respect to, any Loan Document (hereinafter
referred to as "OTHER TAXES").
(c) If the Borrower shall be required to deduct or pay any Taxes or
Other Taxes from or in respect of any sum payable under any Loan Document to the
Administrative Agent or any Lender, the Borrower shall also pay to the
Administrative Agent or to such Lender, as the case may be, at the time interest
is paid, such additional amount that the Administrative Agent or such Lender
specifies is necessary to preserve the after-tax yield (after factoring in all
taxes, including taxes imposed on or measured by net income) that the
Administrative Agent or such Lender would have received if such Taxes or Other
Taxes had not been imposed.
(d) The Borrower agrees to indemnify the Administrative Agent and each
Lender for, from and against (i) the full amount of Taxes and Other Taxes
(including any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by the Administrative Agent and such
Lender, (ii) amounts payable under SECTION 4.01(c) and (iii) any liability
(including additions to tax, penalties, interest and expenses) arising therefrom
or with respect thereto, in each case whether or not such Taxes or Other Taxes
were correctly or legally imposed or asserted by the relevant Governmental
Authority. Payment under this subsection (d) shall be made within 30 days after
the date the Lender or the Administrative Agent makes a demand therefor.
4.02 ILLEGALITY. If any Lender determines that any Law has made it
unlawful, or that any Governmental Authority has asserted that it is unlawful,
for any Lender or its applicable Lending Office to make, maintain or fund
Eurodollar Rate Loans, or to determine or charge interest rates based upon the
Eurodollar Rate, then, on notice thereof by such Lender to the Borrower through
the Administrative Agent, any obligation of such Lender to make or continue
Eurodollar Rate Loans or to convert Base Rate Loans to Eurodollar Rate Loans
shall be suspended until such Lender notifies the Administrative Agent and the
Borrower that the circumstances giving rise to such determination no longer
exist. Upon receipt of such notice, the Borrower shall, upon demand from such
Lender (with a copy to the Administrative Agent), prepay or, if applicable,
convert all Eurodollar Rate Loans of such Lender to Base Rate Loans, either on
the last day of the Interest Period therefor, if such Lender may lawfully
continue to maintain such Eurodollar Rate Loans to such day, or immediately, if
such Lender may not lawfully continue to maintain such Eurodollar Rate Loans.
Upon any such prepayment or conversion, the Borrower shall also pay accrued
interest on the amount so prepaid or converted. Each Lender agrees to designate
a different Lending Office if such designation will avoid the need for such
notice and will not, in the good faith judgment of such Lender, otherwise be
materially disadvantageous to such Lender.
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4.03 INABILITY TO DETERMINE RATES. If the Required Lenders determine
that for any reason adequate and reasonable means do not exist for determining
the Eurodollar Base Rate for any requested Interest Period with respect to a
proposed Eurodollar Rate Loan, or that the Eurodollar Base Rate for any
requested Interest Period with respect to a proposed Eurodollar Rate Loan does
not adequately and fairly reflect the cost to such Lenders of funding such Loan,
the Administrative Agent will promptly so notify the Borrower and each Lender.
Thereafter, the obligation of the Lenders to make or maintain Eurodollar Rate
Loans shall be suspended until the Administrative Agent (upon the instruction of
the Required Lenders) revokes such notice. Upon receipt of such notice, the
Borrower may revoke any pending request for a Borrowing of, conversion to or
continuation of Eurodollar Rate Loans or, failing that, will be deemed to have
converted such request into a request for a Construction Loan Borrowing or
Working Capital Borrowing, as applicable, of Base Rate Loans in the amount
specified therein.
4.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that as a result of the introduction of
or any change in or in the interpretation of any Law, or such Lender's
compliance therewith, there shall be any increase in the cost to such Lender of
agreeing to make or making, funding or maintaining Eurodollar Rate Loans or (as
the case may be) issuing or participating in Letters of Credit, or a reduction
in the amount received or receivable by such Lender in connection with any of
the foregoing (excluding for purposes of this subsection (a) any such increased
costs or reduction in amount resulting from (i) Taxes or Other Taxes (as to
which SECTION 4.01 shall govern), (ii) changes in the basis of taxation of
overall net income or overall gross income by the United States or any foreign
jurisdiction or any political subdivision of either thereof under the Laws of
which such Lender is organized or has its Lending Office, and (iii) reserve
requirements utilized in the determination of the Eurodollar Rate), then from
time to time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such increased cost or reduction.
(b) If any Lender determines that the introduction of any Law
regarding capital adequacy or any change therein or in the interpretation
thereof, or compliance by such Lender (or its Lending Office) therewith, has the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender for such reduction.
4.05 FUNDING LOSSES. Upon demand of any Lender (with a copy to the
Administrative Agent) from time to time, the Borrower shall promptly compensate
such Lender for and hold such Lender harmless from any loss, cost or expense
incurred by it as a result of:
(a) any continuation, conversion, payment or prepayment of any Loan
other than a Base Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
53
(b) any failure by the Borrower (for a reason other than the failure
of such Lender to make a Loan) to prepay, borrow, continue or convert any Loan
other than a Base Rate Loan on the date or in the amount notified by the
Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such Loan or
from fees payable to terminate the deposits from which such funds were obtained.
The Borrower shall also pay any customary administrative fees charged by such
Lender in connection with the foregoing.
For purposes of calculating amounts payable by the Borrower to the Lenders under
this SECTION 4.05, each Lender shall be deemed to have funded each Eurodollar
Rate Loan made by it at the Eurodollar Base Rate used in determining the
Eurodollar Rate for such Loan by a matching deposit or other borrowing in the
London interbank eurodollar market for a comparable amount and for a comparable
period, whether or not such Eurodollar Rate Loan was in fact so funded.
4.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION. A
certificate of the Administrative Agent or any Lender claiming compensation
under this ARTICLE IV and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, the Administrative Agent or such Lender may use any
reasonable averaging and attribution methods.
4.07 SURVIVAL. All of the Borrower's obligations under this ARTICLE IV
shall survive termination of the Aggregate Commitments and repayment of all
other Obligations hereunder.
ARTICLE V.
CONDITIONS PRECEDENT TO CREDIT EXTENSIONS
5.01 CONDITIONS OF INITIAL CREDIT EXTENSION. The obligation of each
Lender to make its initial Credit Extension hereunder is subject to satisfaction
of the following conditions precedent:
(a) LOAN DOCUMENTS, CERTIFICATES AND OPINIONS. The Administrative
Agent's receipt of the following, each of which shall be originals or facsimiles
(followed promptly by originals) unless otherwise specified, each properly
executed by a Responsible Officer of the signing Loan Party, each dated the
Closing Date (or, in the case of certificates of governmental officials, a
recent date before the Closing Date) and each in form and substance satisfactory
to the Administrative Agent and its legal counsel:
(i) executed counterparts of this Agreement, the Security
Documents, the Guaranty Agreements and any other applicable Loan Documents,
sufficient in number for distribution to the Administrative Agent, each Lender
and the Borrower;
(ii) a Note executed by the Borrower in favor of each Lender
requesting a Note;
(iii) a certificate of Responsible Officers of each Loan Party
certifying as to the incumbency and genuineness of the signature of each officer
of each Loan Party executing Loan
54
Documents to which it is a party and certifying that attached thereto is a true,
correct and complete copy of (A) the articles or certificate of incorporation or
formation of each Loan Party and all amendments thereto, certified as of a
recent date by the appropriate Governmental Authority in its jurisdiction of
organization, (B) the bylaws or other governing document of each Loan Party as
in effect on the Closing Date, (C) resolutions duly adopted by the board of
directors or other governing body of each Loan Party authorizing the borrowings
contemplated hereunder and the execution, delivery and performance of the Loan
Documents to which it is a party, and (D) certificates as of a recent date of
the good standing of each Loan Party under the laws of its jurisdiction of
organization and, to the extent requested by the Administrative Agent, each
other jurisdiction where each Loan Party is qualified to do business;
(iv) (A) a favorable opinion of Xxxxx Xxxxx Xxxx LLC, counsel
to the Loan Parties, addressed to the Administrative Agent and each Lender, in
form and substance satisfactory to the Administrative Agent, and (B) a favorable
opinion of local counsel to each of the Loan Parties, addressed to the
Administrative Agent and each Lender, in form and substance satisfactory to the
Administrative Agent, in each jurisdiction where a mortgage (or deed of trust,
as applicable) is filed as required under the Loan Documents;
(v) a certificate signed by a Responsible Officer of the
Borrower certifying that either (A) attaching copies of all consents, licenses
and approvals required in connection with the execution, delivery and
performance by such Loan Party and the validity against such Loan Party of the
Loan Documents to which it is a party, and such consents, licenses and approvals
shall be in full force and effect (including, without limitation, the consent of
all third party owners of each Term Loan Subsidiary with respect to the pledge,
by the Borrower or a Subsidiary thereof, of the ownership interests owned
thereby in such Term Loan Subsidiary and the Collateral Assignment of each
Intercompany Note and all collateral security securing the payment of each such
Intercompany Note), or (B) stating that no such consents, licenses or approvals
are so required;
(vi) a certificate signed by a Responsible Officer of the
Borrower certifying (A) that the conditions specified in SECTIONS 5.03(a) and
(b) have been satisfied, (B) that since December 31, 2002, there has been no
event or circumstance that has had or could be reasonably expected to have,
either individually or in the aggregate, a Material Adverse Effect upon, the
operations, business, assets, liabilities (actual or contingent) or financial
condition of the Borrower or the Borrower and its Subsidiaries taken as a whole
or in the facts and information regarding such entities as represented to date;
and (C) a calculation of the Consolidated Leverage Ratio as of the last day of
the fiscal quarter of the Borrower most recently ended prior to the Closing
Date;
(vii) evidence that all insurance required to be maintained
pursuant to the Loan Documents has been obtained and is in effect;
(viii) an Intercompany Term Loan Note by each Term Loan
Subsidiary;
(ix) a mortgage (or deed of trust, as applicable) and/or
collateral agreement, as applicable, granting a security interest in all present
and future assets and properties of the Term Loan Subsidiary (including, without
limitation, accounts receivable, inventory, real property,
55
machinery, equipment, contracts, license rights (subject to the rights of the
licensees), and general intangibles to secure the prompt payment of the
Intercompany Term Loan Note made thereby;
(x) a Collateral Assignment of each Intercompany Term Loan
Note;
(xi) receipt of Borrower's Reorganization Agreement and
operating agreement, and the terms and conditions thereof are satisfactory to
the Administrative Agent in its sole discretion;
(xii) receipt of IP Holdco's Organization Documents and the
amendments requested by the Administrative Agent thereto, and the terms and
conditions thereof are satisfactory to the Administrative Agent in its sole
discretion;
(xiii) receipt of an amendment to the License Agreement, dated
April 1, 1997, between IP Holdco and the Borrower, and the terms and conditions
thereof are satisfactory to the Administrative Agent in its sole discretion; and
(xiv) such other assurances, certificates, documents, consents
or opinions as the Administrative Agent, the L/C Issuer, the Swing Line Lender
or the Required Lenders reasonably may require.
(b) COLLATERAL.
(i) FILINGS AND RECORDINGS. All filings and recordations that
are necessary to perfect the security interests of the Lenders in the Collateral
shall have been received by the Administrative Agent and the Administrative
Agent shall have received evidence satisfactory to the Administrative Agent that
upon such filings and recordations such security interests constitute valid and
perfected first priority Liens therein.
(ii) PLEDGED COLLATERAL. The Administrative Agent shall have
received (A) original stock certificates or other certificates evidencing the
capital stock or other ownership interests pledged pursuant to the Security
Documents, together with an undated stock power for each such certificate duly
executed in blank by the registered owner thereof and (B) each original
promissory note pledged pursuant to the Security Documents.
(iii) LIEN SEARCH. The Administrative Agent shall have received
the results of a Lien search (including a search as to judgments, pending
litigation and tax matters) made against the Borrower and the Loan Parties under
the UCC (or applicable judicial docket) as in effect in any state in which any
of its assets are located, indicating among other things that its assets are
free and clear of any Lien except for Permitted Liens.
(iv) HAZARD AND LIABILITY INSURANCE. The Administrative Agent
shall have received certificates of insurance, evidence of payment of all
insurance premiums for the current policy year of each, and, if requested by the
Administrative Agent, copies (certified by a Responsible Officer) of insurance
policies in the form required under the Security Documents and otherwise in form
and substance reasonably satisfactory to the Administrative Agent.
56
(v) TITLE INSURANCE. The Administrative Agent shall have
received a marked-up commitment for a policy of title insurance, insuring
Lenders' first priority Liens and showing no Liens prior to Lenders' Liens other
than for ad valorem taxes not yet due and payable, with title insurance
companies acceptable to the Administrative Agent on the real property subject to
the Security Documents with the final title insurance policy, being delivered
within thirty (30) days after the Closing Date. Further, the Borrowers agree to
provide or obtain any customary affidavits and indemnities as may be required or
necessary to obtain title insurance satisfactory to the Administrative Agent.
(vi) TITLE EXCEPTIONS. The Administrative Agent shall have
received copies of all recorded documents creating exceptions to the title
policy referred to in SECTION 5.01(b)(v).
(vii) MATTERS RELATING TO FLOOD HAZARD PROPERTIES. The
Administrative Agent shall have received a certification form from the National
Research Center, or any successor agency thereto, regarding each parcel of real
property securing any portion of the Obligations.
(viii) SURVEYS. The Administrative Agent shall have received
copies of as-built surveys of a recent date not more than thirty (30) days prior
to the Closing Date (or such other date as is acceptable to the Administrative
Agent) of each parcel of real property subject to Security Documents certified
as of a recent date by a registered engineer or land surveyor. Each such survey
shall be accompanied by an affidavit (a "SURVEY AFFIDAVIT") of an authorized
signatory of the owner of such property stating that there have been no
improvements or encroachments to the property since the date of the respective
survey such that the existing survey is no longer accurate. Such survey shall
show the area of such property, all boundaries of the land with courses and
distances indicated, including chord bearings and arc and chord distances for
all curves, and shall show dimensions and locations of all easements, private
drives, roadways, and other facts materially affecting such property, and shall
show such other details as the Administrative Agent may reasonably request,
including, without limitation, any encroachment (and the extent thereof in feet
and inches) onto the property or by any of the improvements on the property upon
adjoining land or upon any easement burdening the property; any improvements, to
the extent constructed, and the relation of the improvements by distances to the
boundaries of the property, to any easements burdening the property, and to the
established building lines and the street lines; and if improvements are
existing, (A) a statement of the number of each type of parking space required
by applicable laws, ordinances, orders, rules, regulations, restrictive
covenants and easements affecting the improvement, and the number of each such
type of parking space provided, and (B) the locations of all utilities serving
the improvement.
(ix) ENVIRONMENTAL ASSESSMENTS. The Administrative Agent shall
have received a Phase I environmental assessment (such Phase I environmental
assessment not to be dated more than two (2) years prior to the Closing Date)
and such other environmental report reasonably requested by the Administrative
Agent regarding each parcel of real property subject to Security Documents by an
environmental engineering firm acceptable to the Administrative Agent showing no
environmental conditions or liabilities in violation of Environmental Laws that
could reasonably be expected to have a Material Adverse Effect.
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(x) OTHER REAL PROPERTY INFORMATION. The Administrative Agent
shall have received such other certificates, documents and information as are
reasonably requested by the Lenders, including, without limitation, engineering
and structural reports, permanent certificates of occupancy and evidence of
zoning compliance, each in form and substance satisfactory to the Administrative
Agent.
(xi) ASSET APPRAISALS. Receipt and review of asset appraisal
reports satisfactory to the Administrative Agent prepared no more than twelve
(12) months prior to the Closing Date with respect to (A) all of the real and
personal property of the Borrower and the Guarantors (other than the Designated
JV Subsidiaries) demonstrating that the aggregate amount of the Term Loans does
not exceed the sum of (I) 50% of the net book value of equipment owned by the
Borrower and the Guarantors (other than the Designated JV Subsidiaries) and (II)
75% of the aggregate face amount of the applicable Intercompany Term Loan Notes
securing the Term Loans, and (B) all of the real and personal property of each
Term Loan Subsidiary showing that the amount of the Intercompany Term Loan Notes
of such Term Loan Subsidiary does not exceed the sum of (I) 80% of the appraised
value of the real property being financed or refinanced by such Intercompany
Term Loan Note, and (II) 50% of the net book value of equipment being refinanced
by such Intercompany Term Loan Note.
(c) PAYMENT OF FEES. Any fees required to be paid on or before the
Closing Date shall have been paid.
(d) ATTORNEYS FEES. Unless waived by the Administrative Agent, the
Borrower shall have paid all Attorney Costs of the Administrative Agent to the
extent invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute its reasonable estimate of Attorney Costs
incurred or to be incurred by it through the closing proceedings (provided that
such estimate shall not thereafter preclude a final settling of accounts between
the Borrower and the Administrative Agent).
(e) FINANCIAL CONDITION CERTIFICATE. The Borrower shall have delivered
to the Administrative Agent a certificate, in form and substance satisfactory to
the Administrative Agent, and certified as accurate by a Responsible Officer,
that (A) the Borrower and each of its Subsidiaries are each Solvent, (B) the
Borrower's payables are current and not past due, (C) attached thereto are
calculations evidencing compliance on a PRO FORMA basis with the covenants
contained in SECTION 8.15, and (D) the financial projections previously
delivered to the Administrative Agent represent the good faith estimates
(utilizing reasonable assumptions) of the financial condition and operations of
the Borrower and its Subsidiaries.
(f) FINANCIAL STATEMENTS. The Administrative Agent and the Lenders
shall have received (A) the consolidating balance sheet of the Borrower and its
Subsidiaries and the related consolidating statements of income or operations
for the fiscal year ended December 31, 2002 (the "CONSOLIDATING FINANCIAL
STATEMENTS"), (B) the audited consolidated balance sheet of the Borrower and its
Subsidiaries and the related consolidated statements of income or operations,
shareholders' equity and cash flows for the fiscal years ended December 26,
1999, December 31, 2000, December 30, 2001 and December 31, 2002 (the
"CONSOLIDATED FINANCIAL STATEMENTS," together with the Consolidating Financial
Statements, the "AUDITED FINANCIAL STATEMENTS"), (C) the unaudited consolidating
balance sheet of the Borrower and its Subsidiaries and the related
58
consolidating statements of income or operations for the fiscal quarter ended
April 1, 2003 (the "CONSOLIDATING QUARTERLY FINANCIAL STATEMENTS"), and (D) the
unaudited consolidated balance sheet of the Borrower and its Subsidiaries and
the related consolidated statements of income or operations, shareholders'
equity and cash flows for the fiscal quarter ended April 1, 2003 (the
"CONSOLIDATING QUARTERLY FINANCIAL STATEMENTS," together with Consolidating
Unaudited Quarterly Financial Statement, the "UNAUDITED QUARTERLY FINANCIAL
STATEMENTS"), all in form and substance satisfactory to the Administrative Agent
and the Lenders and prepared in accordance with GAAP, and such other financial
information as the Administrative Agent may reasonably request.
(g) NO INJUNCTION, ETC. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed
before any Governmental Authority to enjoin, restrain, or prohibit, or to obtain
substantial damages in respect of, or which is related to or arises out of the
Transaction Documents or the consummation of the transactions contemplated
thereby, or which, in the Administrative Agent's reasonable discretion, would
make it inadvisable to consummate the transactions contemplated by this
Agreement and the other Loan Documents.
(h) GOVERNMENTAL AND THIRD PARTY APPROVALS. The Loan Parties shall
have received all material governmental, shareholder and third party consents
(including Xxxx-Xxxxx-Xxxxxx clearance) and approvals necessary (as determined
in the reasonable discretion of the Administrative Agent) in connection with the
transactions contemplated by this Agreement and the other Loan Documents and the
other transactions contemplated hereby and all applicable waiting periods shall
have expired without any action being taken by any Person that could reasonably
be expected restrain, prevent or impose any material adverse conditions on any
of the Loan Parties or such other transactions or that could seek or threaten
any of the foregoing, and no law or regulation shall be applicable which in the
reasonable judgment of the Administrative Agent could reasonably be expected to
have such effect.
(i) NOTICE OF BORROWING. The Administrative Agent shall have received
a Loan Notice or Swing Line Notice, as applicable, from the Borrower, and a
Notice of Account Designation specifying the account or accounts to which the
proceeds of any Loans are to be disbursed.
(j) OTHER DOCUMENTS. All opinions, certificates and other instruments
and all proceedings in connection with the transactions contemplated by this
Agreement shall be reasonably satisfactory in form and substance to the
Administrative Agent. The Administrative Agent shall have received copies of all
other documents, certificates and instruments reasonably requested thereby, with
respect to the transactions contemplated by this Agreement.
5.02 ADDITIONAL CONDITIONS FOR EACH CONSTRUCTION LOAN. In addition to
the conditions set forth in SECTION 5.01, the obligation of each Lender to make
each Construction Loan hereunder is subject each time the Borrower requests a
Construction Loan to satisfaction of the following conditions:
(a) Execution and delivery of each of the following, in form and
substance satisfactory to the Administrative Agent:
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(i) an Intercompany Construction Loan Note by each Guarantor
(excluding Guarantors that are wholly-owned Subsidiaries) receiving the proceeds
of such Construction Loan;
(ii) a Collateral Assignment of the Intercompany Construction
Loan Note delivered in connection with such Construction Loan;
(iii) a mortgage (or deed of trust, as applicable) and/or
collateral agreement, as applicable, granting a security interest in all present
and future assets and properties of the Guarantor (including, without
limitation, accounts receivable, inventory, real property, machinery, equipment,
contracts, license rights (subject to the rights of the licensees), and general
intangibles to secure the prompt payment of the Guaranty Agreement made thereby;
and
(iv) if applicable, all documents required pursuant to SECTION
7.15 of this Agreement.
(b) Receipt by the Administrative Agent of such other usual and
customary documents, instruments and certificates for construction credit
facilities of this type, including, without limitation, those items listed in
SECTION 5.01(b) with respect to the personal and real property being financed or
refinanced with the proceeds of such Construction Loan, in form and substance
satisfactory to the Administrative Agent.
(c) Receipt and review of asset appraisal reports satisfactory to the
Agents prepared no more than twelve (12) months prior to the request for such
Construction Loan with respect to all of the real and personal property of the
Borrower or the applicable Guarantor to be financed or refinanced with the
proceeds of such Construction Loan demonstrating that such Construction Loan
does not exceed the sum of (i) 80% of the aggregate appraised value of the real
property and improvements being financed or refinanced with the proceeds of such
Construction Loan, and (ii) 50% of the appraised value of the equipment being
financed or refinanced with the proceeds of such Construction Loan.
(d) The Administrative Agent shall have received a Phase I
environmental assessment (such Phase I environmental assessment not to be dated
more than two (2) years prior to the request for such Construction Loan) and
such other environmental report reasonably requested by the Administrative Agent
with respect to each parcel of real property of the Borrower or the applicable
Guarantor to be financed or refinanced with the proceeds of such Construction
Loan by an environmental engineering firm acceptable to the Administrative Agent
showing no environmental conditions or liabilities in violation of Environmental
Laws that could reasonably be expected to have a Material Adverse Effect.
5.03 CONDITIONS TO ALL CREDIT EXTENSIONS. The obligation of each Lender
to honor any Request for Credit Extension is subject to the following conditions
precedent:
(a) The representations and warranties of the Borrower and each other
Loan Party contained in ARTICLE VI or any other Loan Document, or which are
contained in any document furnished at any time under or in connection herewith
or therewith, shall be true and correct on and as of the date of such Credit
Extension, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they shall be true and
correct as of
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such earlier date, and except that for purposes of this SECTION 5.03, the
representations and warranties contained in subsections (a) and (b) of SECTION
6.05 shall be deemed to refer to the most recent statements furnished pursuant
to clauses (a) and (b), respectively, of SECTION 7.01.
(b) No Default or Event of Default shall exist, or would result from
such proposed Credit Extension.
(c) The Administrative Agent and, if applicable, the L/C Issuer or the
Swing Line Lender shall have received a Request for Credit Extension in
accordance with the requirements hereof.
(d) ADDITIONAL DOCUMENTS. The Administrative Agent shall have received
each additional document, instrument, legal opinion or other item reasonably
requested by it.
Each Request for Credit Extension submitted by the Borrower shall be deemed
to be a representation and warranty that the conditions specified in SECTIONS
5.03(a) and (b) have been satisfied on and as of the date of the applicable
Credit Extension.
ARTICLE VI.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent and the
Lenders that:
6.01 EXISTENCE, QUALIFICATION AND POWER; COMPLIANCE WITH LAWS. The
Borrower and each of its Subsidiaries (a) is a corporation, partnership or
limited liability company duly organized or formed, validly existing and in good
standing under the Laws of the jurisdiction of its incorporation or
organization, (b) has all requisite power and authority and all requisite
governmental licenses, authorizations, consents and approvals to (i) own its
assets and carry on its business as now being conducted and hereafter proposed
to be conducted and (ii) execute, deliver and perform its obligations under the
Loan Documents to which it is a party, (c) is duly qualified and is licensed and
in good standing under the Laws of each jurisdiction where its ownership, lease
or operation of properties or the conduct of its business requires such
qualification or license, and (d) is in compliance with all Laws. The
jurisdictions in which the Borrower and its Subsidiaries are organized and
qualified to do business as of the Closing Date are described on SCHEDULE 6.01.
6.02 AUTHORIZATION; NO CONTRAVENTION. The execution, delivery and
performance by each Loan Party of each Loan Document to which such Person is
party, have been duly authorized by all necessary corporate or other
organizational action, and do not and will not (a) contravene the terms of any
of such Person's Organization Documents; (b) conflict with or result in any
breach or contravention of, or the creation of any Lien (other than a Permitted
Lien) under, (i) any Contractual Obligation to which such Person is a party or
(ii) any order, injunction, writ or decree of any Governmental Authority or any
arbitral award to which such Person or its property is subject; or (c) violate
any Law.
6.03 GOVERNMENTAL AUTHORIZATION; OTHER CONSENTS. No approval, consent,
exemption, authorization, or other action by, or notice to, or filing with, any
Governmental
61
Authority or any other Person is necessary or required in connection with the
execution, delivery or performance by, or enforcement against, any Loan Party of
this Agreement or any other Loan Document. Each of the Borrower and its
Subsidiaries (a) has all Governmental Approvals required by any applicable Law
for it to conduct its business, each of which is in full force and effect, is
final and not subject to review on appeal and is not the subject of any pending
or, to the best of its knowledge, threatened attack by direct or collateral
proceeding, (b) is in compliance with each Governmental Approval applicable to
it and in compliance with all other applicable Laws relating to it or any of its
respective properties and (b) has timely filed all material reports, documents
and other materials required to be filed by it under all applicable Laws with
any Governmental Authority and has retained all material records and documents
required to be retained by it under applicable Law.
6.04 BINDING EFFECT. This Agreement has been, and each other Loan
Document, when delivered hereunder, will have been, duly executed and delivered
by each Loan Party that is party thereto. This Agreement constitutes, and each
other Loan Document when so delivered will constitute, a legal, valid and
binding obligation of such Loan Party, enforceable against each Loan Party that
is party thereto in accordance with its terms.
6.05 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in accordance
with GAAP consistently applied throughout the period covered thereby, except as
otherwise expressly noted therein; (ii) fairly present the financial condition
of the Borrower and its Subsidiaries as of the date thereof and their results of
operations for the period covered thereby in accordance with GAAP consistently
applied throughout the period covered thereby, except as otherwise expressly
noted therein; and (iii) show all indebtedness and other liabilities, direct or
contingent, of the Borrower and its Subsidiaries as of the date thereof,
including liabilities for taxes, commitments and Indebtedness.
(b) The Unaudited Quarterly Financial Statements (i) were prepared in
accordance with GAAP consistently applied throughout the period covered thereby,
except as otherwise expressly noted therein, and (ii) fairly present the
financial condition of the Borrower and its Subsidiaries as of the date thereof
and their results of operations for the period covered thereby, subject, in the
case of clauses (i) and (ii), to the absence of footnotes and to normal year-end
audit adjustments. SCHEDULE 6.05 sets forth all indebtedness and other
liabilities, direct or contingent, of the Borrower and its consolidated
Subsidiaries as of the date of such financial statements, including liabilities
for taxes, commitments and Indebtedness.
(c) Since the date of the Audited Financial Statements, there has been
no event or circumstance, either individually or in the aggregate, that has had
or could reasonably be expected to have a Material Adverse Effect.
(d) As of the Closing Date and after giving effect to each Credit
Extension made hereunder, the Borrower and each of its Subsidiaries will be
Solvent.
6.06 LITIGATION. Except as specifically disclosed in SCHEDULE 6.06,
there are no actions, suits, investigations or proceedings pending, or overtly
threatened in writing, at law, in
62
equity, in arbitration or before any Governmental Authority, by or against the
Borrower or any of its Subsidiaries or against any of their properties or
revenues that (a) purport to affect or pertain to this Agreement or any other
Loan Document, or any of the transactions contemplated hereby, or (b) either
individually or in the aggregate, if determined adversely, could reasonably be
expected to have a Material Adverse Effect.
6.07 NO DEFAULT. Neither the Borrower nor any Subsidiary is in default
under or with respect to any Contractual Obligation that could, either
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect. No Default or an Event of Default has occurred and is continuing
or would result from the consummation of the transactions contemplated by this
Agreement or any other Loan Document.
6.08 OWNERSHIP OF PROPERTY; LIENS. Each of the Borrower and each
Subsidiary has good record and marketable title in fee simple to, or valid
leasehold interests in, all real property necessary or used in the ordinary
conduct of its business, and legal title to all of its personal property and
assets, including, but not limited to, those reflected on the balance sheets of
the Borrower and its Subsidiaries delivered pursuant to SECTION 7.01, except
those which have been disposed of by the Borrower or its Subsidiaries subsequent
to such date which dispositions have been in the ordinary course of business or
as otherwise expressly permitted hereunder. The property of the Borrower and its
Subsidiaries is subject to no Liens, other than Liens permitted by SECTION 8.01.
SCHEDULE 6.08 sets forth a list and explanation thereto of all properties (real
estate and improvements) owned by the Borrower or any Guarantor, in fee, lease
or ground lease, that will not be subject to a lien in favor of the
Administrative Agent, the Lenders, the Swing Line Lender and the L/C Issuer
pursuant to the Security Documents.
6.09 ENVIRONMENTAL COMPLIANCE.
(a) Except as set forth on SCHEDULE 6.09 ("DISCLOSED ENVIRONMENTAL
MATTERS"), the properties owned, leased or operated by the Borrower and its
Subsidiaries do not contain, any Hazardous Materials in amounts or
concentrations which (i) constitute a violation of applicable Environmental Laws
or (ii) could give rise to liability under applicable Environmental Laws;
(b) The Borrower, each Subsidiary and such properties and all
operations conducted in connection therewith are in compliance, and have been in
compliance, with all applicable Environmental Laws, and there is no
contamination at, under or about such properties or such operations which could
interfere with the continued operation of such properties or impair the fair
saleable value thereof;
(c) Except for Disclosed Environmental Matters, neither the Borrower
nor any Subsidiary thereof has received any notice of violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters, Hazardous Materials, or compliance with Environmental
Laws, nor does the Borrower or any Subsidiary thereof have knowledge or reason
to believe that any such notice will be received or is being threatened;
(d) Hazardous Materials have not been transported or disposed of to or
from the properties owned, leased or operated by the Borrower and its
Subsidiaries in violation of, or in a manner or to a location which could give
rise to liability under, Environmental Laws, nor have
63
any Hazardous Materials been generated, treated, stored or disposed of at, on or
under any of such properties in violation of, or in a manner that could give
rise to liability under, any applicable Environmental Laws;
(e) No judicial proceedings or governmental or administrative action
is pending, or overtly threatened in writing, under any Environmental Law to
which the Borrower or any Subsidiary thereof is or will be named as a
potentially responsible party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law
with respect to Borrower, any Subsidiary or such properties or such operations;
and
(f) There has been no release, or to the best of the Borrower's
knowledge, threat of release, of Hazardous Materials at or from properties
owned, leased or operated by the Borrower or any Subsidiary, now or in the past,
in violation of or in amounts or in a manner that could give rise to liability
under Environmental Laws.
6.10 INSURANCE. The properties of the Borrower and its Subsidiaries are
insured with financially sound and reputable insurance companies reasonably
acceptable to the Administrative Agent and the Required Lenders not Affiliates
of the Borrower, in such amounts, with such deductibles and covering such risks
as are customarily carried by companies engaged in similar businesses and owning
similar properties in localities where the Borrower or the applicable Subsidiary
operates.
6.11 TAXES. The Borrower and its Subsidiaries have filed all Federal,
state and other material tax returns and reports required to be filed, and have
paid all Federal, state and other material taxes, assessments, fees and other
governmental charges levied or imposed upon them or their properties, income or
assets otherwise due and payable, except those which are being contested in good
faith by appropriate proceedings diligently conducted and for which adequate
reserves have been provided in accordance with GAAP. Such returns accurately
reflect in all material respects all liability for taxes of the Borrower and its
Subsidiaries for the periods covered thereby. Except as set forth on SCHEDULE
6.11, there are no ongoing audits or examinations or, to the knowledge of the
Borrower, other investigations by any Governmental Authority of the tax
liability of the Borrower and its Subsidiaries. No Governmental Authority has
asserted any Lien or other claim against the Borrower or any Subsidiary thereof
with respect to unpaid taxes which has not been discharged or resolved. The
charges, accruals and reserves on the books of the Borrower and any of its
Subsidiaries in respect of federal, state, local and other taxes for all Fiscal
Years and portions thereof since the organization of the Borrower and any of its
Subsidiaries are in the judgment of the Borrower adequate, and the Borrower does
not anticipate any additional taxes or assessments for any of such years. There
is no proposed tax assessment against the Borrower or any Subsidiary that would,
if made, have a Material Adverse Effect.
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6.12 ERISA COMPLIANCE.
(a) As of the Closing Date, neither the Borrower nor any ERISA
Affiliate maintains or contributes to, or has any obligation under, any Plans
other than those identified on SCHEDULE 6.12.
(b) Each Plan is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other Federal or state Laws. Each
Plan that is intended to qualify under Section 401(a) of the Code has received a
favorable determination letter from the IRS or an application for such a letter
is currently being processed by the IRS with respect thereto and, to the best
knowledge of the Borrower, nothing has occurred which would prevent, or cause
the loss of, such qualification. The Borrower and each ERISA Affiliate have made
all required contributions to each Plan subject to Section 412 of the Code, and
no application for a funding waiver or an extension of any amortization period
pursuant to Section 412 of the Code has been made with respect to any Plan.
(c) There are no pending, or overtly threatened in writing, claims,
actions or lawsuits, or action by any Governmental Authority, with respect to
any Plan that could be reasonably be expected to have a Material Adverse Effect.
There has been no prohibited transaction or violation of the fiduciary
responsibility rules with respect to any Plan that has resulted or could
reasonably be expected to result in a Material Adverse Effect.
(d) (i) No ERISA Event has occurred or is reasonably expected to
occur; (ii) no Pension Plan has any Unfunded Pension Liability; (iii) neither
the Borrower nor any ERISA Affiliate has incurred, or reasonably expects to
incur, any liability under Title IV of ERISA with respect to any Pension Plan
(other than premiums due and not delinquent under Section 4007 of ERISA); (iv)
neither the Borrower nor any ERISA Affiliate has incurred, or reasonably expects
to incur, any liability (and no event has occurred which, with the giving of
notice under Section 4219 of ERISA, would result in such liability) under
Sections 4201 or 4243 of ERISA with respect to a Multiemployer Plan; (v) neither
the Borrower nor any ERISA Affiliate has engaged in a transaction that could be
subject to Sections 4069 or 4212(c) of ERISA; and (vi) neither the Borrower nor
any ERISA Affiliate has engaged in a nonexempt prohibited transaction described
in Section 406 of the ERISA or Section 4975 of the Code.
6.13 SUBSIDIARIES. As of the Closing Date, the Borrower has no
Subsidiaries other than those specifically disclosed in Part (a) of SCHEDULE
6.13 and has no equity investments in any other corporation or entity other than
those specifically disclosed in Part(b) of SCHEDULE 6.13. As of the Closing
Date, the capitalization of the Borrower and its Subsidiaries consists of the
number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on SCHEDULE 6.13. All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable, with no personal liability attaching to the ownership thereof,
and not subject to any preemptive or similar rights. The shareholders of the
Subsidiaries of the Borrower and the number of shares owned by each as of the
Closing Date are described on SCHEDULE 6.13. As of the Closing Date, there are
no outstanding stock purchase warrants, subscriptions, options, securities,
instruments or other rights of any type or nature whatsoever, which are
convertible into, exchangeable for or otherwise provide for or permit the
65
issuance of capital stock of the Borrower or its Subsidiaries, except as
described on SCHEDULE 6.13.
6.14 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT.
(a) Neither the Borrower nor any of its Subsidiaries is engaged,
principally or as one of its important activities, in the business of
"purchasing" or "carrying" any "margin stock" (as each such term is defined or
used in Regulation U issued by the FRB), or extending credit for the purpose of
purchasing or carrying margin stock. No part of the proceeds of any of the Loans
or Letters of Credit will be used for purchasing or carrying margin stock or for
any purpose which violates, or which would be inconsistent with, the provisions
of Regulation T, U or X issued by the FRB.
(b) None of the Borrower, any Person Controlling the Borrower, or any
Subsidiary (i) is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company," within the meaning of the Public Utility Holding Company
Act of 1935, or (ii) is or is required to be registered as an "investment
company" under the Investment Company Act of 1940.
6.15 MATERIAL CONTRACTS. SCHEDULE 6.15 sets forth a complete and
accurate list of all Material Contracts of the Borrower and its Subsidiaries in
effect as of the Closing Date not listed on any other Schedule hereto. Other
than as set forth in SCHEDULE 6.15, each such Material Contract is, and after
giving effect to the consummation of the transactions contemplated by the Loan
Documents will be, in full force and effect in accordance with the terms
thereof. Neither the Borrower nor any Subsidiary (nor, to the knowledge of the
Borrower, any other party thereto) is in breach of or in default under any
Material Contract in any material respect.
6.16 DISCLOSURE. The Borrower has disclosed to the Administrative Agent
and the Lenders all agreements, instruments and corporate or other restrictions
to which it or any of its Subsidiaries is subject, and all other matters known
to it, that, individually or in the aggregate, could reasonably be expected to
result in a Material Adverse Effect. No report, financial statement, certificate
or other information furnished (whether in writing or orally) by or on behalf of
any Loan Party to the Administrative Agent or any Lender in connection with the
transactions contemplated hereby and the negotiation of this Agreement or
delivered hereunder (as modified or supplemented by other information so
furnished) contains any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading; PROVIDED that, with
respect to projected financial information, the Borrower represents only that
such information was prepared in good faith based upon assumptions believed to
be reasonable at the time.
6.17 COMPLIANCE WITH LAWS. Each of the Borrower and each Subsidiary is
in compliance in all material respects with the requirements of all Laws and all
orders, writs, injunctions and decrees applicable to it or to its properties,
except in such instances in which (a) such requirement of Law or order, writ,
injunction or decree is being contested in good faith by appropriate proceedings
diligently conducted or (b) the failure to comply therewith, either
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individually or in the aggregate, could not reasonably be expected to have a
Material Adverse Effect.
6.18 INTELLECTUAL PROPERTY; LICENSES, ETC. Except as set forth on
SCHEDULE 6.18, IP Holdco, a Subsidiary of the Borrower, owns, or possess the
non-exclusive right to use, all of the trademarks, service marks, trade names,
copyrights, patents, patent rights, licenses and other intellectual property
rights (collectively, "IP RIGHTS") that are reasonably necessary for the
operation of the respective businesses of the Borrower and its Subsidiaries,
without conflict with the rights of any other Person. The Borrower and IP Holdco
have not received any notice of any slogan or other advertising device, product,
process, method, substance, part or other material now employed, or now
contemplated to be employed, by the Borrower or any Subsidiary that infringes
upon any rights held by any other Person. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such rights, and neither IP Holdco, the Borrower nor any
Subsidiary thereof is liable to any Person for infringement under applicable Law
with respect to any such rights as a result of its business operations.
6.19 EMPLOYEE RELATIONS. Each of the Borrower and its Subsidiaries has
a stable work force in place and is not, as of the Closing Date, party to any
collective bargaining agreement nor has any labor union been recognized as the
representative of its employees. The Borrower knows of no pending, threatened or
contemplated strikes, work stoppage or other collective labor disputes involving
its employees or those of its Subsidiaries.
6.20 BURDENSOME PROVISIONS. Neither the Borrower nor any Subsidiary
thereof is a party to any indenture, agreement, lease or other instrument, or
subject to any corporate or partnership restriction, Governmental Approval or
applicable Law which is so unusual or burdensome as in the foreseeable future
could be reasonably expected to have a Material Adverse Effect. The Borrower and
its Subsidiaries do not presently anticipate that future expenditures needed to
meet the provisions of any statutes, orders, rules or regulations of a
Governmental Authority will be so burdensome as to have a Material Adverse
Effect. No Subsidiary is party to any agreement or instrument or otherwise
subject to any restriction or encumbrance that restricts or limits its ability
to make dividend payments or other distributions in respect of its capital stock
to the Borrower or any Subsidiary or to transfer any of its assets or properties
to the Borrower or any other Subsidiary in each case other than existing under
or by reason of the Loan Documents or applicable Law.
6.21 TAX SHELTER REGULATIONS. The Borrower does not intend to treat
the Loans and/or Letters of Credit and related transactions as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the Borrower determines to take any action inconsistent
with such intention, it will promptly notify the Administrative Agent thereof.
If the Borrower so notifies the Administrative Agent, the Borrower acknowledges
that one or more of the Lenders may treat its Committed Loans and/or its
interest in Swing Line Loans and/or Letters of Credit as part of a transaction
that is subject to Treasury Regulation Section 301.6112-1, and such Lender or
Lenders, as applicable, will maintain the lists and other records required by
such Treasury Regulation.
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6.22 SURVIVAL OF REPRESENTATIONS AND WARRANTIES, ETC. All
representations and warranties set forth in this Article VI and all
representations and warranties contained in any certificate, or any of the Loan
Documents (including, but not limited to, any such representation or warranty
made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations
and warranties made under this Agreement shall be made or deemed to be made at
and as of the Closing Date (except those that are expressly made as of a
specific date), shall survive the Closing Date and shall not be waived by the
execution and delivery of this Agreement, any investigation made by or on behalf
of the Lenders or any borrowing hereunder.
ARTICLE VII.
AFFIRMATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall, and shall (except in the
case of the covenants set forth in SECTIONS 7.01, 7.02, 7.03 and 7.11) cause
each Subsidiary to:
7.01 FINANCIAL STATEMENTS. Deliver to the Administrative Agent and each
Lender, in form and detail satisfactory to the Administrative Agent and the
Required Lenders:
(a) as soon as available, but in any event within 90 days after the
end of each Fiscal Year of the Borrower, a Consolidated and Consolidating
balance sheet of the Borrower and its Subsidiaries as at the end of such Fiscal
Year, the related Consolidated and Consolidating statements of income or
operations for such Fiscal Year and the related consolidated statements of
shareholders' equity and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous Fiscal Year, all in
reasonable detail and prepared in accordance with GAAP, audited and accompanied
by a report and opinion of an independent certified public accountant of
nationally recognized standing reasonably acceptable to the Required Lenders,
which report and opinion shall be prepared in accordance with generally accepted
auditing standards and shall not be subject to any "going concern" or like
qualification or exception or any qualification or exception as to the scope of
such audit; and
(b) as soon as available, but in any event within 45 days after the
end of each of the first three Fiscal Quarters of each Fiscal Year of the
Borrower, a Consolidated and Consolidating balance sheet of the Borrower and its
Subsidiaries as at the end of such Fiscal Quarter, the related Consolidated and
Consolidating statements of income or operations for such Fiscal Quarter and for
the portion of the Fiscal Year then ended and the related consolidated
statements of shareholders' equity and cash flows for such Fiscal Quarter and
for the portion of the Fiscal Year then ended, setting forth in each case in
comparative form the figures for the corresponding Fiscal Quarter of the
previous Fiscal Year and the corresponding portion of the previous Fiscal Year,
all in reasonable detail and certified by a Responsible Officer of the Borrower
as fairly presenting the financial condition, results of operations,
shareholders' equity and cash flows of the Borrower and its Subsidiaries on a
Consolidated and Consolidating basis in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes.
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As to any information contained in materials furnished pursuant to SECTION
7.02(d), the Borrower shall not be separately required to furnish such
information under clause (a) or (b) above, but the foregoing shall not be in
derogation of the obligation of the Borrower to furnish the information and
materials described in subsections (a) and (b) above at the times specified
therein.
7.02 CERTIFICATES; OTHER INFORMATION. Deliver to the Administrative
Agent and each Lender, in form and detail satisfactory to the Administrative
Agent and the Required Lenders:
(a) concurrently with the delivery of the financial statements
referred to in Section 7.01(a), a certificate of its independent certified
public accountants certifying such financial statements and stating that in the
course of its audit (without any obligation to conduct any other independent
investigation) no knowledge was obtained of any Default with the terms,
covenants, provisions or conditions of Section 8.15 in so far as they relate to
accounting matters or, if any such Default shall exist, stating the nature and
status of such event;
(b) concurrently with the delivery of the financial statements
referred to in SECTIONS 7.01(a) and (b), a duly completed Compliance Certificate
signed by a Responsible Officer of the Borrower;
(c) promptly after any request by the Administrative Agent or any
Lender, copies of any detailed audit reports, management letters or
recommendations submitted to the Manager of the Borrower by independent
accountants in connection with the accounts or books of the Borrower or any
Subsidiary, or any audit of any of them;
(d) promptly after the same are available, copies of each annual
report, proxy or financial statement or other report or communication sent to
the stockholders of the Borrower (excluding customary and routine correspondence
regarding distributions or financial statements), and copies of all annual,
regular, periodic and special reports and registration statements which the
Borrower may file or be required to file with the SEC under Section 13 or 15(d)
of the Securities Exchange Act of 1934, and not otherwise required to be
delivered to the Administrative Agent pursuant hereto; and
(e) promptly after the Borrower has notified the Administrative Agent
of any intention by the Borrower to treat the Loans and/or Letters of Credit and
related transactions as being a "reportable transaction" (within the meaning of
Treasury Regulation Section 1.6011-4), a duly completed copy of IRS Form 8886 or
any successor form;
(f) as soon as available, but in any event within thirty (30) days
after the end of each calendar month (and, upon the occurrence and during the
continuation of a Default, on a more frequent basis if requested by the
Administrative Agent), a duly completed certificate (the "MONTHLY REPORTING
CERTIFICATE"), in form and substance satisfactory to the Administrative Agent,
setting forth in detail as of the last Business Day of such month (i) the
Working Capital Outstandings, the Construction in Progress Amount and the
calculations thereof, and (ii) the aggregate amount of Equipment Advances,
signed by a Responsible Officer of the Borrower; and
(g) promptly, such additional information regarding the business,
financial or corporate affairs of the Borrower or any Subsidiary, or compliance
with the terms of the Loan
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Documents, as the Administrative Agent or any Lender may from time to time
reasonably request.
Documents required to be delivered pursuant to SECTION 7.01(a) or (b) or
SECTION 7.02(d) (to the extent any such documents are included in materials
otherwise filed with the SEC) may be delivered electronically and if so
delivered, shall be deemed to have been delivered on the date (i) on which the
Borrower posts such documents, or provides a link thereto on the Borrower's
website on the Internet at the website address listed on SCHEDULE 11.02; or (ii)
on which such documents are posted on the Borrower's behalf on
IntraLinks/IntraAgency or another relevant website, if any, to which each Lender
and the Administrative Agent have access (whether a commercial, third-party
website or whether sponsored by the Administrative Agent); PROVIDED that: (i)
the Borrower shall deliver paper copies of such documents to the Administrative
Agent or any Lender that requests the Borrower to deliver such paper copies
until a written request to cease delivering paper copies is given by the
Administrative Agent or such Lender and (ii) the Borrower shall notify (which
may be by facsimile or electronic mail) the Administrative Agent and each Lender
of the posting of any such documents and provide to the Administrative Agent by
electronic mail electronic versions (I.E., soft copies) of such documents.
Notwithstanding anything contained herein, in every instance the Borrower shall
be required to provide paper copies of the Compliance Certificates required by
SECTION 7.02(b) to the Administrative Agent and each of the Lenders. Except for
such Compliance Certificates, the Administrative Agent shall have no obligation
to request the delivery or to maintain copies of the documents referred to
above, and in any event shall have no responsibility to monitor compliance by
the Borrower with any such request for delivery, and each Lender shall be solely
responsible for requesting delivery to it or maintaining its copies of such
documents.
7.03 NOTICES. Promptly notify the Administrative Agent and each Lender:
(a) of (i) the occurrence of any Default or Event of Default, (ii) the
occurrence or existence of any event or circumstance that foreseeably will
become a Default or Event of Default or (iii) the occurrence of any event which
constitutes or which with the passage of time or giving of notice or both would
constitute a default or event of default under any Material Contract to which
the Borrower or any of its Subsidiaries is a party or by which the Borrower or
any Subsidiary thereof or any of their respective properties may be bound;
(b) of any matter that has resulted or could reasonably be expected to
result in a Material Adverse Effect, including (i) breach or non-performance of,
or any default under, a Contractual Obligation of the Borrower or any
Subsidiary; (ii) any dispute, litigation, investigation, proceeding or
suspension between the Borrower or any Subsidiary and any Governmental
Authority; (iii) the commencement of, or any material development in, any
litigation or proceeding affecting the Borrower or any Subsidiary, including
pursuant to any applicable Environmental Laws; and (iv) any dispute, litigation,
investigation, proceeding or suspension between the Borrower or any Subsidiary
and any Person.
(c) of the occurrence of any ERISA Event;
(d) of any material change in accounting policies or financial
reporting practices by the Borrower or any Subsidiary; and
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(e) of any of the events described in SECTION 2.07(f).
Each notice pursuant to this Section shall be accompanied by a statement of
a Responsible Officer of the Borrower setting forth details of the occurrence
referred to therein and stating what action the Borrower has taken and proposes
to take with respect thereto. Each notice pursuant to SECTION 7.03(a) shall
describe with particularity any and all provisions of this Agreement and any
other Loan Document that have been breached.
7.04 PAYMENT OF OBLIGATIONS. Pay and discharge as the same shall become
due and payable, all its obligations and liabilities, including (a) all tax
liabilities, assessments and governmental charges or levies upon it or its
properties or assets, unless (i) the same are being contested in good faith by
appropriate proceedings diligently conducted and adequate reserves in accordance
with GAAP are being maintained by the Borrower or such Subsidiary or (ii) the
failure to so pay such liabilities, assessments or levies could not reasonably
be expected to have a Material Adverse Effect; (b) all lawful claims which, if
unpaid, would by law become a Lien upon its property; and (c) all Indebtedness
(in an amount equal to or in excess of the Threshold Amount), as and when due
and payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness.
7.05 PRESERVATION OF EXISTENCE, ETC. (a) Preserve, renew and maintain
in full force and effect its legal existence and good standing under the Laws of
the jurisdiction of its organization except in a transaction permitted by
SECTION 8.04 or 8.05; (b) take all reasonable action to maintain all rights,
privileges, permits and licenses necessary or desirable in the normal conduct of
its business, except to the extent that failure to do so could not reasonably be
expected to have a Material Adverse Effect; and (c) preserve or renew all of its
registered patents, trademarks, trade names and service marks, the
non-preservation of which could reasonably be expected to have a Material
Adverse Effect.
7.06 MAINTENANCE OF PROPERTIES. (a) Maintain, preserve and protect all
of its material properties and equipment necessary in the operation of its
business in good working order and condition, ordinary wear and tear excepted;
and (b) make all necessary repairs thereto and renewals and replacements thereof
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect; and (c) use the standard of care typical in the
industry in the operation and maintenance of its facilities.
7.07 MAINTENANCE OF INSURANCE. In addition to the specific insurance
requirements of the Security Documents, maintain with Royal Indemnity Ins. Co.,
Lexington Insurance Company, Royal Surplus Lines Company, or other financially
sound and reputable insurance companies reasonably acceptable to the
Administrative Agent and the Required Lenders not Affiliates of the Borrower,
insurance with respect to its properties and business against loss or damage of
the kinds customarily insured against by Persons engaged in the same or similar
business, of such types and in such amounts as are customarily carried under
similar circumstances by such other Persons and providing for not less than 30
days' prior notice to the Administrative Agent of termination, lapse or
cancellation of such insurance and deliver to the Administrative Agent upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
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7.08 COMPLIANCE WITH LAWS. Except where the failure to comply could
reasonably be expected to have a Material Adverse Effect, comply in all material
respects with the requirements of all Laws and all orders, writs, injunctions
and decrees applicable to it or to its business or property, except in such
instances in which such requirement of Law or order, writ, injunction or decree
is being contested in good faith by appropriate proceedings diligently
conducted, and maintain in full force and effect all Governmental Approvals
applicable to it or to its business or property.
7.09 ENVIRONMENTAL LAWS. In addition to and without limiting the
generality of SECTION 7.08, (a) comply with, and ensure such compliance by all
tenants and subtenants with all applicable Environmental Laws and obtain and
comply with and maintain, and ensure that all tenants and subtenants, if any,
obtain and comply with and maintain, any and all licenses, approvals,
notifications, registrations or permits required by applicable Environmental
Laws, (b) conduct and complete all investigations, studies, sampling and
testing, and all remedial, removal and other actions required under
Environmental Laws, and promptly comply with all lawful orders and directives of
any Governmental Authority regarding Environmental Laws, and (c) defend,
indemnify and hold harmless the Administrative Agent and the Lenders, and their
respective parents, Subsidiaries, Affiliates, employees, agents, officers and
directors, from and against any claims, demands, penalties, fines, liabilities,
settlements, damages, costs and expenses of whatever kind or nature known or
unknown, contingent or otherwise, arising out of, or in any way relating to the
presence of Hazardous Materials, or the violation of, noncompliance with or
liability under any Environmental Laws applicable to the operations of the
Borrower or any such Subsidiary, or any orders, requirements or demands of
Governmental Authorities related thereto, including, without limitation,
reasonable attorney's and consultant's fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that
any of the foregoing directly result from the gross negligence or willful
misconduct of the party seeking indemnification therefor.
7.10 COMPLIANCE WITH ERISA. In addition to and without limiting the
generality of SECTION 7.08, (a) except where the failure to so comply could not,
individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, (i) comply with all material applicable provisions of ERISA and
the regulations and published interpretations thereunder with respect to all
Employee Benefit Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan,
(iii) not participate in any prohibited transaction that could result in any
civil penalty under ERISA or tax under the Code and (iv) operate each Employee
Benefit Plan in such a manner that will not incur any tax liability under
Section 4980B of the Code or any liability to any qualified beneficiary as
defined in Section 4980B of the Code and (b) furnish to the Administrative Agent
upon the Administrative Agent's request such additional information about any
Employee Benefit Plan as may be reasonably requested by the Administrative
Agent.
7.11 COMPLIANCE WITH AGREEMENTS. Comply in all respects with each term,
condition and provision of all leases, agreements and other instruments entered
into in the conduct of its business including, without limitation, any Material
Contract; provided, that the Borrower or any such Subsidiary may contest any
such lease, agreement or other instrument in good faith through applicable
proceedings so long as adequate reserves are maintained in accordance with GAAP.
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7.12 BOOKS AND RECORDS. (a) Maintain proper books of record and
account, in which full, true and correct entries in conformity with GAAP
consistently applied shall be made of all financial transactions and matters
involving the assets and business of the Borrower or such Subsidiary, as the
case may be; and (b) maintain such books of record and account in material
conformity with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over the Borrower or such Subsidiary, as the case may
be.
7.13 INSPECTION RIGHTS. Permit representatives and independent
contractors of the Administrative Agent and each Lender to visit and inspect any
of its properties, to examine its corporate, financial and operating records,
and make copies thereof or abstracts therefrom, and to discuss its affairs,
finances and accounts with its directors, officers, and independent public
accountants, all at the reasonable expense of the Borrower and at such
reasonable times during normal business hours upon reasonable advance notice to
the Borrower; PROVIDED, that so long as no Default or Event of Default has
occurred and is continuing, the Borrower shall not be required to pay for more
than one (1) visit per calendar year; PROVIDED, FURTHER, that when an Event of
Default exists the Administrative Agent or any Lender (or any of their
respective representatives or independent contractors) may do any of the
foregoing at the expense of the Borrower at any time and as often as the
Administrative Agent or any such Lender may reasonably desire during normal
business hours and without advance notice.
7.14 USE OF PROCEEDS.
(a) Use the proceeds of the Term Loan for the benefit of the Term Loan
Subsidiaries, (i) to refinance existing Indebtedness of the Term Loan
Subsidiaries, and (ii) for the other purposes described herein, and not in
contravention of any Law or of any Loan Document.
(b) Use the proceeds of the Construction Loans for the benefit of the
Borrower or any Guarantor, (i) to finance or refinance the construction costs of
newly completed and/or existing Restaurants owned by the Borrower or such
Guarantor, (ii) to finance or refinance equipment owned by the Borrower or any
Guarantor, (iii) to fund Permitted Acquisitions, and (iv) for the other purposes
described herein, and not in contravention of any Law or of any Loan Document.
(c) Use the proceeds of the Working Capital Loans, Swing Line Loans
and Letters of Credit for the benefit of the Borrower or any Guarantor, (i) for
general corporate purposes of the Borrower and the Guarantors, including,
without limitation, working capital, capital expenditures in the ordinary course
of business, and other lawful corporate purposes, (ii) to refinance existing
Indebtedness of the Borrower and the Guarantors which such Restaurants have not
yet been completed, (iii) to pay fees and expenses related to the Loans, (iv) to
finance the construction costs of Restaurants owned by the Borrower or such
Guarantor, and (v) for the other purposes described herein, and not in
contravention of any Law or of any Loan Document.
7.15 ADDITIONAL SUBSIDIARIES. Notify the Administrative Agent at the
time that (a) any Person becomes a direct or indirect wholly-owned Subsidiary of
the Borrower or a Designated JV Subsidiary, and (b) such Person creates,
acquires or engages in any business operations or owns assets with a fair market
value in excess of $50,000, and promptly thereafter (and in any event within
thirty (30) days) cause such Person to (a) become a Guarantor by executing and
delivering to the Administrative Agent a counterpart of a Guaranty Agreement or
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such other document as the Administrative Agent shall deem appropriate for such
purpose, (b) deliver to the Administrative Agent a duly executed supplement to
each Security Document and comply with the terms of each Security Document, (c)
deliver to the Administrative Agent documents of the types referred to in
clauses (iii), (v) and (vi) of SECTION 5.01(a) and favorable opinions of counsel
to such Person (which shall cover, among other things, the legality, validity,
binding effect and enforceability of the documentation referred to in clauses
(a) and (b)) and (d) deliver to the Administrative Agent such other documents
and closing certificates as may be reasonably requested by the Administrative
Agent, all in form, content and scope reasonably satisfactory to the
Administrative Agent.
7.16 REQUIRED JOINT VENTURE DISTRIBUTIONS. Make Required Joint Venture
Distributions within forty-five (45) days after the end of each calendar month.
7.17 FURTHER ASSURANCES. Make, execute and deliver all such additional
and further acts, things, deeds and instruments as the Administrative Agent or
the Required Lenders (through the Administrative Agent) may reasonably require
to document and consummate the transactions contemplated hereby and to vest
completely in and insure the Administrative Agent and the Lenders their
respective rights under this Agreement, the Notes, the Letters of Credit and the
other Loan Documents.
ARTICLE VIII.
NEGATIVE COVENANTS
So long as any Lender shall have any Commitment hereunder, any Loan or
other Obligation hereunder shall remain unpaid or unsatisfied, or any Letter of
Credit shall remain outstanding, the Borrower shall not, nor shall it permit any
Subsidiary to, directly or indirectly:
8.01 LIENS. Create, incur, assume or suffer to exist any Lien upon any
of its property, assets or revenues, whether now owned or hereafter acquired,
other than the following:
(a) Liens pursuant to any Loan Document;
(b) Liens existing on the date hereof and listed on SCHEDULE 8.01 and
any renewals or extensions thereof, PROVIDED that the property covered thereby
is not increased and any renewal or extension of the obligations secured or
benefited thereby is permitted by SECTION 8.03(b);
(c) Liens for taxes not yet due or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(d) carriers', warehousemen's, mechanics', materialmen's, repairmen's
or other like Liens arising in the ordinary course of business which are not
overdue for a period of more than 30 days or which are being contested in good
faith and by appropriate proceedings diligently conducted, if adequate reserves
with respect thereto are maintained on the books of the applicable Person;
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(e) pledges or deposits in the ordinary course of business in
connection with workers' compensation, unemployment insurance and other social
security legislation, other than any Lien imposed by ERISA;
(f) deposits to secure the performance of bids, trade contracts and
leases (other than Indebtedness), statutory obligations, surety bonds (other
than bonds related to judgments or litigation), performance bonds and other
obligations of a like nature incurred in the ordinary course of business;
(g) easements, rights-of-way, restrictions and other similar
encumbrances affecting real property which do not in any case materially detract
from the value of the property subject thereto or materially interfere with the
ordinary conduct of the business of the applicable Person;
(h) Liens securing judgments for the payment of money not constituting
an Event of Default under SECTION 9.01(h) or securing appeal or other surety
bonds related to such judgments;
(i) Liens securing Indebtedness permitted under SECTION 8.03(e);
PROVIDED that (i) such Liens do not at any time encumber any property other than
the property financed by such Indebtedness and (ii) the Indebtedness secured
thereby does not exceed the cost or fair market value, whichever is lower, of
the property being acquired on the date of acquisition;
(j) Liens securing Indebtedness permitted under SECTION 8.03(h);
PROVIDED that such Liens do not at any time encumber any property other than the
property owned by the Joint Venture Subsidiary obligated with respect to such
Indebtedness; and
(k) Liens arising solely by virtue of any contractual or statutory or
common law provisions relating to banker's liens, rights to set-off or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution provided that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the Loan Party or any Subsidiary in excess of those set forth by
regulations promulgated by the Board of Governors of the Federal Reserve System,
(ii) such deposit account is not intended by the Loan Party or such Subsidiary
to provide collateral to the depositary institution and (iii) such deposit
account is subject to a control agreement pursuant to the terms of the Security
Documents.
8.02 INVESTMENTS. Make any Investments, except:
(a) Investments held by the Borrower or such Subsidiary in the form of
cash equivalents or short-term marketable securities;
(b) advances to officers, directors and employees of the Borrower and
Subsidiaries in an aggregate amount not to exceed $500,000 at any time
outstanding, for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of the Borrower in any wholly-owned Subsidiary and
Investments of any Subsidiary in the Borrower;
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(d) Investments consisting of extensions of credit in the nature of
accounts receivable or notes receivable arising from the grant of trade credit
in the ordinary course of business, and Investments received in satisfaction or
partial satisfaction thereof from financially troubled account debtors to the
extent reasonably necessary in order to prevent or limit loss;
(e) Guarantees permitted by SECTION 8.03;
(f) intercompany loans (i) evidenced by (A) an Intercompany
Construction Loan Note or (B) an Intercompany Term Loan Notes, and (ii) made by
the Borrower to Subsidiary Guarantors, among Subsidiary Guarantors or to the
Borrower from its Subsidiaries;
(g) Investments in the form of acquisitions of (i) all or
substantially all of the business or a line of business (whether by the
acquisition of capital stock, assets or any combination thereof) of any other
Person, or (ii) all or any portion of the equity ownership interests of a Joint
Venture Subsidiary not owned by the Borrower or any Subsidiary thereof (any of
the acquisition described in the foregoing clauses (i) and (ii), a "PERMITTED
ACQUISITION"); PROVIDED that (1) the entity to be acquired (or with respect to
which such acquisition is made) is a going concern, (2) the entity to be
acquired shall engage in a business or the assets to be acquired shall be used
in a business described in SECTION 8.08, (3) the Borrower shall have delivered
to the Administrative Agent prior to the closing date of the acquisition a
description of the acquisition, (4) the Borrower shall have certified on or
before the closing date of the acquisition, in writing and in a form acceptable
to the Administrative Agent and the Lenders, that the acquisition has been
approved (if applicable) by the board of directors or equivalent governing body
of the entity to be acquired, (5) no Default or Event of Default shall have
occurred and be continuing both before and after giving effect to the
acquisition, (6) the Borrower shall have complied with SECTION 7.15, (7) the
Borrower shall have delivered to the Administrative Agent a Compliance
Certificate dated as of the closing date of the acquisition demonstrating, in
form and substance reasonably satisfactory thereto, the PRO FORMA compliance,
immediately before and after the closing date of the acquisition, with each
covenant contained in SECTION 8.15, (8) the entity to be acquired is (A) an
existing franchisee of the Borrower or Texas Roadhouse Development Corporation,
or (B) an existing Joint Venture Subsidiary (or with respect to which such
acquisition is made), (9) the Borrower shall have complied with the requirements
of SECTION 5.02, and (10) the Borrower shall have obtained the prior written
consent of the Administrative Agent and the Required Lenders prior to the
consummation of such acquisition if the aggregate purchase price of all
acquisitions (including, without limitation, all cash payments and other
obligations assumed or earn out payments) consummated during the term of this
Agreement (including, without limitation, such acquisition) exceeds $15,000,000;
(h) Investments in connection with the financing of equipment
permitted under SECTION 8.03;
(i) Investments constituting Capital Expenditures permitted under this
Agreement;
(j) Investments (i) existing on the date hereof and listed on SCHEDULE
8.02, or (ii) existing on the date hereof in Subsidiaries existing on the date
hereof; and
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(k) Investments of the Borrower in any Joint Venture Subsidiary formed
after the Closing Date; PROVIDED, HOWEVER, that the aggregate amount of all such
Investments during the term hereof shall not exceed $5,000,000 in the aggregate;
PROVIDED, FURTHER, that the Borrower may not form more than two (2) Joint
Venture Subsidiaries in any Fiscal Year during the term hereof that are engaging
in any business operations or own assets with a fair market value in excess of
$50,000.
8.03 INDEBTEDNESS. Create, incur, assume or suffer to exist any
Indebtedness, except:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness outstanding on the date hereof and listed on SCHEDULE
8.03 and any refinancings, refundings, renewals or extensions thereof; PROVIDED
that the amount of such Indebtedness is not increased at the time of such
refinancing, refunding, renewal or extension except by an amount equal to a
reasonable premium or other reasonable amount paid, and fees and expenses
reasonably incurred, in connection with such refinancing and by an amount equal
to any existing commitments unutilized thereunder;
(c) Indebtedness of the Borrower and its Subsidiaries in the form of
intercompany loans permitted in SECTION 8.02(f);
(d) obligations (contingent or otherwise) of the Borrower or any
Subsidiary existing or arising under any Swap Contract, PROVIDED that (i) such
obligations are (or were) entered into by such Person in the ordinary course of
business for the purpose of directly mitigating risks associated with
liabilities, commitments, investments, assets, or property held or reasonably
anticipated by such Person, or changes in the value of securities issued by such
Person, and not for purposes of speculation or taking a "market view;" and (ii)
such Swap Contract does not contain any provision exonerating the non-defaulting
party from its obligation to make payments on outstanding transactions to the
defaulting party;
(e) Indebtedness in respect of capital leases, and purchase money
obligations for fixed or capital assets within the limitations set forth in
SECTION 8.01(i); PROVIDED, HOWEVER, that the aggregate amount of all such
Indebtedness at any one time outstanding shall not exceed $3,000,000;
(f) unsecured Indebtedness in an aggregate principal amount not to
exceed $500,000 at any time outstanding; PROVIDED that the Borrower shall have
complied with the requirements of SECTION 2.07(f);
(g) Indebtedness of the Borrower and its Subsidiaries under
performance bonds, surety bonds, statutory obligations or appeal bonds or with
respect to workers' compensation claims or other bonds permitted under SECTION
8.01(e) or SECTION 8.01(f);
(h) Indebtedness of any Joint Venture Subsidiary formed after the date
hereof pursuant to Section 8.02(k); PROVIDED, HOWEVER, that (i) such
Indebtedness shall not exceed $15,000,000 in the aggregate during the term
hereof, (ii) the terms of such indebtedness comply with Section 8.11, (iii) such
Indebtedness shall not be secured by Liens on any assets of the Borrower or any
other Subsidiary thereof, and (iv) neither the Borrower nor any other Subsidiary
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thereof shall be directly liable for or provide any other credit support for any
such Indebtedness except for Guarantees expressly permitted pursuant to Section
8.03(i); and
(i) Guarantees by (i) the Borrower or any Guarantor in respect of
Indebtedness otherwise permitted under Section 8.03(a) through Section 8.03(g),
and (ii) the Borrower of Indebtedness permitted pursuant to Section 8.03(h);
PROVIDED that the aggregate amount of all such guarantees permitted by clause
(ii) of this Section 8.03(i) shall not exceed $7,500,000 in the aggregate during
the term hereof.
8.04 FUNDAMENTAL CHANGES. Merge, dissolve, liquidate, consolidate with
or into another Person, or Dispose of (whether in one transaction or in a series
of transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to or in favor of any Person, except that, so long as no
Default exists or would result therefrom:
(a) any Subsidiary may merge with (i) the Borrower, PROVIDED that the
Borrower shall be the continuing or surviving Person, or (ii) any one or more
other Subsidiaries, PROVIDED that (x) when any Guarantor is merging with another
Subsidiary, such Guarantor shall be the continuing or surviving Person and (y)
when any wholly-owned Subsidiary is merging with another Subsidiary, such
wholly-owned Subsidiary shall be the continuing or surviving Person;
(b) any Subsidiary may Dispose of all or substantially all of its
assets (upon voluntary liquidation or otherwise) to the Borrower or to another
Subsidiary; PROVIDED that if the transferor in such a transaction is (x) a
Guarantor, then the transferee must either be the Borrower or a Guarantor which
has satisfied all relevant requirements of SECTION 7.15 and (y) a wholly-owned
Subsidiary, then the transferee must either be the Borrower or a wholly-owned
Subsidiary which has satisfied all relevant requirements of SECTION 7.15;
(c) any Guarantor may merge with any other Person in connection with
any Permitted Acquisition, PROVIDED that the Guarantor shall be the continuing
or surviving Person or the survivor complies with all relevant requirements of
SECTION 7.15 and shall remain a Guarantor; and
(d) the Borrower may, in connection with an initial public offering of
equity securities of the Borrower, convert from a limited liability company to a
C corporation (whether in the form of a merger, transfer of shares or assets,
statutory conversion or otherwise, PROVIDED, that the surviving entity expressly
assumes all the obligations of the Borrower under the Loan Documents)
(hereinafter, a "CONVERSION"); PROVIDED that (i) the Borrower shall have
delivered written notice of any such Conversion to the Administrative Agent at
least thirty (30) days (but no more that forty-five (45) days) prior to such
Conversion, (ii) the Borrower shall make, execute and deliver all such
additional and further acts, things, deeds and instruments as the Administrative
Agent or the Required Lenders (through the Administrative Agent) may reasonably
require to ensure the continued effectiveness of each Loan Document after the
Conversion, as well as the continued effectiveness, priority and perfection
after the Conversion of the Liens granted by the Borrower pursuant to the Loan
Documents in favor of the Administrative Agent, for the ratable benefit of
itself and the other Lenders, and (iii) any adverse tax consequences with
respect to, or otherwise resulting from, the Conversion (including, without
limitation, (i) tax consequences to the Borrower from the Conversion, and (ii)
reasonably
78
anticipated tax consequences resulting from the Borrower's status as a C
corporation rather than a limited liability company following the Conversion)
shall not have a Material Adverse Effect on the Borrower.
8.05 DISPOSITIONS. Make any Disposition or enter into any agreement to
make any Disposition, except:
(a) Dispositions of obsolete or worn out property, whether now owned
or hereafter acquired, in the ordinary course of business;
(b) Dispositions of inventory in the ordinary course of business;
(c) Dispositions of equipment or real property to the extent that (i)
such property is exchanged for credit against the purchase price of similar
replacement property or (ii) the proceeds of such Disposition are reasonably
promptly applied to the purchase price of such replacement property;
(d) Dispositions of property by the Borrower or any Subsidiary to the
Borrower or to a wholly-owned Subsidiary which has satisfied any relevant
requirements of SECTION 7.15; PROVIDED that if the transferor of such property
is a Guarantor, the transferee thereof must either be the Borrower or a
Guarantor;
(e) Dispositions permitted by SECTION 8.04;
(f) non-exclusive licenses of IP Rights by IP Holdco in the ordinary
course of business and substantially consistent with past practice for terms not
exceeding five years;
(g) the lease or license of real or personal property by the Borrower
and its Subsidiaries in the ordinary course of business;
(h) Dispositions by the Borrower and its Subsidiaries consisting of
leases and subleases of real property solely to the extent that such real
property is not necessary for the normal conduct of operations of the Borrower
and its Subsidiaries;
(i) other Dispositions of property by the Borrower and its
Subsidiaries in the ordinary course of business or as otherwise permitted by the
Required Lenders; PROVIDED that the Net Cash Proceeds from each such Disposition
shall be applied to the mandatory prepayment of the Loans in accordance with
SECTION 2.07(e);
PROVIDED, HOWEVER, that any Disposition pursuant to clauses (a) through (i)
shall be for fair market value.
8.06 RESTRICTED PAYMENTS. Declare or make, directly or indirectly, any
Restricted Payment, or incur any obligation (contingent or otherwise) to do so,
except that as long as no Default or Event of Default is continuing or would
result therefrom:
(a) each Subsidiary may make Restricted Payments (including, without
limitation, Required Joint Venture Distributions) to the Borrower and to
wholly-owned Subsidiaries (and, in
79
the case of a Restricted Payment by a non-wholly-owned Subsidiary, to the
Borrower and any Subsidiary and to each other owner of capital stock or other
equity interests of such Subsidiary on a pro rata basis based on their relative
ownership interests);
(b) the Borrower and each Subsidiary may declare and make dividend
payments or other distributions payable solely in the common stock or other
common equity interests of such Person;
(c) the Borrower and each Subsidiary may purchase, redeem or otherwise
acquire shares of its common stock or other common equity interests or warrants
or options to acquire any such shares with the proceeds received from the
substantially concurrent issue of new shares of its common stock or other common
equity interests;
(d) so long as the Borrower remains a limited liability company, the
Borrower may pay cash distributions (such distributions, "TAX DISTRIBUTIONS") on
a quarterly or annual basis, as applicable, in any Fiscal Year to its members in
an aggregate amount in any Fiscal Year equal to the income tax payable by such
members for the immediately preceding Fiscal Year as reasonably determined by
the Borrower to be attributable solely to the income of the Borrower for the
Fiscal Year to which the Tax Distributions relate; PROVIDED, FURTHER, that upon
an initial public offering of equity securities by the Borrower, so long as the
Borrower is in compliance with SECTIONS 8.15 and 8.16, the Borrower may pay an
additional one-time distribution to its members (regardless of the record or
declaration date or dates thereof) in an amount not greater than 50% of the
aggregate Net Cash Proceeds of such public offering provided that the Borrower
complies with the mandatory principal prepayments required under SECTION
2.07(f)(ii); and
(e) Required Shareholder Distributions to the extent not duplicative
of Tax Distributions so long as (i) the Borrower demonstrates PRO FORMA
compliance with Section 8.15(b) both before and after giving effect thereto, and
(ii) no Default or Event of Default has occurred and is continuing or would
result therefrom.
8.07 LIMITATIONS ON EXCHANGE AND ISSUANCE OF CAPITAL STOCK. Issue, sell
or otherwise dispose of any class or series of capital stock that, by its terms
or by the terms of any security into which it is convertible or exchangeable,
is, or upon the happening of an event or passage of time would be, (a)
convertible or exchangeable into Indebtedness or (b) required to be redeemed or
repurchased, including at the option of the holder, in whole or in part, or has,
or upon the happening of an event or passage of time would have, a redemption or
similar payment due.
8.08 CHANGE IN NATURE OF BUSINESS. Engage in any material line of
business substantially different from those lines of business conducted by the
Borrower and its Subsidiaries on the date hereof or any business substantially
related or incidental thereto.
8.09 ACCOUNTING CHANGES; ORGANIZATIONAL DOCUMENTS. (a) Change its
Fiscal Year end, or make any change in its accounting treatment and reporting
practices except as required by GAAP or (b) amend, modify or change its
Organizational Documents or the Reorganization Agreement in any manner adverse
in any respect to the rights or interests of the Lenders.
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8.10 TRANSACTIONS WITH AFFILIATES. Enter into any transaction of any
kind with any Affiliate of the Borrower, whether or not in the ordinary course
of business, other than on fair and reasonable terms substantially as favorable
to the Borrower or such Subsidiary as would be obtainable by the Borrower or
such Subsidiary at the time in a comparable arm's length transaction with a
Person other than an Affiliate, provided that the foregoing restriction shall
not apply to transactions between or among the Borrower and any of its
wholly-owned Subsidiaries or between and among any wholly-owned Subsidiaries.
8.11 BURDENSOME AGREEMENTS. Enter into any Contractual Obligation
(other than this Agreement or any other Loan Document) that (a) limits the
ability (i) of any Subsidiary to make Restricted Payments to the Borrower or any
Guarantor or to otherwise transfer property to the Borrower or any Guarantor,
(ii) of any Subsidiary to Guarantee the Indebtedness of the Borrower or (iii) of
the Borrower or any Subsidiary to create, incur, assume or suffer to exist Liens
on property of such Person; PROVIDED, HOWEVER, that this clause (iii) shall not
prohibit any negative pledge incurred or provided in favor of any holder of
Indebtedness permitted under SECTION 8.03(e) solely to the extent any such
negative pledge relates to the property financed by or the subject of such
Indebtedness; (b) contains covenants more restrictive than the provisions of
Articles VII and VIII; or (c) requires the grant of a Lien to secure an
obligation of such Person if a Lien is granted to secure another obligation of
such Person.
8.12 USE OF PROCEEDS. Use the proceeds of any Credit Extension, whether
directly or indirectly, and whether immediately, incidentally or ultimately, to
purchase or carry margin stock (within the meaning of Regulation U of the FRB)
or to extend credit to others for the purpose of purchasing or carrying margin
stock or to refund indebtedness originally incurred for such purpose.
8.13 IMPAIRMENT OF SECURITY INTERESTS. Take or omit to take any action,
which might or would have the result of materially impairing the security
interests in favor of the Administrative Agent with respect to the Collateral or
grant to any Person (other than the Administrative Agent for the benefit of
itself and the Lenders pursuant to the Security Documents) any interest
whatsoever in the Collateral, except for Liens permitted under SECTION 8.01 and
Dispositions permitted under SECTION 8.05.
8.14 RESTRICTIONS ON CONDUCT OF IP HOLDCO. IP Holdco shall not (a) be
permitted to have any Indebtedness, Liens, material liabilities or material
assets (other than IP Rights), including, without limitation, a restriction on
(i) the conduct of IP Holdco's business to holding title of all the intellectual
property used in the business and operations of the Borrower and its
Subsidiaries, which such limitations and restrictions shall be reflected in the
organizational documents of IP Holdco if requested by the Administrative Agent,
in its sole discretion, and (ii) dispose of, assign, or transfer any of its
intellectual property to a third-party during the term of this Agreement (other
than non-exclusive licenses to third parties in the ordinary course of
business), or (b) amend, modify or change its Organizational Documents in any
manner adverse in any respect to the rights or interests of the Lenders.
8.15 FINANCIAL COVENANTS.
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(a) CONSOLIDATED TANGIBLE NET WORTH. Permit Consolidated Tangible Net
Worth at any time to be less than the sum of (i) $20,500,000 PLUS (ii) an amount
equal to 75% of the Consolidated Net Income earned in each full fiscal quarter
ending after December 31, 2002 (with no deduction for a net loss in any such
fiscal quarter) PLUS (iii) an amount equal to 100% of the aggregate increases in
Shareholders' Equity of the Borrower and its Subsidiaries after the date hereof
by reason of the issuance and sale of capital stock or other equity interests of
the Borrower or any Subsidiary (other than issuances to the Borrower or a
wholly-owned Subsidiary), including upon any conversion of debt securities of
the Borrower into such capital stock or other equity interests; PROVIDED,
HOWEVER, that Consolidated Tangible Net Worth shall be reduced for any Required
Shareholder Distributions and other dividends.
(b) CONSOLIDATED FIXED CHARGE COVERAGE RATIO. At any time, permit the
Consolidated Fixed Charge Coverage Ratio to be less than 1.10 to 1.00.
(c) CONSOLIDATED LEVERAGE RATIO. As of any Fiscal Quarter end during
any period set forth below, permit the Consolidated Leverage Ratio for the four
(4) consecutive Fiscal Quarter period ending on such date to be greater than the
corresponding ratio set forth below:
Maximum
Consolidated
Four Fiscal Quarters Ending Leverage Ratio
--------------------------- --------------
Closing Date through June 29, 2004 3.50 to 1.00
June 30, 2004 through June 28, 2005 3.25 to 1.00
June 29, 2005 through June 30, 2006 3.00 to 1.00
8.16 CAPITAL EXPENDITURES. Make or become legally obligated to make,
during any period set forth below, any Capital Expenditures in respect of the
purchase or other acquisition of any fixed or Capital Assets (excluding normal
replacements and maintenance which are properly charged to current operations),
except for Capital Expenditures in the ordinary course of business not exceeding
in the aggregate for the Borrower and it Subsidiaries the amounts set forth
below opposite such period:
Maximum
Amount of
Capital
Fiscal Year Time Periods Expenditures
------------------------ ------------
January 1, 2003 through December 30, 2003 $45,000,000
December 31, 2003 through December 28, 2004 $55,000,000
December 29, 2004 through December 27, 2005 $60,000,000
December 28, 2005 through December 26, 2006 $65,000,000
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8.17 RESTAURANT EXPENDITURE LIMITATIONS. Make any Investments, loans,
advances, purchases, distributions, contributions or any transfers related
thereto of more than $3,500,000 in the aggregate for any and all costs, expenses
and fees associated with the development, acquisition, construction, training,
organizing, opening and any other costs related thereto of any one (1)
particular Restaurant.
8.18 CONSOLIDATED NEW UNIT PRE-OPENING COSTS LIMITATIONS. As of any
Fiscal Quarter end, permit the average amount of the Consolidated New Unit
Pre-Opening Costs for the four (4) consecutive Fiscal Quarters ending on such
date to exceed $250,000 per New Unit.
ARTICLE IX.
EVENTS OF DEFAULT AND REMEDIES
9.01 EVENTS OF DEFAULT. Any of the following shall constitute an Event
of Default:
(a) NON-PAYMENT. The Borrower or any other Loan Party fails to pay (i)
when and as required to be paid herein, any amount of principal of any Loan or
any L/C Obligation, or (ii) within three (3) Business Days after the same
becomes due, any interest on any Loan or on any L/C Obligation, or any
Commitment Fee or other fee due hereunder, or (iii) within five (5) days after
the same becomes due, any other amount payable hereunder or under any other Loan
Document; or
(b) SPECIFIC COVENANTS. The Borrower fails to perform or observe any
term, covenant or agreement contained in any of SECTION 7.01, 7.02, 7.03, 7.05,
7.10, 7.11, 7.12, 7.13, 7.15 or 7.16 or ARTICLE VIII; or
(c) OTHER DEFAULTS. Any Loan Party fails to perform or observe any
other covenant or agreement (not specified in subsection (a) or (b) above)
contained in any Loan Document on its part to be performed or observed and such
failure continues for thirty (30) days; or
(d) REPRESENTATIONS AND WARRANTIES. Any representation, warranty,
certification or statement of fact made or deemed made by or on behalf of the
Borrower or any other Loan Party herein, in any other Loan Document, or in any
document delivered in connection herewith or therewith shall be incorrect or
misleading in any material respect when made or deemed made; or
(e) CROSS-DEFAULT.
(i) The Borrower or any Subsidiary (A) fails to make any
payment when due (whether by scheduled maturity, required prepayment,
acceleration, demand, or otherwise) in respect of any Indebtedness or Guarantee
(other than Indebtedness hereunder and Indebtedness under Swap Contracts) having
an aggregate principal amount (including undrawn committed or available amounts
and including amounts owing to all creditors under any combined or syndicated
credit arrangement) of more than the Threshold Amount, or (B) fails to observe
or perform any other agreement or condition relating to any such Indebtedness or
Guarantee or contained in any instrument or agreement evidencing, securing or
relating thereto, or any other event occurs, the effect of which default or
other event is to cause, or to permit the holder or
83
holders of such Indebtedness or the beneficiary or beneficiaries of such
Guarantee (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, with the giving of notice if required,
such Indebtedness to be demanded or to become due or to be repurchased, prepaid,
defeased or redeemed (automatically or otherwise), or an offer to repurchase,
prepay, defease or redeem such Indebtedness to be made, prior to its stated
maturity, or such Guarantee to become payable or cash collateral in respect
thereof to be demanded; or
(ii) there occurs under any Swap Contract an Early Termination
Date (as defined in such Swap Contract) resulting from (A) any event of default
under such Swap Contract as to which the Borrower or any Subsidiary is the
Defaulting Party (as defined in such Swap Contract) or (B) any Termination Event
(as so defined) under such Swap Contract as to which the Borrower or any
Subsidiary is an Affected Party (as so defined) and, in either event, the Swap
Termination Value owed by the Borrower or such Subsidiary as a result thereof is
greater than the Threshold Amount; or
(iii) The Borrower or any of its Subsidiaries shall default in
the payment when due, or in the performance or observance, of any material
obligation or condition of any Material Contract unless, but only as long as,
the existence of any such default is being contested by the Borrower or any such
Subsidiary in good faith by appropriate proceedings and adequate reserves in
respect thereof have been established on the books of the Borrower or such
Subsidiary to the extent required by GAAP; or
(f) INSOLVENCY PROCEEDINGS, ETC. Any Loan Party or any of its
Subsidiaries institutes or consents to the institution of any proceeding under
any Debtor Relief Law, or makes an assignment for the benefit of creditors; or
applies for or consents to the appointment of any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer for it or for all or
any material part of its property; or any receiver, trustee, custodian,
conservator, liquidator, rehabilitator or similar officer is appointed without
the application or consent of such Person and the appointment continues
undischarged or unstayed for 60 calendar days; or any proceeding under any
Debtor Relief Law relating to any such Person or to all or any material part of
its property is instituted without the consent of such Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(g) INABILITY TO PAY DEBTS; ATTACHMENT. (i) The Borrower or any
Subsidiary becomes unable or admits in writing its inability or fails generally
to pay its debts as they become due, or (ii) any writ or warrant of attachment
or execution or similar process is issued or levied against all or any material
part of the property of any such Person and is not released, vacated or fully
bonded within 30 days after its issue or levy; or
(h) JUDGMENTS. There is entered against the Borrower or any Subsidiary
(i) a final judgment or order for the payment of money in an aggregate amount
exceeding the Threshold Amount (to the extent not covered by independent
third-party insurance as to which the insurer has not disputed coverage), or
(ii) any one or more non-monetary final judgments that have, or could reasonably
be expected to have, individually or in the aggregate, a Material Adverse Effect
and, in either case, (A) enforcement proceedings are commenced by any creditor
upon such judgment or order, or (B) there is a period of 30 consecutive days
during which a stay of enforcement of such judgment, by reason of a pending
appeal or otherwise, is not in effect; or
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(i) ENVIRONMENTAL. The Borrower or any of its Subsidiaries shall be
subject to Environmental Liability and such liability would be reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect.
(j) ERISA. (i) An ERISA Event occurs with respect to a Pension Plan or
Multiemployer Plan which has resulted or could reasonably be expected to result
in liability of the Borrower under Title IV of ERISA to the Pension Plan,
Multiemployer Plan or the PBGC in an aggregate amount in excess of the Threshold
Amount, or (ii) the Borrower or any ERISA Affiliate fails to pay when due, after
the expiration of any applicable grace period, any installment payment with
respect to its withdrawal liability under Section 4201 of ERISA under a
Multiemployer Plan in an aggregate amount in excess of the Threshold Amount; or
(k) INVALIDITY OF LOAN DOCUMENTS. Any Loan Document, at any time after
its execution and delivery and for any reason other than as expressly permitted
hereunder or satisfaction in full of all the Obligations, ceases to be in full
force and effect; or any Loan Party or any other Person contests in any manner
the validity or enforceability of any Loan Document; or any Loan Party denies
that it has any or further liability or obligation under any Loan Document, or
purports to revoke, terminate or rescind any Loan Document; or
(l) CHANGE OF CONTROL. There occurs any Change of Control with respect
to the Borrower.
9.02 REMEDIES UPON EVENT OF DEFAULT. If any Event of Default occurs and
is continuing, the Administrative Agent shall, at the request of, or may, with
the consent of, the Required Lenders, take any or all of the following actions:
(a) declare the commitment of each Lender to make Loans and any
obligation of the L/C Issuer to make L/C Credit Extensions to be terminated,
whereupon such commitments and obligation shall be terminated;
(b) declare the unpaid principal amount of all outstanding Loans, all
interest accrued and unpaid thereon, and all other amounts owing or payable
hereunder or under any other Loan Document to be immediately due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby expressly waived by the Borrower;
(c) require that the Borrower Cash Collateralize the L/C Obligations
(in an amount equal to the then Outstanding Amount thereof); and
(d) exercise on behalf of itself and the Lenders all rights and
remedies available to it and the Lenders under the Loan Documents or applicable
Law;
PROVIDED, HOWEVER, that upon the occurrence of an actual or deemed entry of an
order for relief with respect to the Borrower under the Bankruptcy Code of the
United States, the obligation of each Lender to make Loans and any obligation of
the L/C Issuer to make L/C Credit Extensions shall automatically terminate, the
unpaid principal amount of all outstanding Loans and all interest and other
amounts as aforesaid shall automatically become due and payable, and the
obligation of the Borrower to Cash Collateralize the L/C Obligations as
aforesaid shall
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automatically become effective, in each case without further act of the
Administrative Agent or any Lender.
9.03 APPLICATION OF FUNDS. After the exercise of remedies provided for
in SECTION 9.02 (or after the Loans have automatically become immediately due
and payable and the L/C Obligations have automatically been required to be Cash
Collateralized as set forth in the proviso to SECTION 9.02), any amounts
received on account of the Obligations shall be applied by the Administrative
Agent in the following order:
FIRST, to payment of that portion of the Obligations constituting fees,
indemnities, expenses and other amounts (including Attorney Costs and amounts
payable under ARTICLE IV) payable to the Administrative Agent in its capacity as
such;
SECOND, to payment of that portion of the Obligations constituting fees,
indemnities and other amounts (other than principal and interest) payable to the
Lenders (including Attorney Costs and amounts payable under ARTICLE IV), ratably
among them in proportion to the amounts described in this clause SECOND payable
to them;
THIRD, to payment of that portion of the Obligations constituting accrued
and unpaid interest on the Loans and L/C Borrowings, ratably among the Lenders
in proportion to the respective amounts described in this clause THIRD payable
to them;
FOURTH, to payment of that portion of the Obligations constituting unpaid
principal of the Loans and L/C Borrowings, ratably among the Lenders in
proportion to the respective amounts described in this clause FOURTH held by
them;
FIFTH, to the Administrative Agent for the account of the L/C Issuer, to
Cash Collateralize that portion of L/C Obligations comprised of the aggregate
undrawn amount of Letters of Credit; and
LAST, the balance, if any, after all of the Obligations have been
indefeasibly paid in full, to the Borrower or as otherwise required by Law.
Subject to SECTION 2.05(c), amounts used to Cash Collateralize the aggregate
undrawn amount of Letters of Credit pursuant to clause FIFTH above shall be
applied to satisfy drawings under such Letters of Credit as they occur. If any
amount remains on deposit as Cash Collateral after all Letters of Credit have
either been fully drawn or expired, such remaining amount shall be applied to
the other Obligations, if any, in the order set forth above.
ARTICLE X.
ADMINISTRATIVE AGENT
10.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably appoints, designates and authorizes
the Administrative Agent to take such action on its behalf under the provisions
of this Agreement and each other Loan Document and to exercise such powers and
perform such duties as are
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expressly delegated to it by the terms of this Agreement or any other Loan
Document, together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere herein or in
any other Loan Document, the Administrative Agent shall not have any duties or
responsibilities, except those expressly set forth herein, nor shall the
Administrative Agent have or be deemed to have any fiduciary relationship with
any Lender or participant, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against the
Administrative Agent. Without limiting the generality of the foregoing sentence,
the use of the term "agent" herein and in the other Loan Documents with
reference to the Administrative Agent is not intended to connote any fiduciary
or other implied (or express) obligations arising under agency doctrine of any
applicable Law. Instead, such term is used merely as a matter of market custom,
and is intended to create or reflect only an administrative relationship between
independent contracting parties.
(b) The L/C Issuer shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith, and
the L/C Issuer shall have all of the benefits and immunities (i) provided to the
Administrative Agent in this ARTICLE X with respect to any acts taken or
omissions suffered by the L/C Issuer in connection with Letters of Credit issued
by it or proposed to be issued by it and the applications and agreements for
letters of credit pertaining to such Letters of Credit as fully as if the term
"Administrative Agent" as used in this ARTICLE X and in the definition of
"Agent-Related Person" included the L/C Issuer with respect to such acts or
omissions, and (ii) as additionally provided herein with respect to the L/C
Issuer.
10.02 DELEGATION OF DUTIES. The Administrative Agent may execute any of
its duties under this Agreement or any other Loan Document by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel and
other consultants or experts concerning all matters pertaining to such duties.
The Administrative Agent shall not be responsible for the negligence or
misconduct of any agent or attorney-in-fact that it selects in the absence of
gross negligence or willful misconduct.
10.03 LIABILITY OF ADMINISTRATIVE AGENT. Neither the Syndication Agent
nor any Agent-Related Person shall (a) be liable for any action taken or omitted
to be taken by any of them under or in connection with this Agreement or any
other Loan Document or the transactions contemplated hereby (except for its own
gross negligence or willful misconduct in connection with its duties expressly
set forth herein), or (b) be responsible in any manner to any Lender or
participant for any recital, statement, representation or warranty made by any
Loan Party or any officer thereof, contained herein or in any other Loan
Document, or in any certificate, report, statement or other document referred to
or provided for in, or received by the Administrative Agent under or in
connection with, this Agreement or any other Loan Document, or the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document, or for any failure of any Loan Party or any other party
to any Loan Document to perform its obligations hereunder or thereunder. Neither
the Syndication Agent nor any Agent-Related Person shall be under any obligation
to any Lender or participant to ascertain or to inquire as to the observance or
performance of any of the agreements contained in, or conditions of, this
Agreement or any other Loan Document, or to inspect the properties, books or
records of any Loan Party or any Affiliate thereof.
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10.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) The Administrative Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, communication, signature,
resolution, representation, notice, consent, certificate, affidavit, letter,
telegram, facsimile, telex or telephone message, electronic mail message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to any Loan
Party), independent accountants and other experts selected by the Administrative
Agent. The Administrative Agent shall be fully justified in failing or refusing
to take any action under any Loan Document unless it shall first receive such
advice or concurrence of the Required Lenders as it deems appropriate and, if it
so requests, it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. The Administrative Agent shall
in all cases be fully protected in acting, or in refraining from acting, under
this Agreement or any other Loan Document in accordance with a request or
consent of the Required Lenders (or such greater number of Lenders as may be
expressly required hereby in any instance) and such request and any action taken
or failure to act pursuant thereto shall be binding upon all the Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 5.01, each Lender that has signed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter required thereunder to be consented to or approved by
or acceptable or satisfactory to a Lender unless the Administrative Agent shall
have received notice from such Lender prior to the proposed Closing Date
specifying its objection thereto.
10.05 NOTICE OF DEFAULT. The Administrative Agent shall not be deemed to
have knowledge or notice of the occurrence of any Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to the Administrative Agent for the account of the Lenders, unless the
Administrative Agent shall have received written notice from a Lender or the
Borrower referring to this Agreement, describing such Default and stating that
such notice is a "notice of default." The Administrative Agent will notify the
Lenders of its receipt of any such notice. The Administrative Agent shall take
such action with respect to such Default as may be directed by the Required
Lenders in accordance with ARTICLE IX; PROVIDED, HOWEVER, that unless and until
the Administrative Agent has received any such direction, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable or
in the best interest of the Lenders.
10.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT. Each Lender acknowledges that neither the Syndication Agent nor any
Agent-Related Person has made any representation or warranty to it, and that no
act by the Syndication Agent or the Administrative Agent hereafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of any Loan Party or any Affiliate thereof, shall be deemed to
constitute any representation or warranty by the Syndication Agent or any
Agent-Related Person to any Lender as to any matter, including whether the
Syndication Agent or any Agent-Related Persons have disclosed material
information in their possession. Each Lender represents to the
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Syndication Agent and the Administrative Agent that it has, independently and
without reliance upon the Syndication Agent or any Agent-Related Person and
based on such documents and information as it has deemed appropriate, made its
own appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of the Loan Parties
and their respective Subsidiaries, and all applicable bank or other regulatory
Laws relating to the transactions contemplated hereby, and made its own decision
to enter into this Agreement and to extend credit to the Borrower hereunder.
Each Lender also represents that it will, independently and without reliance
upon the Syndication Agent or any Agent-Related Person and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit analysis, appraisals and decisions in taking or not taking
action under this Agreement and the other Loan Documents, and to make such
investigations as it deems necessary to inform itself as to the business,
prospects, operations, property, financial and other condition and
creditworthiness of the Borrower and the other Loan Parties. Except for notices,
reports and other documents expressly required to be furnished to the Lenders by
the Syndication Agent and the Administrative Agent herein, the Syndication Agent
and the Administrative Agent shall not have any duty or responsibility to
provide any Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of any of the Loan Parties or any of their respective
Affiliates which may come into the possession of the Syndication Agent or any
Agent-Related Person.
10.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT. Whether or not the
transactions contemplated hereby are consummated, the Lenders shall indemnify
upon demand the Syndication Agent and each Agent-Related Person (to the extent
not reimbursed by or on behalf of any Loan Party and without limiting the
obligation of any Loan Party to do so), pro rata, and hold harmless the
Syndication Agent and each Agent-Related Person for, from and against any and
all Indemnified Liabilities incurred by it; PROVIDED, HOWEVER, that no Lender
shall be liable for the payment to the Syndication Agent or any Agent-Related
Person of any portion of such Indemnified Liabilities to the extent determined
in a final, nonappealable judgment by a court of competent jurisdiction to have
resulted from the Syndication Agent's or such Agent-Related Person's own gross
negligence or willful misconduct; PROVIDED, HOWEVER, that no action taken in
accordance with the directions of the Required Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse the Syndication
Agent or the Administrative Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including Attorney Costs) incurred by the Syndication
Agent or the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement, any other Loan
Document, or any document contemplated by or referred to herein, to the extent
that the Syndication Agent or the Administrative Agent is not reimbursed for
such expenses by or on behalf of the Borrower. The undertaking in this Section
shall survive termination of the Aggregate Commitments, the payment of all other
Obligations and the resignation of the Administrative Agent.
10.08 ADMINISTRATIVE AGENT IN ITS INDIVIDUAL CAPACITY. Bank of America
and its Affiliates may make loans to, issue letters of credit for the account
of, accept deposits from, acquire equity interests in and generally engage in
any kind of banking, trust, financial advisory, underwriting or other business
with each of the Loan Parties and their respective Affiliates as
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though Bank of America were not the Administrative Agent or the L/C Issuer
hereunder and without notice to or consent of the Lenders. The Lenders
acknowledge that, pursuant to such activities, Bank of America or its Affiliates
may receive information regarding any Loan Party or its Affiliates (including
information that may be subject to confidentiality obligations in favor of such
Loan Party or such Affiliate) and acknowledge that the Administrative Agent
shall be under no obligation to provide such information to them. With respect
to its Loans, Bank of America shall have the same rights and powers under this
Agreement as any other Lender and may exercise such rights and powers as though
it were not the Administrative Agent or the L/C Issuer, and the terms "Lender"
and "Lenders" include Bank of America in its individual capacity.
10.09 SUCCESSOR ADMINISTRATIVE AGENT. The Administrative Agent may
resign as Administrative Agent upon 30 days' notice to the Lenders; provided
that any such resignation by Bank of America shall also constitute its
resignation as L/C Issuer and Swing Line Lender. If the Administrative Agent
resigns under this Agreement, the Required Lenders shall appoint from among the
Lenders a successor administrative agent for the Lenders, which successor
administrative agent shall be consented to by the Borrower at all times other
than during the existence of an Event of Default (which consent of the Borrower
shall not be unreasonably withheld or delayed). If no successor administrative
agent is appointed prior to the effective date of the resignation of the
Administrative Agent, the Administrative Agent may appoint, after consulting
with the Lenders and the Borrower, a successor administrative agent from among
the Lenders. Upon the acceptance of its appointment as successor administrative
agent hereunder, the Person acting as such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent, L/C Issuer and Swing Line Lender and the respective terms "Administrative
Agent," "L/C Issuer" and "Swing Line Lender" shall mean such successor
administrative agent, Letter of Credit issuer and Swing Line Lender, and the
retiring Administrative Agent's appointment, powers and duties as Administrative
Agent shall be terminated and the retiring L/C Issuer's and Swing Line Lender's
rights, powers and duties as such shall be terminated, without any other or
further act or deed on the part of such retiring L/C Issuer or Swing Line Lender
or any other Lender, other than the obligation of the successor L/C Issuer to
issue letters of credit in substitution for the Letters of Credit, if any,
outstanding at the time of such succession or to make other arrangements
satisfactory to the retiring L/C Issuer to effectively assume the obligations of
the retiring L/C Issuer with respect to such Letters of Credit. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this ARTICLE X and SECTIONS 11.04 and 11.05 shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement. If no successor administrative agent
has accepted appointment as Administrative Agent by the date which is 30 days
following a retiring Administrative Agent's notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless thereupon become effective
and the Lenders shall perform all of the duties of the Administrative Agent
hereunder until such time, if any, as the Required Lenders appoint a successor
agent as provided for above.
10.10 ADMINISTRATIVE AGENT MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to any Loan Party, the Administrative Agent (irrespective of
whether the principal of any Loan or L/C Obligation shall then be due and
payable as herein expressed or by declaration or otherwise and irrespective of
whether the
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Administrative Agent shall have made any demand on the Borrower) shall be
entitled and empowered, by intervention in such proceeding or otherwise
(a) to file and prove a claim for the whole amount of the principal
and interest owing and unpaid in respect of the Loans, L/C Obligations and all
other Obligations that are owing and unpaid and to file such other documents as
may be necessary or advisable in order to have the claims of the Lenders and the
Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent
and their respective agents and counsel and all other amounts due the Lenders
and the Administrative Agent under SECTIONS 2.05(i) and (j), 3.02 and 11.04)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender to make such payments to the Administrative Agent and, in the event
that the Administrative Agent shall consent to the making of such payments
directly to the Lenders, to pay to the Administrative Agent any amount due for
the reasonable compensation, expenses, disbursements and advances of the
Administrative Agent and its agents and counsel, and any other amounts due the
Administrative Agent under SECTIONS 3.02 and 11.04.
Nothing contained herein shall be deemed to authorize the Administrative
Agent to authorize or consent to or accept or adopt on behalf of any Lender any
plan of reorganization, arrangement, adjustment or composition affecting the
Obligations or the rights of any Lender or to authorize the Administrative Agent
to vote in respect of the claim of any Lender in any such proceeding.
10.11 COLLATERAL AND GUARANTY MATTERS. The Lenders irrevocably authorize
the Administrative Agent, at its option and in its discretion,
(a) to release any Lien on any property granted to or held by the
Administrative Agent under any Loan Document (i) upon termination of the
Aggregate Commitments and payment in full of all Obligations (other than
contingent indemnification obligations) and the expiration or termination of all
Letters of Credit, (ii) that is sold or to be sold as part of or in connection
with any sale permitted hereunder or under any other Loan Document, (iii)
subject to SECTION 11.01, if approved, authorized or ratified in writing by the
Required Lenders, or (iv) that is subject to a capital lease or purchase money
obligation, in each case permitted to be incurred pursuant to SECTION 8.03(e),
within ten (10) days following receipt of written notice from the Borrower
requesting such release and identifying with reasonable specificity the assets
subject to such release;
(b) to subordinate any Lien on any property granted to or held by the
Administrative Agent under any Loan Document to the holder of any Lien on such
property that is permitted by SECTION 8.01(i); and
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(c) to release any Guarantor from its obligations under the Guaranty
Agreements if such Person ceases to be a Subsidiary as a result of a transaction
permitted hereunder.
Upon request by the Administrative Agent at any time, the Required Lenders
will confirm in writing the Administrative Agent's authority to release or
subordinate its interest in particular types or items of property, or to release
any Guarantor from its obligations under the Guaranty Agreements pursuant to
this SECTION 10.11.
10.12 OTHER AGENTS; ARRANGERS AND MANAGERS. None of the Lenders or other
Persons identified on the facing page or signature pages of this Agreement as a
"syndication agent," "documentation agent," "co-agent," "book manager," "lead
manager," "arranger," "lead arranger", or "co-lead arranger" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than, in the case of such Lenders, those applicable to all Lenders as
such. Without limiting the foregoing, none of the Lenders or other Persons so
identified shall have or be deemed to have any fiduciary relationship with any
Lender. Each Lender acknowledges that it has not relied, and will not rely, on
any of the Lenders or other Persons so identified in deciding to enter into this
Agreement or in taking or not taking action hereunder.
ARTICLE XI.
MISCELLANEOUS
11.01 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or any other Loan Document, and no consent to any departure by the
Borrower or any other Loan Party therefrom, shall be effective unless in writing
signed by the Required Lenders and the Borrower or the applicable Loan Party, as
the case may be, and acknowledged by the Administrative Agent, and each such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; PROVIDED, HOWEVER, that no such amendment,
waiver or consent shall:
(a) waive any condition set forth in SECTION 5.01(a) without the
written consent of each Lender;
(b) extend or increase the Commitment of any Lender (or reinstate any
Commitment terminated pursuant to SECTION 9.02) without the written consent of
such Lender;
(c) postpone any date fixed by this Agreement or any other Loan
Document for any payment (excluding mandatory prepayments) of principal,
interest, fees or other amounts due to the Lenders (or any of them) hereunder or
under any other Loan Document without the written consent of each Lender
directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein
on, any Loan or L/C Borrowing, or (subject to clause (iv) of the second proviso
to this SECTION 11.01) any fees or other amounts payable hereunder or under any
other Loan Document without the written consent of each Lender directly affected
thereby; PROVIDED, HOWEVER, that only the consent of the Required Lenders shall
be necessary (i) to amend the definition of "Default Rate" or to waive any
obligation of the Borrower to pay interest at the Default Rate or (ii) to amend
any financial
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covenant hereunder (or any defined term used therein) even if the effect of such
amendment would be to reduce the rate of interest on any Loan or L/C Borrowing
or to reduce any fee payable hereunder;
(e) change SECTION 3.06 or SECTION 9.03 in a manner that would alter
the pro rata sharing of payments required thereby without the written consent of
each Lender;
(f) change any provision of this Section or the definition of
"Required Lenders" or any other provision hereof specifying the number or
percentage of Lenders required to amend, waive or otherwise modify any rights
hereunder or make any determination or grant any consent hereunder, without the
written consent of each Lender; or
(g) release any Guarantor from the Guaranty Agreements or all or a
material portion of the Collateral or release any Security Document (other than
asset sales permitted pursuant to SECTION 8.05, in connection with the
incurrence of any Indebtedness permitted pursuant to Section 8.03(e), and as
otherwise specifically permitted or contemplated in this Agreement or the
applicable Security Document) without the written consent of each Lender;
and, PROVIDED FURTHER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by the L/C Issuer in addition to the Lenders required above,
affect the rights or duties of the L/C Issuer under this Agreement or any Letter
of Credit Application relating to any Letter of Credit issued or to be issued by
it; (ii) no amendment, waiver or consent shall, unless in writing and signed by
the Swing Line Lender in addition to the Lenders required above, affect the
rights or duties of the Swing Line Lender under this Agreement; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Administrative Agent in addition to the Lenders required above, affect the
rights or duties of the Administrative Agent under this Agreement or any other
Loan Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
11.02 NOTICES AND OTHER COMMUNICATIONS; FACSIMILE COPIES.
(a) GENERAL. Unless otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
by facsimile transmission). All such written notices shall be mailed, faxed or
delivered to the applicable address, facsimile number or (subject to subsection
(c) below) electronic mail address, and all notices and other communications
expressly permitted hereunder to be given by telephone shall be made to the
applicable telephone number, as follows:
(i) if to the Borrower, the Administrative Agent, the L/C
Issuer or the Swing Line Lender, to the address, facsimile number, electronic
mail address or telephone number specified for such Person on SCHEDULE 11.02 or
to such other address, facsimile number, electronic mail address or telephone
number as shall be designated by such party in a notice to the other parties;
and
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(ii) if to any other Lender, to the address, facsimile number,
electronic mail address or telephone number specified in its Administrative
Questionnaire or to such other address, facsimile number, electronic mail
address or telephone number as shall be designated by such party in a notice to
the Borrower, the Administrative Agent, the L/C Issuer and the Swing Line
Lender.
All such notices and other communications shall be deemed to be given or made
upon the earlier to occur of (i) actual receipt by the relevant party hereto and
(ii) (A) if delivered by hand or by courier, when signed for by or on behalf of
the relevant party hereto; (B) if delivered by mail, four Business Days after
deposit in the mails, postage prepaid; (C) if delivered by facsimile, when sent
and receipt has been confirmed by telephone; and (D) if delivered by electronic
mail (which form of delivery is subject to the provisions of subsection (c)
below), when delivered; PROVIDED, HOWEVER, that notices and other communications
to the Administrative Agent, the L/C Issuer and the Swing Line Lender pursuant
to ARTICLE II shall not be effective until actually received by such Person. In
no event shall a voicemail message be effective as a notice, communication or
confirmation hereunder.
(b) EFFECTIVENESS OF FACSIMILE DOCUMENTS AND SIGNATURES. Loan
Documents may be transmitted and/or signed by facsimile. The effectiveness of
any such documents and signatures shall, subject to applicable Law, have the
same force and effect as manually-signed originals and shall be binding on all
Loan Parties, the Administrative Agent and the Lenders. The Administrative Agent
may also require that any such documents and signatures be confirmed by a
manually-signed original thereof; PROVIDED, HOWEVER, that the failure to request
or deliver the same shall not limit the effectiveness of any facsimile document
or signature.
(c) LIMITED USE OF ELECTRONIC MAIL. Electronic mail and Internet and
intranet websites may be used only to distribute routine communications, such as
financial statements and other information as provided in SECTION 7.02, and to
distribute Loan Documents for execution by the parties thereto, and may not be
used for any other purpose.
(d) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS. The Administrative
Agent and the Lenders shall be entitled to rely and act upon any notices
(including telephonic Loan Notices and Swing Line Loan Notices) purportedly
given by or on behalf of the Borrower even if (i) such notices were not made in
a manner specified herein, were incomplete or were not preceded or followed by
any other form of notice specified herein, or (ii) the terms thereof, as
understood by the recipient, varied from any confirmation thereof. The Borrower
shall indemnify each Agent-Related Person and each Lender for, from and against
all losses, costs, expenses and liabilities resulting from the reliance by such
Person on each notice purportedly given by or on behalf of the Borrower. All
telephonic notices to and other communications with the Administrative Agent may
be recorded by the Administrative Agent, and each of the parties hereto hereby
consents to such recording.
11.03 NO WAIVER; CUMULATIVE REMEDIES. No failure by any Lender or the
Administrative Agent to exercise, and no delay by any such Person in exercising,
any right, remedy, power or privilege hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right, remedy, power or
privilege hereunder preclude any other or further exercise thereof or the
exercise of any other right, remedy, power or privilege. The rights,
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remedies, powers and privileges herein provided are cumulative and not exclusive
of any rights, remedies, powers and privileges provided by law.
11.04 ATTORNEY COSTS, EXPENSES AND TAXES. The Borrower agrees (a) to pay
or reimburse the Administrative Agent for all costs and expenses incurred in
connection with the development, preparation, negotiation, execution, filing and
recording of this Agreement and the other Loan Documents and any amendment,
waiver, consent or other modification of the provisions hereof and thereof
(whether or not the transactions contemplated hereby or thereby are
consummated), and the consummation and administration of the transactions
contemplated hereby and thereby, including all Attorney Costs, and (b) to pay or
reimburse the Administrative Agent and each Lender for all costs and expenses
incurred in connection with the enforcement, attempted enforcement, or
preservation of any rights or remedies under this Agreement or the other Loan
Documents (including all such costs and expenses incurred during any "workout"
or restructuring in respect of the Obligations and during any legal proceeding,
including any proceeding under any Debtor Relief Law), including all Attorney
Costs. The foregoing costs and expenses shall include all search, filing,
recording, title insurance and appraisal charges and fees and taxes related
thereto, and other out-of-pocket expenses incurred by the Administrative Agent
and the cost of independent public accountants retained by the Administrative
Agent or any Lender and during any "workout" or restructuring in respect of the
Obligations and during any legal proceeding, including any proceeding under any
Debtor Relief Law, other outside experts retained by the Administrative Agent or
any Lender. All amounts due under this SECTION 11.04 shall be payable within ten
Business Days after demand therefor. The agreements in this Section shall
survive the termination of the Aggregate Commitments and repayment of all other
Obligations.
11.05 INDEMNIFICATION BY THE BORROWER. Whether or not the transactions
contemplated hereby are consummated, the Borrower shall indemnify and hold
harmless each Agent-Related Person, each Co-Lead Arranger, each Lender and their
respective Affiliates, directors, officers, employees, counsel, agents and
attorneys-in-fact (collectively the "INDEMNITEES") for, from and against any and
all liabilities, obligations, losses, damages, penalties, claims, demands,
actions, judgments, suits, costs, expenses and disbursements (including Attorney
Costs) of any kind or nature whatsoever which may at any time be imposed on,
incurred by or asserted against any such Indemnitee in any way relating to or
arising out of or in connection with (a) the execution, delivery, enforcement,
performance or administration of any Loan Document or any other agreement,
letter or instrument delivered in connection with the transactions contemplated
thereby or the consummation of the transactions contemplated thereby, (b) any
Commitment, Loan or Letter of Credit or the use or proposed use of the proceeds
therefrom (including any refusal by the L/C Issuer to honor a demand for payment
under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), or (c)
any actual or alleged presence or release of Hazardous Materials on or from any
property currently or formerly owned or operated by the Borrower, any Subsidiary
or any other Loan Party, or any Environmental Liability related in any way to
the Borrower, any Subsidiary or any other Loan Party, or (d) any actual or
prospective claim, litigation, investigation or proceeding relating to any of
the foregoing, whether based on contract, tort or any other theory (including
any investigation of, preparation for, or defense of any pending or threatened
claim, investigation, litigation or proceeding) and regardless of whether any
Indemnitee is a party thereto (all the foregoing, collectively, the
95
"INDEMNIFIED LIABILITIES"); PROVIDED that such indemnity shall not, as to any
Indemnitee, be available to the extent that such liabilities, obligations,
losses, damages, penalties, claims, demands, actions, judgments, suits, costs,
expenses or disbursements are determined by a court of competent jurisdiction by
final and nonappealable judgment to have resulted from the bad faith, gross
negligence or willful misconduct of such Indemnitee. No Indemnitee shall be
liable for any damages arising from the use by others of any information or
other materials obtained through IntraLinks or other similar information
transmission systems in connection with this Agreement, nor shall any Indemnitee
have any liability for any indirect or consequential damages relating to this
Agreement or any other Loan Document or arising out of its activities in
connection herewith or therewith (whether before or after the Closing Date). All
amounts due under this SECTION 11.05 shall be payable within ten Business Days
after demand therefor. The agreements in this Section shall survive the
resignation of the Administrative Agent, the replacement of any Lender, the
termination of the Aggregate Commitments and the repayment, satisfaction or
discharge of all the other Obligations.
11.06 PAYMENTS SET ASIDE. To the extent that any payment by or on behalf
of the Borrower is made to the Administrative Agent or any Lender, or the
Administrative Agent or any Lender exercises its right of set-off, and such
payment or the proceeds of such set-off or any part thereof is subsequently
invalidated, declared to be fraudulent or preferential, set aside or required
(including pursuant to any settlement entered into by the Administrative Agent
or such Lender in its discretion) to be repaid to a trustee, receiver or any
other party, in connection with any proceeding under any Debtor Relief Law or
otherwise, then (a) to the extent of such recovery, the obligation or part
thereof originally intended to be satisfied shall be revived and continued in
full force and effect as if such payment had not been made or such set-off had
not occurred, and (b) each Lender severally agrees to pay to the Administrative
Agent upon demand its applicable share of any amount so recovered from or repaid
by the Administrative Agent, plus interest thereon from the date of such demand
to the date such payment is made at a rate per annum equal to the Federal Funds
Rate from time to time in effect.
11.07 SUCCESSORS AND ASSIGNS.
(a) The provisions of this Agreement shall be binding upon and inure
to the benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender and no Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance with the
provisions of subsection (b) of this Section, (ii) by way of participation in
accordance with the provisions of subsection (d) of this Section, or (iii) by
way of pledge or assignment of a security interest subject to the restrictions
of subsections (f) or (i) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby,
Participants to the extent provided in subsection (d) of this Section and, to
the extent expressly contemplated hereby, the Indemnitees) any legal or
equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Lender may at any time assign to one or more Eligible
Assignees all or a portion of its rights and obligations under this Agreement
(including all or a portion of its
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Commitment and the Loans (including for purposes of this subsection (b),
participations in L/C Obligations and in Swing Line Loans) at the time owing to
it); PROVIDED that (i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender or an Affiliate of a
Lender or an Approved Fund (as defined in subsection (g) of this Section) with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) subject to each such assignment,
determined as of the date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if "Trade Date" is
specified in the Assignment and Assumption, as of the Trade Date, shall not be
less than $5,000,000 unless each of the Administrative Agent and, so long as no
Event of Default has occurred and is continuing, the Borrower otherwise consents
(each such consent not to be unreasonably withheld or delayed); (ii) each
partial assignment shall be made as an assignment of a proportionate part of all
the assigning Lender's rights and obligations under this Agreement with respect
to the Loans or the Commitment assigned, except that this clause (ii) shall not
apply to rights in respect of Swing Line Loans; (iii) any assignment of a
Commitment must be approved by the Administrative Agent, the L/C Issuer and the
Swing Line Lender unless the Person that is the proposed assignee is itself a
Lender (whether or not the proposed assignee would otherwise qualify as an
Eligible Assignee); and (iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and Assumption, together with
a processing and recordation fee of $3,500. Subject to acceptance and recording
thereof by the Administrative Agent pursuant to subsection (c) of this Section,
from and after the effective date specified in each Assignment and Assumption,
the Eligible Assignee thereunder shall be a party to this Agreement and, to the
extent of the interest assigned by such Assignment and Assumption, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Assumption, be released from its obligations under this Agreement
(and, in the case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of SECTIONS
4.01, 4.04, 4.05, 11.04 and 11.05 with respect to facts and circumstances
occurring prior to the effective date of such assignment). Upon request, the
Borrower (at its expense) shall execute and deliver a Note to the assignee
Lender. Any assignment or transfer by a Lender of rights or obligations under
this Agreement that does not comply with this subsection shall be treated for
purposes of this Agreement as a sale by such Lender of a participation in such
rights and obligations in accordance with subsection (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at the Administrative Agent's Office a
copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amounts of the Loans and L/C Obligations owing to, each Lender
pursuant to the terms hereof from time to time (the "REGISTER"). The entries in
the Register shall be conclusive, and the Borrower, the Administrative Agent and
the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this
Agreement, notwithstanding notice to the contrary. The Register shall be
available for inspection by the Borrower and any Lender, at any reasonable time
and from time to time upon reasonable prior notice.
97
(d) Any Lender may at any time, without the consent of, or notice to,
the Borrower or the Administrative Agent, sell participations to any Person
(other than a natural person or the Borrower or any of the Borrower's Affiliates
or Subsidiaries) (each, a "PARTICIPANT") in all or a portion of such Lender's
rights and/or obligations under this Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations in L/C
Obligations and/or Swing Line Loans) owing to it); PROVIDED that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations and (iii) the Borrower, the Administrative Agent
and the other Lenders shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement. Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole right to
enforce this Agreement and to approve any amendment, modification or waiver of
any provision of this Agreement; PROVIDED that such agreement or instrument may
provide that such Lender will not, without the consent of the Participant, agree
to any amendment, waiver or other modification described in the first proviso to
SECTION 11.01 that directly affects such Participant. Subject to subsection (e)
of this Section, the Borrower agrees that each Participant shall be entitled to
the benefits of SECTIONS 4.01, 4.04 and 4.05 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to subsection (b) of
this Section. To the extent permitted by law, each Participant also shall be
entitled to the benefits of SECTION 11.09 as though it were a Lender, PROVIDED
such Participant agrees to be subject to SECTION 3.06 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater payment
under SECTION 4.01 or 4.04 than the applicable Lender would have been entitled
to receive with respect to the participation sold to such Participant, unless
the sale of the participation to such Participant is made with the Borrower's
prior written consent. A Participant that would be a Foreign Lender if it were a
Lender shall not be entitled to the benefits of SECTION 4.01 unless the Borrower
is notified of the participation sold to such Participant and such Participant
agrees, for the benefit of the Borrower, to comply with SECTION 11.15 as though
it were a Lender.
(f) Any Lender may at any time pledge or assign a security interest in
all or any portion of its rights under this Agreement (including under its Note,
if any) to secure obligations of such Lender, including any pledge or assignment
to secure obligations to a Federal Reserve Bank; PROVIDED that no such pledge or
assignment shall release such Lender from any of its obligations hereunder or
substitute any such pledgee or assignee for such Lender as a party hereto.
(g) As used herein, the following terms have the following meanings:
"ELIGIBLE ASSIGNEE" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the L/C Issuer
and the Swing Line Lender, and (ii) unless an Event of Default has occurred
and is continuing, the Borrower (each such approval not to be unreasonably
withheld or delayed); PROVIDED that notwithstanding the foregoing,
"Eligible Assignee" shall not include the Borrower or any of the Borrower's
Affiliates or Subsidiaries.
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"FUND" means any Person (other than a natural person) that is (or
will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of
its business.
"APPROVED FUND" means any Fund that is administered or managed by
(a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an Affiliate
of an entity that administers or manages a Lender.
(h) Notwithstanding anything to the contrary contained herein, any
Lender that is a Fund may create a security interest in all or any portion
of the Loans owing to it and the Note, if any, held by it to the trustee
for holders of obligations owed, or securities issued, by such Fund as
security for such obligations or securities, PROVIDED that unless and until
such trustee actually becomes a Lender in compliance with the other
provisions of this SECTION 11.07, (i) no such pledge shall release the
pledging Lender from any of its obligations under the Loan Documents and
(ii) such trustee shall not be entitled to exercise any of the rights of a
Lender under the Loan Documents even though such trustee may have acquired
ownership rights with respect to the pledged interest through foreclosure
or otherwise.
(i) Notwithstanding anything to the contrary contained herein, if at
any time Bank of America assigns all of its Commitment and Loans pursuant to
subsection (b) above, Bank of America may, (i) upon 30 days' notice to the
Borrower and the Lenders, resign as L/C Issuer and/or (ii) upon 30 days' notice
to the Borrower, resign as Swing Line Lender. In the event of any such
resignation as L/C Issuer or Swing Line Lender, the Borrower shall be entitled
to appoint from among the Lenders a successor L/C Issuer or Swing Line Lender
hereunder; PROVIDED, HOWEVER, that no failure by the Borrower to appoint any
such successor shall affect the resignation of Bank of America as L/C Issuer or
Swing Line Lender, as the case may be. If Bank of America resigns as L/C Issuer,
it shall retain all the rights and obligations of the L/C Issuer hereunder with
respect to all Letters of Credit outstanding as of the effective date of its
resignation as L/C Issuer and all L/C Obligations with respect thereto
(including the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to SECTION 2.05(c)). If Bank of
America resigns as Swing Line Lender, it shall retain all the rights of the
Swing Line Lender provided for hereunder with respect to Swing Line Loans made
by it and outstanding as of the effective date of such resignation, including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in outstanding Swing Line Loans pursuant to SECTION 2.06(c).
11.08 CONFIDENTIALITY. Each of the Administrative Agent and the Lenders
agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its and its Affiliates'
directors, officers, employees and agents, including accountants, legal counsel
and other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested
by any regulatory authority (including any self-regulatory authority, such as
the National Association of Insurance Commissioners), (c) to the extent required
by applicable laws or regulations or by any subpoena or similar legal process,
(d) to any other party hereto, (e) in connection with the exercise of any
remedies hereunder or under any other Loan Document or any action or proceeding
relating to this Agreement or any other Loan Document or the enforcement of
rights hereunder or
99
thereunder, (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any assignee of or Participant in, or any
prospective assignee of or Participant in, any of its rights or obligations
under this Agreement or (ii) any actual or prospective counterparty (or its
advisors) to any swap or derivative transaction relating to the Borrower and its
obligations, (g) with the consent of the Borrower or (h) to the extent such
Information (x) becomes publicly available other than as a result of a breach of
this Section or (y) becomes available to the Administrative Agent or any Lender
on a nonconfidential basis from a source other than the Borrower. For purposes
of this Section, "INFORMATION" means all information received from any Loan
Party relating to any Loan Party or any of their respective businesses, other
than any such information that is available to the Administrative Agent or any
Lender on a nonconfidential basis prior to disclosure by any Loan Party,
PROVIDED that, in the case of information received from a Loan Party after the
date hereof, such information is clearly identified at the time of delivery as
confidential. Any Person required to maintain the confidentiality of Information
as provided in this Section shall be considered to have complied with its
obligation to do so if such Person has exercised the same degree of care to
maintain the confidentiality of such Information as such Person would accord to
its own confidential information. Notwithstanding anything herein to the
contrary, "Information" shall not include, and the Administrative Agent and each
Lender may disclose without limitation of any kind, any information with respect
to the "tax treatment" and "tax structure" (in each case, within the meaning of
Treasury Regulation Section 1.6011-4) of the transactions contemplated hereby
and all materials of any kind (including opinions or other tax analyses) that
are provided to the Administrative Agent or such Lender relating to such tax
treatment and tax structure; PROVIDED that with respect to any document or
similar item that in either case contains information concerning the tax
treatment or tax structure of the transaction as well as other information, this
sentence shall only apply to such portions of the document or similar item that
relate to the tax treatment or tax structure of the Loans, Letters of Credit and
transactions contemplated hereby.
11.09 SET-OFF. In addition to any rights and remedies of the Lenders
provided by law, upon the occurrence and during the continuance of any Event of
Default, each Lender is authorized at any time and from time to time, without
prior notice to the Borrower or any other Loan Party, any such notice being
waived by the Borrower (on its own behalf and on behalf of each Loan Party) to
the fullest extent permitted by law, to set off and apply any and all deposits
(general or special, time or demand, provisional or final) at any time held by,
and other indebtedness at any time owing by, such Lender to or for the credit or
the account of the respective Loan Parties against any and all Obligations owing
to such Lender hereunder or under any other Loan Document, now or hereafter
existing, irrespective of whether or not the Administrative Agent or such Lender
shall have made demand under this Agreement or any other Loan Document and
although such Obligations may be contingent or unmatured or denominated in a
currency different from that of the applicable deposit or indebtedness. Each
Lender agrees promptly to notify the Borrower and the Administrative Agent after
any such set-off and application made by such Lender; PROVIDED, HOWEVER, that
the failure to give such notice shall not affect the validity of such set-off
and application.
11.10 INTEREST RATE LIMITATION. Notwithstanding anything to the contrary
contained in any Loan Document, the interest paid or agreed to be paid under the
Loan Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "MAXIMUM RATE"). If the Administrative Agent or
any Lender shall receive interest in an amount that
100
exceeds the Maximum Rate, the excess interest shall be applied to the principal
of the Loans or, if it exceeds such unpaid principal, refunded to the Borrower.
In determining whether the interest contracted for, charged, or received by the
Administrative Agent or a Lender exceeds the Maximum Rate, such Person may, to
the extent permitted by applicable Law, (a) characterize any payment that is not
principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations hereunder.
11.11 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
11.12 INTEGRATION. This Agreement, together with the other Loan
Documents, comprises the complete and integrated agreement of the parties on the
subject matter hereof and thereof and supersedes all prior agreements, written
or oral, on such subject matter. In the event of any conflict between the
provisions of this Agreement and those of any other Loan Document, the
provisions of this Agreement shall control; PROVIDED that the inclusion of
supplemental rights or remedies in favor of the Administrative Agent or the
Lenders in any other Loan Document shall not be deemed a conflict with this
Agreement. Each Loan Document was drafted with the joint participation of the
respective parties thereto and shall be construed neither against nor in favor
of any party, but rather in accordance with the fair meaning thereof.
11.13 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All representations and
warranties made hereunder and in any other Loan Document or other document
delivered pursuant hereto or thereto or in connection herewith or therewith
shall survive the execution and delivery hereof and thereof. Such
representations and warranties have been or will be relied upon by the
Administrative Agent and each Lender, regardless of any investigation made by
the Administrative Agent or any Lender or on their behalf and notwithstanding
that the Administrative Agent or any Lender may have had notice or knowledge of
any Default at the time of any Credit Extension, and shall continue in full
force and effect as long as any Loan or any other Obligation hereunder shall
remain unpaid or unsatisfied or any Letter of Credit shall remain outstanding.
11.14 SEVERABILITY. If any provision of this Agreement or the other Loan
Documents is held to be illegal, invalid or unenforceable, (a) the legality,
validity and enforceability of the remaining provisions of this Agreement and
the other Loan Documents shall not be affected or impaired thereby and (b) the
parties shall endeavor in good faith negotiations to replace the illegal,
invalid or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the illegal, invalid or
unenforceable provisions. The invalidity of a provision in a particular
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
11.15 TAX FORMS.
(a) (i) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "FOREIGN LENDER") shall deliver to
the Administrative Agent,
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prior to receipt of any payment subject to withholding under the Code (or upon
accepting an assignment of an interest herein), two duly signed completed copies
of either IRS Form W-8BEN or any successor thereto (relating to such Foreign
Lender and entitling it to an exemption from, or reduction of, withholding tax
on all payments to be made to such Foreign Lender by the Borrower pursuant to
this Agreement) or IRS Form W-8ECI or any successor thereto (relating to all
payments to be made to such Foreign Lender by the Borrower pursuant to this
Agreement) or such other evidence satisfactory to the Borrower and the
Administrative Agent that such Foreign Lender is entitled to an exemption from,
or reduction of, U.S. withholding tax, including any exemption pursuant to
Section 881(c) of the Code. Thereafter and from time to time, each such Foreign
Lender shall (A) promptly submit to the Administrative Agent such additional
duly completed and signed copies of one of such forms (or such successor forms
as shall be adopted from time to time by the relevant United States taxing
authorities) as may then be available under then current United States laws and
regulations to avoid, or such evidence as is satisfactory to the Borrower and
the Administrative Agent of any available exemption from or reduction of, United
States withholding taxes in respect of all payments to be made to such Foreign
Lender by the Borrower pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which would modify or render
invalid any claimed exemption or reduction, and (C) take such steps as shall not
be materially disadvantageous to it, in the reasonable judgment of such Lender,
and as may be reasonably necessary (including the re-designation of its Lending
Office) to avoid any requirement of applicable Laws that the Borrower make any
deduction or withholding for taxes from amounts payable to such Foreign Lender.
(ii) Each Foreign Lender, to the extent it does not act or
ceases to act for its own account with respect to any portion of any sums paid
or payable to such Lender under any of the Loan Documents (for example, in the
case of a typical participation by such Lender), shall deliver to the
Administrative Agent on the date when such Foreign Lender ceases to act for its
own account with respect to any portion of any such sums paid or payable, and at
such other times as may be necessary in the determination of the Administrative
Agent (in the reasonable exercise of its discretion), (A) two duly signed
completed copies of the forms or statements required to be provided by such
Lender as set forth above, to establish the portion of any such sums paid or
payable with respect to which such Lender acts for its own account that is not
subject to U.S. withholding tax, and (B) two duly signed completed copies of IRS
Form W-8IMY (or any successor thereto), together with any information such
Lender chooses to transmit with such form, and any other certificate or
statement of exemption required under the Code, to establish that such Lender is
not acting for its own account with respect to a portion of any such sums
payable to such Lender.
(iii) The Borrower shall not be required to pay any additional
amount to any Foreign Lender under SECTION 4.01 (A) with respect to any Taxes
required to be deducted or withheld on the basis of the information,
certificates or statements of exemption such Lender transmits with an IRS Form
W-8IMY pursuant to this SECTION 11.15(a) or (B) if such Lender shall have failed
to satisfy the foregoing provisions of this SECTION 11.15(a); PROVIDED that if
such Lender shall have satisfied the requirement of this SECTION 11.15(a) on the
date such Lender became a Lender or ceased to act for its own account with
respect to any payment under any of the Loan Documents, nothing in this SECTION
11.15(a) shall relieve the Borrower of its obligation to pay any amounts
pursuant to SECTION 4.01 in the event that, as a result of any change in any
102
applicable law, treaty or governmental rule, regulation or order, or any change
in the interpretation, administration or application thereof, such Lender is no
longer properly entitled to deliver forms, certificates or other evidence at a
subsequent date establishing the fact that such Lender or other Person for the
account of which such Lender receives any sums payable under any of the Loan
Documents is not subject to withholding or is subject to withholding at a
reduced rate.
(iv) The Administrative Agent may, without reduction, withhold
any Taxes required to be deducted and withheld from any payment under any of the
Loan Documents with respect to which the Borrower is not required to pay
additional amounts under this SECTION 11.15(a).
(b) Upon the request of the Administrative Agent, each Lender that is a
"United States person" within the meaning of Section 7701(a)(30) of the Code
shall deliver to the Administrative Agent two duly signed completed copies of
IRS Form W-9. If such Lender fails to deliver such forms, then the
Administrative Agent may withhold from any interest payment to such Lender an
amount equivalent to the applicable back-up withholding tax imposed by the Code,
without reduction.
(c) If any Governmental Authority asserts that the Administrative Agent
did not properly withhold or backup withhold, as the case may be, any tax or
other amount from payments made to or for the account of any Lender, such Lender
shall indemnify the Administrative Agent therefor, including all penalties and
interest, any taxes imposed by any jurisdiction on the amounts payable to the
Administrative Agent under this Section, and costs and expenses (including
Attorney Costs) of the Administrative Agent. The obligation of the Lenders under
this Section shall survive the termination of the Aggregate Commitments,
repayment of all other Obligations hereunder and the resignation of the
Administrative Agent.
11.16 GOVERNING LAW.
(a) THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE
WITH, THE LAW OF THE STATE OF
NORTH CAROLINA APPLICABLE TO AGREEMENTS MADE AND
TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT THE ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
(b) ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN XXX XXXXXX XX XXX XXXXX XX XXXXX
XXXXXXXX SITTING IN
NORTH CAROLINA OR OF THE UNITED STATES FOR THE WESTERN
DISTRICT OF SUCH STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN
RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. THE
BORROWER, THE ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Chief Financial Officer
-------------------------------
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxx
--------------------------------
Title: AGENCY OFFICER,
ASSISTANT VICE-PRESIDENT
-------------------------------
BANK OF AMERICA, N.A., as a Lender, L/C
Issuer and Swing Line Lender
By: /s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
-------------------------------
Title: Senior Vice President
-------------------------------
NATIONAL CITY BANK OF KENTUCKY,
as a Lender
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
-------------------------------
Title: Senior Vice President
-------------------------------
BANK ONE,
as a Lender
By: /s/ Xxxx X. Xxxxxx
----------------------------------
Name: Xxxx X. Xxxxxx
-------------------------------
Title: First Vice President
-------------------------------
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxx X. Xxx
----------------------------------
Name: Xxxx X. Xxx
-------------------------------
Title: Vice President
-------------------------------
PNC BANK N.A.,
as a Lender
By: /s/ Xxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxxxx
-------------------------------
Title: Assistant Vice President
-------------------------------
FIFTH THIRD BANK, KENTUCKY, INC.,
as a Lender
By: /s/ Xxxxxxx Xxxxxxx
----------------------------------
Name: Xxxxxxx Xxxxxxx
-------------------------------
Title: Assistant Vice President
-------------------------------
EXHIBIT A
FORM OF LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain
Credit Agreement, dated as of July 16,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "AGREEMENT;" the terms defined therein being used
herein as therein defined), among Texas Roadhouse Holdings LLC, a Kentucky
limited liability company (the "BORROWER"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned hereby requests (select one):
/ / A Borrowing of Construction Loans / / A Borrowing of Working Capital
Loans
/ / A conversion or continuation of Loans
1. On ______________________________________ (a Business Day).
2. In the amount of $______________________.
3. Comprised of ___________________________.
[Type of Loan requested]
4. For Eurodollar Rate Loans: with an Interest Period of _______ months.
The Borrowing requested herein complies with the proviso to the first
sentence of SECTION 2.01 OR SECTION 2.02 of the Agreement.
TEXAS ROADHOUSE HOLDINGS LLC
By:
--------------------------------
Name:
-----------------------------
Title:
-----------------------------
A-1
EXHIBIT B
FORM OF SWING LINE LOAN NOTICE
Date: ___________, _____
To: Bank of America, N.A., as Swing Line Lender
Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain
Credit Agreement, dated as of July 16,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "AGREEMENT;" the terms defined therein being used
herein as therein defined), among Texas Roadhouse Holdings LLC, a Kentucky
limited liability company (the "BORROWER"), the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The undersigned hereby requests a Swing Line Loan:
1. On _______________________________________ (a Business Day).
2. In the amount of $ ______________________.
The Swing Line Borrowing requested herein complies with the requirements of
the provisos to the first sentence of SECTION 2.06 of the Agreement.
TEXAS ROADHOUSE HOLDINGS LLC
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
B-1
EXHIBIT C
TERM LOAN NOTE
$______________ _____, 2003
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), hereby promises to
pay to __________________________ or registered assigns (the "LENDER"), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Term Loan from time to time made by the Lender to the
Borrower under that certain
Credit Agreement, dated as of July __, 2003 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "AGREEMENT;" the terms defined therein being used herein as
therein defined), among the Borrower, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Term Loan from the date of such Term Loan until such principal amount is
paid in full, at such interest rates and at such times as provided in the
Agreement. Except as otherwise provided in SECTION 2.06(f) of the Agreement with
respect to Swing Line Loans, all payments of principal and interest shall be
made to the Administrative Agent for the account of the Lender in Dollars in
immediately available funds at the Administrative Agent's Office. If any amount
is not paid in full when due hereunder, such unpaid amount shall bear interest,
to be paid upon demand, from the due date thereof until the date of actual
payment (and before as well as after judgment) computed at the per annum rate
set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Guaranty Agreements and is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Agreement.
Term Loans made by the Lender shall be evidenced by one or more loan accounts or
records maintained by the Lender in the ordinary course of business. The Lender
may also attach schedules to this Note and endorse thereon the date, amount and
maturity of its Term Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NORTH CAROLINA.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
TERM LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
---- --------- --------- ------ ---- --------- -------
CONSTRUCTION LOAN NOTE
$______________ _____, 2003
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), hereby promises to
pay to __________________________ or registered assigns (the "LENDER"), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Construction Loan from time to time made by the Lender
to the Borrower under that certain
Credit Agreement, dated as of July 16, 2003
(as amended, restated, extended, supplemented or otherwise modified in writing
from time to time, the "AGREEMENT;" the terms defined therein being used herein
as therein defined), among the Borrower, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Construction Loan from the date of such Construction Loan until such
principal amount is paid in full, at such interest rates and at such times as
provided in the Agreement. Except as otherwise provided in SECTION 2.06(f) of
the Agreement with respect to Swing Line Loans, all payments of principal and
interest shall be made to the Administrative Agent for the account of the Lender
in Dollars in immediately available funds at the Administrative Agent's Office.
If any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Guaranty Agreements and is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Agreement.
Construction Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Construction Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NORTH CAROLINA.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
CONSTRUCTION LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
---- --------- --------- ------ ---- --------- -------
WORKING CAPITAL LOAN NOTE
$______________ _____, 2003
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), hereby promises to
pay to __________________________ or registered assigns (the "LENDER"), in
accordance with the provisions of the Agreement (as hereinafter defined), the
principal amount of each Working Capital Loan from time to time made by the
Lender to the Borrower under that certain
Credit Agreement, dated as of July 16,
2003 (as amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "AGREEMENT;" the terms defined therein being used
herein as therein defined), among the Borrower, the Lenders from time to time
party thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer
and Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Working Capital Loan from the date of such each Working Capital Loan until
such principal amount is paid in full, at such interest rates and at such times
as provided in the Agreement. Except as otherwise provided in SECTION 2.06(f) of
the Agreement with respect to Swing Line Loans, all payments of principal and
interest shall be made to the Administrative Agent for the account of the Lender
in Dollars in immediately available funds at the Administrative Agent's Office.
If any amount is not paid in full when due hereunder, such unpaid amount shall
bear interest, to be paid upon demand, from the due date thereof until the date
of actual payment (and before as well as after judgment) computed at the per
annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Guaranty Agreements and is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Agreement.
Working Capital Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Working Capital Loans and payments with respect
thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NORTH CAROLINA.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
--------------------------------
Name:
------------------------------
Title:
-----------------------------
WORKING CAPITAL LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
---- --------- --------- ------ ---- --------- -------
SWING LINE LOAN NOTE
$2,000,000 ______, 2003
FOR VALUE RECEIVED, the undersigned (the "BORROWER"), hereby promises to
pay to BANK OF AMERICA, N.A. or registered assigns (the "LENDER"), in accordance
with the provisions of the Agreement (as hereinafter defined), the principal
amount of each Swing Line Loan from time to time made by the Lender to the
Borrower under that certain
Credit Agreement, dated as of July 16, 2003 (as
amended, restated, extended, supplemented or otherwise modified in writing from
time to time, the "AGREEMENT;" the terms defined therein being used herein as
therein defined), among the Borrower, the Lenders from time to time party
thereto, and Bank of America, N.A., as Administrative Agent, L/C Issuer and
Swing Line Lender.
The Borrower promises to pay interest on the unpaid principal amount of
each Swing Line Loan from the date of such Swing Line Loan until such principal
amount is paid in full, at such interest rates and at such times as provided in
the Agreement. All payments of principal and interest shall be made to the
Lender for the account of the Lender in Dollars in immediately available funds
at the Administrative Agent's Office. Swing Line Loans refinanced as Working
Capital Loans in accordance with SECTION 2.06(c) of the Credit Agreement shall
be payable by the Borrower as Working Capital Loans pursuant to the Working
Capital Notes, and shall not be payable under the Swing Line Note as Swing Line
Loans. If any amount is not paid in full when due hereunder, such unpaid amount
shall bear interest, to be paid upon demand, from the due date thereof until the
date of actual payment (and before as well as after judgment) computed at the
per annum rate set forth in the Agreement.
This Note is one of the Notes referred to in the Agreement, is entitled to
the benefits thereof and may be prepaid in whole or in part subject to the terms
and conditions provided therein. This Note is also entitled to the benefits of
the Guaranty Agreements and is secured by the Collateral. Upon the occurrence
and continuation of one or more of the Events of Default specified in the
Agreement, all amounts then remaining unpaid on this Note shall become, or may
be declared to be, immediately due and payable all as provided in the Agreement.
Swing Line Loans made by the Lender shall be evidenced by one or more loan
accounts or records maintained by the Lender in the ordinary course of business.
The Lender may also attach schedules to this Note and endorse thereon the date,
amount and maturity of its Swing Line Loans and payments with respect thereto.
The Borrower, for itself, its successors and assigns, hereby waives
diligence, presentment, protest and demand and notice of protest, demand,
dishonor and non-payment of this Note.
THIS NOTE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF
NORTH CAROLINA.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
SWING LINE LOANS AND PAYMENTS WITH RESPECT THERETO
AMOUNT OF
PRINCIPAL OR OUTSTANDING
END OF INTEREST PRINCIPAL
TYPE OF AMOUNT OF INTEREST PAID THIS BALANCE NOTATION
DATE LOAN MADE LOAN MADE PERIOD DATE THIS DATE MADE BY
---- --------- --------- ------ ---- --------- -------
EXHIBIT D
FORM OF COMPLIANCE CERTIFICATE
Financial Statement Date: _____,
To: Bank of America, N.A., as Administrative Agent
Ladies and Gentlemen:
Reference is made to that certain Credit Agreement, dated as of
___________, 2003 (as amended, restated, extended, supplemented or otherwise
modified in writing from time to time, the "CREDIT AGREEMENT;" the terms defined
therein being used herein as therein defined), among Texas Roadhouse Holdings
LLC, a Kentucky limited liability company (the "BORROWER"), the Lenders from
time to time party thereto, and Bank of America, N.A., as Administrative Agent,
L/C Issuer and Swing Line Lender.
The undersigned Responsible Officer hereby certifies as of the date hereof
that he/she is the _______________________________________ of the Borrower, and
that, as such, he/she is authorized to execute and deliver this Certificate to
the Administrative Agent on the behalf of the Borrower, and that:
[USE FOLLOWING PARAGRAPH 1 FOR FISCAL YEAR-END FINANCIAL STATEMENTS]
1. Attached hereto as SCHEDULE 1 are the year-end audited financial
statements required by SECTION 7.01(a) of the Credit Agreement for the fiscal
year of the Borrower ended as of the above date, together with the report and
opinion of an independent certified public accountant required by such section.
[USE FOLLOWING PARAGRAPH 1 FOR FISCAL QUARTER-END FINANCIAL STATEMENTS]
1. Attached hereto as SCHEDULE 1 are the unaudited financial statements
required by SECTION 7.01(b) of the Credit Agreement for the fiscal quarter of
the Borrower ended as of the above date. Such financial statements fairly
present the financial condition, results of operations and cash flows of the
Borrower and its Subsidiaries in accordance with GAAP as at such date and for
such period, subject only to normal year-end audit adjustments and the absence
of footnotes.
2. The undersigned has reviewed and is familiar with the terms of the
Credit Agreement and has made, or has caused to be made under his/her
supervision, a detailed review of the transactions and condition (financial or
otherwise) of the Borrower during the accounting period covered by the attached
financial statements.
3. A review of the activities of the Borrower during such fiscal period
has been made under the supervision of the undersigned with a view to
determining whether during such fiscal period the Borrower performed and
observed all its Obligations under the Loan Documents, and
[SELECT ONE:]
[TO THE BEST KNOWLEDGE OF THE UNDERSIGNED DURING SUCH FISCAL PERIOD, THE
BORROWER PERFORMED AND OBSERVED EACH COVENANT AND CONDITION OF THE LOAN
DOCUMENTS APPLICABLE TO IT.]
--OR--
[THE FOLLOWING COVENANTS OR CONDITIONS HAVE NOT BEEN PERFORMED OR OBSERVED
AND THE FOLLOWING IS A LIST OF EACH SUCH DEFAULT AND ITS NATURE AND STATUS:]
4. The representations and warranties of the Borrower contained in
ARTICLE VI of the Credit Agreement, or which are contained in any document
furnished at any time under or in connection with the Loan Documents, are true
and correct on and as of the date hereof, except to the extent that such
representations and warranties specifically refer to an earlier date, in which
case they are true and correct as of such earlier date, and except that for
purposes of this Compliance Certificate, the representations and warranties
contained in subsections (a) and (b) of SECTION 6.05 of the Credit Agreement
shall be deemed to refer to the most recent statements furnished pursuant to
clauses (a) and (b), respectively, of SECTION 7.01 of the Credit Agreement,
including the statements in connection with which this Compliance Certificate is
delivered.
5. The financial covenant analyses and information set forth on SCHEDULE
2 attached hereto are true and accurate on and as of the date of this
Certificate.
IN WITNESS WHEREOF, the undersigned has executed this Certificate as
of ________________________, _______________.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
For the Fiscal Quarter/Year ended ___________________ ("STATEMENT DATE")
SCHEDULE 2
to the Compliance Certificate
($ in 000's)
I. SECTION 8.15 (a) - CONSOLIDATED TANGIBLE NET WORTH COVENANT.
A. Actual Consolidated Tangible Net Worth at Statement Date:
1. Shareholders' Equity of the Borrower and its
Subsidiaries: $__________
2. Intangible Assets of the Borrower and its
Subsidiaries: $__________
3. Consolidated Tangible Net Worth (Line I.A.1 LESS
Line I.A.2): $__________
B. 75% of Consolidated Net Income for each full fiscal
quarter ending after December 31, 2002 (with no deduction
for a net loss in any such fiscal quarter): $__________
C. Required Shareholder Distributions and other dividends $__________
D. 100% of the aggregate increases in Shareholders' Equity of
the Borrower after the Closing Date by reason of the
issuance and sale of capital stock or other equity
interests of the Borrower or any Subsidiary (other than
issuances to the Borrower or a wholly-owned Subsidiary),
including upon any conversion of debt securities of the
Borrower into such capital stock or other equity
interests: $__________
E. Minimum required Consolidated Tangible Net Worth
(Lines ((I.B - I.C) +I.D) PLUS $20,500,000): $__________
F. Excess (deficient) for covenant compliance (Line I.A.3 -
I.E): $__________
II. CONSOLIDATED EBITDAR CALCULATION.
A. Consolidated EBITDAR for four consecutive fiscal quarters
ending on above date ("SUBJECT PERIOD"):
1. Consolidated Net Income for Subject Period: $__________
2. Consolidated Interest Charges for Subject Period: $__________
3. Provision for income taxes for Subject Period: $__________
4. Depreciation expenses for Subject Period: $__________
5. Amortization expenses for Subject Period: $__________
6. Consolidated EBITDA (Lines II.A .1 + 2 + 3 + 4 + 5): $__________
7. Consolidated Rental Expense for Subject Period: $__________
8. Consolidated EBITDAR (Lines II.A. 6 + II.A. 7): $__________
III. CONSOLIDATED ADJUSTED FUNDED INDEBTEDNESS CALCULATION.
A. Consolidated Adjusted Funded Indebtedness:
1. Outstanding principle amount of all obligations at
Statement Date: $__________
2. All purchase money Indebtedness: $__________
3. All direct obligations under letters of credit,
bankers acceptances, bank guaranties, and similar
instruments: $__________
4. All obligations in respect of deferred purchase price
of property or services: $__________
5. Attributable Indebtedness in respect of capital
leases: $__________
6. All Guarantees (other than Excluded Guarantees) with
respect to outstanding Indebtedness of the types
referred to in numbers 1 through 5 above: $__________
7. All Indebtedness of the types referred to in numbers
1 through 6 above of any partnership or joint venture
involving the Borrower (other than a joint venture
that is itself a corporation or limited liability
company) which such partnership or joint venture is
not a direct or indirect Subsidiary of the Borrower,
in which the Borrower or a Subsidiary is a general
partner or joint venturer, unless such Indebtedness
is expressly made non-recourse to the Borrower or
such Subsidiary: $__________
8. An amount equal to the product of eight times
Consolidated Rental Expense for Subject Period: $__________
9. Consolidated Adjusted Funded Indebtedness (Lines
III.A1 + 2 +3 +4 +5 +6 +7 +8): $__________
IV. SECTION 8.15 (c) - CONSOLIDATED LEVERAGE RATIO COVENANT.
A. Consolidated Adjusted Funded Indebtedness at Statement
Date (Line III.A.9 above): $__________
B. Consolidated EBITDAR for Subject Period (Line II.A.8
above): $__________
C. Consolidated New United Pre-Opening Costs for Subject
Period (up to the maximum amount permitted by SECTION 8.18
of the Credit Agreement) deducted from Consolidated Net
Income for Subject Period): $__________
D. Consolidated Leverage Ratio (Line IV.A DIVIDED BY (Line
IV.B + Line IV.C)): _______to 1
Maximum permitted:
MAXIMUM
CONSOLIDATED
FOUR FISCAL QUARTERS ENDING LEVERAGE RATIO
----------------------------------------------------------
Closing Date through June 29, 2004 3.50 to 1.00
July 30, 2004 through June 28, 2005 3.25 to 1.00
July 29, 2005 through June 30, 2006 3.00 to 1.00
V. SECTION 8.15 (b) - CONSOLIDATED FIXED CHARGE COVERAGE RATIO COVENANT.
A. Consolidated EBITDAR for Subject Period (Line II.A.8
above): $__________
B. Consolidated Fixed Charges for Subject Period:
1. Consolidated Interest Charges paid or payable in cash
for such period: $__________
2. Amount of scheduled principal payments with respect
to Indebtedness for such period: $__________
3. Amount equal to the sum of 1/15th of the Construction
Loan Outstandings as of the last day of such period
PLUS 1/15th of the Working Capital Outstandings as of
the last day of such period: $__________
4. Consolidated Rental Expense for such period: $__________
5. Dividends and other distributions (including, without
limitation, Required Shareholder Distributions) paid
in cash for such period (excluding any dividends and
distributions to minority owners of Joint Venture
Subsidiaries): $__________
6. Amount (a LESS b): $__________
a. Actual cash dividends and distributions to
minority owners of Joint Venture Subsidiaries: $__________
b. Actual minority ownership expense attributable to
such minority owners of the Joint Venture
Subsidiaries: $__________
7. Assumed Capital Expenditures: $__________
8. Consolidated Fixed Charges (Lines V.B. 1 + 2+ 3 + 4+
5+ 6 + 7): $__________
C. Consolidated Fixed Charge Coverage Ratio (Line V.A DIVIDED
BY V.B.8): $__________
D. Minimum Consolidated Fixed Charge Coverage Ratio of 1.10 to
1.00.
VI. SECTION 8.16 -- CAPITAL EXPENDITURES.
A. Capital Expenditures made during Fiscal Year to date: $__________
MAXIMUM
AMOUNT OF CAPITAL
FISCAL YEAR TIME PERIODS EXPENDITURES
-----------------------------------------------------------------
January 1, 2003 through December 30, 2003 $ 45,000,000
December 31, 2003 through December 28, 2004 $ 55,000,000
December 29, 2004 through December 27, 2005 $ 60,000,000
December 28, 2005 through December 26, 2006 $ 65,000,000
EXHIBIT E
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (this "ASSIGNMENT AND ASSUMPTION") is dated
as of the Effective Date set forth below and is entered into by and between
[INSERT NAME OF ASSIGNOR] (the "ASSIGNOR") and [INSERT NAME OF ASSIGNEE] (the
"ASSIGNEE"). Capitalized terms used but not defined herein shall have the
meanings given to them in the Credit Agreement identified below (the "CREDIT
AGREEMENT"), receipt of a copy of which is hereby acknowledged by the Assignee.
The Standard Terms and Conditions set forth in Annex 1 attached hereto are
hereby agreed to and incorporated herein by reference and made a part of this
Assignment and Assumption as if set forth herein in full.
For an agreed consideration, the Assignor hereby irrevocably sells and
assigns to the Assignee, and the Assignee hereby irrevocably purchases and
assumes from the Assignor, subject to and in accordance with the Standard Terms
and Conditions and the Credit Agreement, as of the Effective Date inserted by
the Administrative Agent as contemplated below (i) all of the Assignor's rights
and obligations as a Lender under the Credit Agreement and any other documents
or instruments delivered pursuant thereto to the extent related to the amount
and percentage interest identified below of all of such outstanding rights and
obligations of the Assignor under the respective facilities identified below
(including, without limitation, Letters of Credit, Guarantees and Swing Line
Loans included in such facilities) and (ii) to the extent permitted to be
assigned under applicable law, all claims, suits, causes of action and any other
right of the Assignor (in its capacity as a Lender) against any Person, whether
known or unknown, arising under or in connection with the Credit Agreement, any
other documents or instruments delivered pursuant thereto or the loan
transactions governed thereby or in any way based on or related to any of the
foregoing, including, but not limited to, contract claims, tort claims,
malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i)
above (the rights and obligations sold and assigned pursuant to clauses (i) and
(ii) above being referred to herein collectively as, the "ASSIGNED INTEREST").
Such sale and assignment is without recourse to the Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or
warranty by the Assignor.
1. Assignor: ______________________________
2. Assignee: ______________________________ [and is an
Affiliate/Approved Fund of [IDENTIFY LENDER]]
3. Borrower: Texas Roadhouse Holdings LLC, a Kentucky limited liability
company
4. Administrative Agent: Bank of America, N.A.
5. Credit Agreement: The Credit Agreement, dated as of July 16, 2003, among
Texas Roadhouse Holding LLC, the Lenders parties thereto, and Bank of
America, N.A., as Administrative Agent
E-1
6. Assigned Interest:
Aggregate
Amount of Amount of Percentage
Commitment/Loans Commitment/Loans Assigned of
FACILITY ASSIGNED FOR ALL LENDERS ASSIGNED COMMITMENT/LOANS
----------------- --------------- ----------------- ----------------
$________________ $________________ %
$________________ $________________ %
$________________ $________________ %
[7. Trade Date: __________________]
Effective Date: __________________, 20__ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR
[NAME OF ASSIGNOR]
By:
-------------------------
Title:
ASSIGNEE
[NAME OF ASSIGNEE]
By:
-------------------------
Title:
Consented to and Accepted:
BANK OF AMERICA, N.A., as
Administrative Agent
By:
--------------------------------
Title:
E-2
ANNEX 1 TO ASSIGNMENT AND ASSUMPTION
Credit Agreement, dated July 16, 2003, among Texas Roadhouse Holding LLC, a
Kentucky limited liability company, the lenders, and Bank of America, N.A., as
Administrative Agent]
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. REPRESENTATIONS AND WARRANTIES.
1.1. ASSIGNOR. The Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of the Assigned Interest, (ii) the Assigned
Interest is free and clear of any lien, encumbrance or other adverse claim and
(iii) it has full power and authority, and has taken all action necessary, to
execute and deliver this Assignment and Assumption and to consummate the
transactions contemplated hereby; and (b) assumes no responsibility with respect
to (i) any statements, warranties or representations made in or in connection
with the Credit Agreement or any other Loan Document, (ii) the execution,
legality, validity, enforceability, genuineness, sufficiency or value of the
Loan Documents or any collateral thereunder, (iii) the financial condition of
the Borrower, any of its Subsidiaries or Affiliates or any other Person
obligated in respect of any Loan Document or (iv) the performance or observance
by the Borrower, any of its Subsidiaries or Affiliates or any other Person of
any of their respective obligations under any Loan Document.
1.2. ASSIGNEE. The Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Lender under the Credit Agreement, (ii) it
meets all requirements of an Eligible Assignee under the Credit Agreement
(subject to receipt of such consents as may be required under the Credit
Agreement), (iii) from and after the Effective Date, it shall be bound by the
provisions of the Credit Agreement as a Lender thereunder and, to the extent of
the Assigned Interest, shall have the obligations of a Lender thereunder, (iv)
it has received a copy of the Credit Agreement, together with copies of the most
recent financial statements delivered pursuant to Section 7.01 thereof, as
applicable, and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase the Assigned Interest on the basis of
which it has made such analysis and decision independently and without reliance
on the Administrative Agent or any other Lender, and (v) if it is a Foreign
Lender, attached hereto is any documentation required to be delivered by it
pursuant to the terms of the Credit Agreement, duly completed and executed by
the Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, the Assignor or any other Lender, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Lender.
E-3
2. PAYMENTS. From and after the Effective Date, the Administrative
Agent shall make all payments in respect of the Assigned interest (including
payments of principal, interest, fees and other amounts) to the Assignee whether
such amounts have accrued prior to or on or after the Effective Date. The
Assignor and the Assignee shall make all appropriate adjustments in payments by
the Administrative Agent for periods prior to the Effective Date or with respect
to the making of this assignment directly between themselves.
3. GENERAL PROVISIONS. This Assignment and Assumption shall be
binding upon, and inure to the benefit of, the parties hereto and their
respective successors and assigns. This Assignment and Assumption may be
executed in any number of counterparts, which together shall constitute one
instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a
manually executed counterpart of this Assignment and Assumption. This Assignment
and Assumption shall be governed by, and construed in accordance with, the law
of the State of
North Carolina.
E-4
EXECUTION COPY
EXHIBIT F-1
UNLIMITED SUBSIDIARY GUARANTY
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to TEXAS ROADHOUSE HOLDINGS LLC, a
Kentucky limited liability company (the "BORROWER") for the benefit of the
Borrower and its Subsidiaries (including, without limitation, the Guarantor, as
defined below) pursuant to that certain Credit Agreement dated July 16, 2003
(the "CREDIT AGREEMENT"), between the Borrower, each lender party thereto
(collectively, the "LENDERS") and BANK OF AMERICA, N.A., as administrative agent
for the Lenders thereunder (the "ADMINISTRATIVE AGENT"), the undersigned
Guarantor (whether one or more the "GUARANTOR", and if more than one jointly and
severally) hereby furnishes its guaranty of the Guaranteed Obligations (as
hereinafter defined) as follows:
1. GUARANTY. The Guarantor hereby absolutely and unconditionally
guarantees, as a guarantee of payment and not merely as a guarantee of
collection, prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, all "Obligations" as
defined in the Credit Agreement, and any and all existing and future
indebtedness and liabilities of every kind, nature and character, direct or
indirect, absolute or contingent, liquidated or unliquidated, voluntary or
involuntary, of the Borrower to the Administrative Agent and the Lenders arising
under the Credit Agreement and all instruments, agreements and other documents
of every kind and nature now or hereafter executed in connection with the Credit
Agreement (including all renewals, extensions and modifications thereof and all
costs, attorneys' fees and expenses incurred by the Administrative Agent and the
Lenders in connection with the collection or enforcement thereof) (collectively,
the "GUARANTEED OBLIGATIONS"). The Administrative Agent's and each of the
Lender's books and records showing the amount of the Guaranteed Obligations
shall be admissible in evidence in any action or proceeding, and shall be
binding upon the Guarantor and conclusive for the purpose of establishing the
amount of the Guaranteed Obligations. This Guaranty shall not be affected by the
genuineness, validity, regularity or enforceability of the Guaranteed
Obligations or any instrument or agreement evidencing any Guaranteed
Obligations, or by the existence, validity, enforceability, perfection, or
extent of any collateral therefor, or by any fact or circumstance relating to
the Guaranteed Obligations which might otherwise constitute a defense to the
obligations of the Guarantor under this Guaranty. The obligations of the
Guarantor hereunder shall be limited to an aggregate amount equal to the largest
amount that would not render its obligations hereunder subject to avoidance
under Section 548 of the Bankruptcy Code (Title 11, United States Code) or any
comparable provisions of any applicable state law.
2. NO SETOFF OR DEDUCTIONS; TAXES. The Guarantor represents and
warrants that it is incorporated or formed and a resident in the United States
of America. All payments by the Guarantor hereunder shall be paid in full,
without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes. If the
Guarantor must make a payment under this Guaranty, the Guarantor represents and
warrants that it will make the payment from one of its U.S. resident offices to
the Lender so that no withholding tax is imposed on the payment. If
notwithstanding the foregoing, the Guarantor
makes a payment under this Guaranty to which withholding tax applies, or any
taxes (other than taxes on net income (a) imposed by the country or any
subdivision of the country in which the Administrative Agent's or any of the
Lender's principal office or actual lending office is located and (b) measured
by the United States taxable income the Administrative Agent and the Lenders
would have received if all payments under or in respect of this Guaranty were
exempt from taxes levied by the Guarantor's country) are at any time imposed on
any payments under or in respect of this Guaranty including, but not limited to,
payments made pursuant to this Paragraph 2, the Guarantor shall pay all such
taxes to the relevant authority in accordance with applicable law such that the
Administrative Agent and the Lenders receives the sum they would have received
had no such deduction or withholding been made and shall also pay to the
Administrative Agent and the Lenders, on demand, all additional amounts which
the Administrative Agent and the Lenders specify as necessary to preserve the
after-tax yield the Administrative Agent and the Lenders would have received if
such taxes had not been imposed.
The Guarantor shall promptly provide the Administrative Agent with an
original receipt or certified copy issued by the relevant authority evidencing
the payment of any such amount required to be deducted or withheld.
3. NO TERMINATION. This Guaranty is a continuing and irrevocable
guaranty of all Guaranteed Obligations now or hereafter existing and shall
remain in full force and effect until all Guaranteed Obligations and any other
amounts payable under this Guaranty are indefeasibly paid and performed in full
and any commitments of the Administrative Agent and the Lenders or facilities
provided by the Administrative Agent and the Lenders with respect to the
Guaranteed Obligations are terminated. At the Administrative Agent's option, all
payments under this Guaranty shall be made to an office of the Administrative
Agent located in the United States and in U.S. Dollars.
4. WAIVER OF NOTICES. The Guarantor waives notice of the acceptance of
this Guaranty and of the extension or continuation of the Guaranteed Obligations
or any part thereof. The Guarantor further waives presentment, protest, notice,
dishonor or default, demand for payment and any other notices to which the
Guarantor might otherwise be entitled.
5. SUBROGATION. The Guarantor shall exercise no right of subrogation,
contribution or similar rights with respect to any payments it makes under this
Guaranty until all of the Guaranteed Obligations and any amounts payable under
this Guaranty are indefeasibly paid and performed in full and any commitments of
the Administrative Agent and the Lenders or facilities provided by the
Administrative Agent and the Lenders with respect to the Guaranteed Obligations
are terminated. If any amounts are paid to the Guarantor in violation of the
foregoing limitation, then such amounts shall be held in trust for the benefit
of the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent and the Lenders to reduce the amount of the Guaranteed
Obligations, whether matured or unmatured.
6. WAIVER OF SURETYSHIP DEFENSES. The Guarantor agrees that the
Administrative Agent and the Lenders may, at any time and from time to time, and
without notice to the Guarantor, make any agreement with the Borrower or with
any other person or entity liable on any of the Guaranteed Obligations or
providing collateral as security for the Guaranteed
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Obligations, for the extension, renewal, payment, compromise, discharge or
release of the Guaranteed Obligations or any collateral (in whole or in part),
or for any modification or amendment of the terms thereof or of any instrument
or agreement evidencing the Guaranteed Obligations or the provision of
collateral, all without in any way impairing, releasing, discharging or
otherwise affecting the obligations of the Guarantor under this Guaranty. The
Guarantor waives any defense arising by reason of any disability or other
defense of the Borrower or any other guarantor, or the cessation from any cause
whatsoever of the liability of the Borrower, or any claim that the Guarantor's
obligations exceed or are more burdensome than those of the Borrower and waives
the benefit of any statute of limitations affecting the liability of the
Guarantor hereunder. The Guarantor waives any right to enforce any remedy which
the Administrative Agent or the Lenders now have or may hereafter have against
the Borrower and waives any benefit of and any right to participate in any
security now or hereafter held by the Administrative Agent or the Lenders.
Further, the Guarantor consents to the taking of, or failure to take, any action
which might in any manner or to any extent vary the risks of the Guarantor under
this Guaranty or which, but for this provision, might operate as a discharge of
the Guarantor.
7. EXHAUSTION OF OTHER REMEDIES NOT REQUIRED. The obligations of the
Guarantor hereunder are those of primary obligor, and not merely as surety, and
are independent of the Guaranteed Obligations. The Guarantor waives diligence by
the Administrative Agent or the Lenders and action on delinquency in respect of
the Guaranteed Obligations or any part thereof, including, without limitation
any provisions of law requiring the Administrative Agent or the Lenders to
exhaust any right or remedy or to take any action against the Borrower, any
other guarantor or any other person, entity or property before enforcing this
Guaranty against the Guarantor, including but not limited to the benefits of
N.C. General Statutes Sections 26-7 through 26-9 inclusive, as amended, or any
similar statute.
8. REINSTATEMENT. Notwithstanding anything in this Guaranty to the
contrary, this Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any portion of the Guaranteed
Obligations is revoked, terminated, rescinded or reduced or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of the
Borrower or any other person or entity or otherwise, as if such payment had not
been made and whether or not the Administrative Agent or the Lenders are in
possession of or has released this Guaranty and regardless of any prior
revocation, rescission, termination or reduction.
9. SUBORDINATION. The Guarantor hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to the Guarantor, whether now
existing or hereafter arising, including but not limited to any obligation of
the Borrower to the Guarantor as subrogee of the Administrative Agent and the
Lenders or resulting from the Guarantor's performance under this Guaranty, to
the indefeasible payment in full of all Guaranteed Obligations. If the
Administrative Agent so requests, any such obligation or indebtedness of the
Borrower to the Guarantor shall be enforced and performance received by the
Guarantor as trustee for the Administrative Agent and the Lenders and the
proceeds thereof shall be paid over to the Administrative Agent and the Lenders
on account of the Guaranteed Obligations, but without reducing or affecting in
any manner the liability of the Guarantor under this Guaranty.
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10. INFORMATION. The Guarantor agrees to furnish promptly to the
Administrative Agent any and all financial or other information regarding the
Guarantor or its property as the Administrative Agent may reasonably request in
writing.
11. STAY OF ACCELERATION. In the event that acceleration of the time
for payment of any of the Guaranteed Obligations is stayed, upon the insolvency,
bankruptcy or reorganization of the Borrower or any other person or entity, or
otherwise, all such amounts shall nonetheless be payable by the Guarantor
immediately upon demand by the Administrative Agent.
12. EXPENSES. The Guarantor shall pay on demand all out-of-pocket
expenses (including reasonable attorneys' fees and expenses and the allocated
cost and disbursements of internal legal counsel) in any way relating to the
enforcement or protection of the Administrative Agent's and each of the Lender's
rights under this Guaranty, including any incurred in the preservation,
protection or enforcement of any rights of the Lender in any case commenced by
or against the Guarantor under the Bankruptcy Code (Title 11, United States
Code) or any similar or successor statute. The obligations of the Guarantor
under the preceding sentence shall survive termination of this Guaranty.
13. AMENDMENTS. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the
Administrative Agent and the Guarantor.
14. NO WAIVER; ENFORCEABILITY. No failure by the Administrative Agent
or the Lenders to exercise, and no delay in exercising, any right, remedy or
power hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy or power hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty
shall not affect the enforceability or validity of any other provision herein.
15. ASSIGNMENT; GOVERNING LAWS; JURISDICTION. This Guaranty shall (a)
bind the Guarantor and its successors and assigns, PROVIDED that the Guarantor
may not assign its rights or obligations under this Guaranty without the prior
written consent of the Administrative Agent (and any attempted assignment
without such consent shall be void), (b) inure to the benefit of the
Administrative Agent or the Lenders and their successors and assigns and the
Administrative Agent or the Lenders may, without notice to the Guarantor and
without affecting the Guarantor's obligations hereunder, assign or sell their
participations in the Guaranteed Obligations and this Guaranty, in whole or in
part, and (c) be governed by the internal laws of the State of
North Carolina.
The Guarantor hereby irrevocably (i) submits to the non-exclusive jurisdiction
of any United States Federal or State court sitting in Charlotte,
North Carolina
in any action or proceeding arising out of or relating to this Guaranty, and
(ii) waives to the fullest extent permitted by law any defense asserting an
inconvenient forum in connection therewith. Service of process by the
Administrative Agent or the Lenders in connection with such action or proceeding
shall be binding on the Guarantor if sent to the Guarantor by registered or
certified mail at its address specified below. The Guarantor agrees that the
Administrative Agent or the Lenders may disclose to any prospective purchaser
and any purchaser of all or part of the Guaranteed Obligations any and all
information in the
4
Administrative Agent's or the Lender's possession concerning the Guarantor, this
Guaranty and any security for this Guaranty.
16. CONDITION OF THE BORROWER. The Guarantor acknowledges and agrees
that it has the sole responsibility for, and has adequate means of, obtaining
from the Borrower such information concerning the financial condition, business
and operations of the Borrower as the Guarantor requires, and that the
Administrative Agent and the Lenders have no duty, and the Guarantor is not
relying on the Administrative Agent or the Lenders at any time, to disclose to
the Guarantor any information relating to the business, operations or financial
condition of the Borrower.
17. SETOFF. If and to the extent any payment is not made when due
hereunder, the Administrative Agent or the Lenders may setoff and charge from
time to time any amount so due against any or all of the Guarantor's accounts or
deposits with the Administrative Agent or the Lenders.
18. OTHER GUARANTEES. Unless otherwise agreed by the Administrative
Agent and the Guarantor in writing, this Guaranty is not intended to supersede
or otherwise affect any other guaranty now or hereafter given by the Guarantor
for the benefit of the Administrative Agent and the Lenders or any term or
provision thereof.
19. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that (a) it is duly organized and in good standing under the laws of
the jurisdiction of its organization and has full capacity and right to make and
perform this Guaranty, and all necessary authority has been obtained; (b) this
Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; (c) the making and performance of this Guaranty does
not and will not violate the provisions of any applicable law, regulation or
order, and does not and will not result in the breach of, or constitute a
default or require any consent under, any material agreement, instrument, or
document to which it is a party or by which it or any of its property may be
bound or affected; (d) all consents, approvals, licenses and authorizations of,
and filings and registrations with, any governmental authority required under
applicable law and regulations for the making and performance of this Guaranty
have been obtained or made and are in full force and effect; (e) by virtue of
its relationship with the Borrower, the execution, delivery and performance of
this Guaranty is for the direct benefit of the Guarantor and it has received
adequate consideration for this Guaranty; and (f) the financial information,
that has been delivered to the Administrative Agent and the Lenders by or on
behalf of the Guarantor, is complete and correct in all respects and accurately
presents the financial condition and the operational results of the Guarantor
and since the date of the most recent financial statements delivered to the
Administrative Agent and the Lenders, there has been no material adverse change
in the financial condition or operational results of the Guarantor.
5
20. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, THE GUARANTOR AND THE ADMINISTRATIVE AGENT EACH WAIVE TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF
THIS GUARANTY. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
21. LIMITATIONS. Notwithstanding anything herein to the contrary, under
no circumstances shall the maximum aggregate liability of the Guarantor
hereunder exceed the amount of $100,000,000, plus payment of interest accruing
on the guaranteed indebtedness, and fees, charges and costs of collecting the
guaranteed indebtedness, including reasonable attorneys' fees. Further this
Guaranty shall terminate on July 16, 2006; PROVIDED, HOWEVER, the termination of
this Guaranty on said date shall not affect the liability of the Guarantor with
respect to obligations created or incurred prior to said date, or extensions or
renewals of, interest accruing on, or fees, costs or expenses incurred with
respect to obligations on or after said date.
(Signature Page Follows)
6
IN WITNESS WHEREOF, the undersigned hereby causes this Guaranty to be
executed and delivered as of the date first above written.
TEXAS ROADHOUSE OF
_________________________________
BY: TEXAS ROADHOUSE HOLDINGS LLC, ITS
__________________________
BY: WKT RESTAURANT CORP., ITS MANAGER
By:
-------------------------------------
Name:
-----------------------------------
Title:
----------------------------------
Address:
--------------------------------
EXHIBIT F-2
LIMITED SUBSIDIARY GUARANTY
(DESIGNATED JV SUBSIDIARIES)
FOR VALUE RECEIVED, the sufficiency of which is hereby acknowledged, and in
consideration of any credit and/or financial accommodation heretofore or
hereafter from time to time made or granted to TEXAS ROADHOUSE HOLDINGS LLC, a
Kentucky limited liability company (the "BORROWER") for the benefit of the
Borrower and its Subsidiaries (including, without limitation, the Guarantor, as
defined below) pursuant to that certain Credit Agreement dated July 16, 2003
(the "CREDIT AGREEMENT"), between the Borrower, each lender party thereto
(collectively, the "LENDERS") and BANK OF AMERICA, N.A., as administrative agent
for the Lenders thereunder (the "ADMINISTRATIVE AGENT"), the undersigned
Guarantor (whether one or more the "GUARANTOR", and if more than one jointly and
severally) hereby furnishes its guaranty of the Guaranteed Obligations (as
hereinafter defined) as follows:
1. GUARANTY. The Guarantor hereby absolutely and unconditionally
guarantees, as a guarantee of payment and not merely as a guarantee of
collection, prompt payment when due, whether at stated maturity, upon
acceleration or otherwise, and at all times thereafter, of any and all existing
and future indebtedness and liabilities of every kind, nature and character,
direct or indirect, absolute or contingent, liquidated or unliquidated,
voluntary or involuntary, of the Borrower to the Administrative Agent and the
Lenders arising under the Credit Agreement and all instruments, agreements and
other documents of every kind and nature now or hereafter executed in connection
with the Credit Agreement (including all renewals, extensions and modifications
thereof and all costs, attorneys' fees and expenses incurred by the
Administrative Agent and the Lenders in connection with the collection or
enforcement thereof) (collectively, the "GUARANTEED OBLIGATIONS"). The
Administrative Agent's and each of the Lender's books and records showing the
amount of the Guaranteed Obligations shall be admissible in evidence in any
action or proceeding, and shall be binding upon the Guarantor and conclusive for
the purpose of establishing the amount of the Guaranteed Obligations. This
Guaranty shall not be affected by the genuineness, validity, regularity or
enforceability of the Guaranteed Obligations or any instrument or agreement
evidencing any Guaranteed Obligations, or by the existence, validity,
enforceability, perfection, or extent of any collateral therefor, or by any fact
or circumstance relating to the Guaranteed Obligations which might otherwise
constitute a defense to the obligations of the Guarantor under this Guaranty.
The liability of the Guarantor under this Guaranty (exclusive of liability
under any other guaranties executed by the Guarantor) shall not exceed at any
one time the total of (a) the aggregate amount of proceeds received by the
Guarantor directly or indirectly from the Borrower of any Constructions Loans,
Working Capital Loans, Swing Line Loans or Letters of Credit (all as defined in
the Credit Agreement) or any other financial accommodations under the Credit
Agreement (collectively, such amount, the "MAXIMUM PRINCIPAL AMOUNT") and (b)
all interest, fees, and other costs and expenses of the Borrower relating to or
arising out of the Guaranteed Obligations or such part of the Guaranteed
Obligations as shall not exceed the foregoing limitation. The Administrative
Agent may permit the Guaranteed Obligations of the Borrower to exceed the
Maximum Principal Amount, and may apply any amounts received from any source,
other than from the Guarantor, to the unguaranteed portion of the Borrower's
indebtedness. Any payment by the Guarantor shall not reduce the maximum
obligation of the Guarantor hereunder. The obligations of the Guarantor
hereunder shall be limited to an aggregate amount equal to the largest amount
that would not render its obligations hereunder subject to avoidance under
Section 548 of the Bankruptcy Code (Title 11, United States Code) or any
comparable provisions of any applicable state law.
2. NO SETOFF OR DEDUCTIONS; TAXES. The Guarantor represents and
warrants that it is incorporated or formed and a resident in the United States
of America. All payments by the Guarantor hereunder shall be paid in full,
without setoff or counterclaim or any deduction or withholding whatsoever,
including, without limitation, for any and all present and future taxes. If the
Guarantor must make a payment under this Guaranty, the Guarantor represents and
warrants that it will make the payment from one of its U.S. resident offices to
the Lender so that no withholding tax is imposed on the payment. If
notwithstanding the foregoing, the Guarantor makes a payment under this Guaranty
to which withholding tax applies, or any taxes (other than taxes on net income
(a) imposed by the country or any subdivision of the country in which the
Administrative Agent's or any of the Lender's principal office or actual lending
office is located and (b) measured by the United States taxable income the
Administrative Agent and the Lenders would have received if all payments under
or in respect of this Guaranty were exempt from taxes levied by the Guarantor's
country) are at any time imposed on any payments under or in respect of this
Guaranty including, but not limited to, payments made pursuant to this Paragraph
2, the Guarantor shall pay all such taxes to the relevant authority in
accordance with applicable law such that the Administrative Agent and the
Lenders receives the sum they would have received had no such deduction or
withholding been made and shall also pay to the Administrative Agent and the
Lenders, on demand, all additional amounts which the Administrative Agent and
the Lenders specify as necessary to preserve the after-tax yield the
Administrative Agent and the Lenders would have received if such taxes had not
been imposed.
The Guarantor shall promptly provide the Administrative Agent with an
original receipt or certified copy issued by the relevant authority evidencing
the payment of any such amount required to be deducted or withheld.
3. NO TERMINATION. This Guaranty is a continuing and irrevocable
guaranty of all Guaranteed Obligations now or hereafter existing and shall
remain in full force and effect until all Guaranteed Obligations and any other
amounts payable under this Guaranty are indefeasibly paid and performed in full
and any commitments of the Administrative Agent and the Lenders or facilities
provided by the Administrative Agent and the Lenders with respect to the
Guaranteed Obligations are terminated. At the Administrative Agent's option, all
payments under this Guaranty shall be made to an office of the Administrative
Agent located in the United States and in U.S. Dollars.
4. WAIVER OF NOTICES. The Guarantor waives notice of the acceptance of
this Guaranty and of the extension or continuation of the Guaranteed Obligations
or any part thereof. The Guarantor further waives presentment, protest, notice,
dishonor or default, demand for payment and any other notices to which the
Guarantor might otherwise be entitled.
2
5. SUBROGATION. The Guarantor shall exercise no right of subrogation,
contribution or similar rights with respect to any payments it makes under this
Guaranty until all of the Guaranteed Obligations and any amounts payable under
this Guaranty are indefeasibly paid and performed in full and any commitments of
the Administrative Agent and the Lenders or facilities provided by the
Administrative Agent and the Lenders with respect to the Guaranteed Obligations
are terminated. If any amounts are paid to the Guarantor in violation of the
foregoing limitation, then such amounts shall be held in trust for the benefit
of the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent and the Lenders to reduce the amount of the Guaranteed
Obligations, whether matured or unmatured.
6. WAIVER OF SURETYSHIP DEFENSES. The Guarantor agrees that the
Administrative Agent and the Lenders may, at any time and from time to time, and
without notice to the Guarantor, make any agreement with the Borrower or with
any other person or entity liable on any of the Guaranteed Obligations or
providing collateral as security for the Guaranteed Obligations, for the
extension, renewal, payment, compromise, discharge or release of the Guaranteed
Obligations or any collateral (in whole or in part), or for any modification or
amendment of the terms thereof or of any instrument or agreement evidencing the
Guaranteed Obligations or the provision of collateral, all without in any way
impairing, releasing, discharging or otherwise affecting the obligations of the
Guarantor under this Guaranty. The Guarantor waives any defense arising by
reason of any disability or other defense of the Borrower or any other
guarantor, or the cessation from any cause whatsoever of the liability of the
Borrower, or any claim that the Guarantor's obligations exceed or are more
burdensome than those of the Borrower and waives the benefit of any statute of
limitations affecting the liability of the Guarantor hereunder. The Guarantor
waives any right to enforce any remedy which the Administrative Agent or the
Lenders now have or may hereafter have against the Borrower and waives any
benefit of and any right to participate in any security now or hereafter held by
the Administrative Agent or the Lenders. Further, the Guarantor consents to the
taking of, or failure to take, any action which might in any manner or to any
extent vary the risks of the Guarantor under this Guaranty or which, but for
this provision, might operate as a discharge of the Guarantor.
7. EXHAUSTION OF OTHER REMEDIES NOT REQUIRED. The obligations of the
Guarantor hereunder are those of primary obligor, and not merely as surety, and
are independent of the Guaranteed Obligations. The Guarantor waives diligence by
the Administrative Agent or the Lenders and action on delinquency in respect of
the Guaranteed Obligations or any part thereof, including, without limitation
any provisions of law requiring the Administrative Agent or the Lenders to
exhaust any right or remedy or to take any action against the Borrower, any
other guarantor or any other person, entity or property before enforcing this
Guaranty against the Guarantor, including but not limited to the benefits of
N.C. General Statutes Sections 26-7 through 26-9 inclusive, as amended, or any
similar statute.
8. REINSTATEMENT. Notwithstanding anything in this Guaranty to the
contrary, this Guaranty shall continue to be effective or be reinstated, as the
case may be, if at any time any payment of any portion of the Guaranteed
Obligations is revoked, terminated, rescinded or reduced or must otherwise be
restored or returned upon the insolvency, bankruptcy or reorganization of the
Borrower or any other person or entity or otherwise, as if such payment had
3
not been made and whether or not the Administrative Agent or the Lenders are in
possession of or has released this Guaranty and regardless of any prior
revocation, rescission, termination or reduction.
9. SUBORDINATION. The Guarantor hereby subordinates the payment of all
obligations and indebtedness of the Borrower owing to the Guarantor, whether now
existing or hereafter arising, including but not limited to any obligation of
the Borrower to the Guarantor as subrogee of the Administrative Agent and the
Lenders or resulting from the Guarantor's performance under this Guaranty, to
the indefeasible payment in full of all Guaranteed Obligations. If the
Administrative Agent so requests, any such obligation or indebtedness of the
Borrower to the Guarantor shall be enforced and performance received by the
Guarantor as trustee for the Administrative Agent and the Lenders and the
proceeds thereof shall be paid over to the Administrative Agent and the Lenders
on account of the Guaranteed Obligations, but without reducing or affecting in
any manner the liability of the Guarantor under this Guaranty.
10. INFORMATION. The Guarantor agrees to furnish promptly to the
Administrative Agent any and all financial or other information regarding the
Guarantor or its property as the Administrative Agent may reasonably request in
writing.
11. STAY OF ACCELERATION. In the event that acceleration of the time
for payment of any of the Guaranteed Obligations is stayed, upon the insolvency,
bankruptcy or reorganization of the Borrower or any other person or entity, or
otherwise, all such amounts shall nonetheless be payable by the Guarantor
immediately upon demand by the Administrative Agent.
12. EXPENSES. The Guarantor shall pay on demand all out-of-pocket
expenses (including reasonable attorneys' fees and expenses and the allocated
cost and disbursements of internal legal counsel) in any way relating to the
enforcement or protection of the Administrative Agent's and each of the Lender's
rights under this Guaranty, including any incurred in the preservation,
protection or enforcement of any rights of the Lender in any case commenced by
or against the Guarantor under the Bankruptcy Code (Title 11, United States
Code) or any similar or successor statute. The obligations of the Guarantor
under the preceding sentence shall survive termination of this Guaranty.
13. AMENDMENTS. No provision of this Guaranty may be waived, amended,
supplemented or modified, except by a written instrument executed by the
Administrative Agent and the Guarantor.
14. NO WAIVER; ENFORCEABILITY. No failure by the Administrative Agent
or the Lenders to exercise, and no delay in exercising, any right, remedy or
power hereunder shall operate as a waiver thereof; nor shall any single or
partial exercise of any right, remedy or power hereunder preclude any other or
further exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law or in
equity. The unenforceability or invalidity of any provision of this Guaranty
shall not affect the enforceability or validity of any other provision herein.
15. ASSIGNMENT; GOVERNING LAWS; JURISDICTION. This Guaranty shall (a)
bind the Guarantor and its successors and assigns, PROVIDED that the Guarantor
may not assign its rights
4
or obligations under this Guaranty without the prior written consent of the
Administrative Agent (and any attempted assignment without such consent shall be
void), (b) inure to the benefit of the Administrative Agent or the Lenders and
their successors and assigns and the Administrative Agent or the Lenders may,
without notice to the Guarantor and without affecting the Guarantor's
obligations hereunder, assign or sell their participations in the Guaranteed
Obligations and this Guaranty, in whole or in part, and (c) be governed by the
internal laws of the State of North Carolina. The Guarantor hereby irrevocably
(i) submits to the non-exclusive jurisdiction of any United States Federal or
State court sitting in Charlotte, North Carolina in any action or proceeding
arising out of or relating to this Guaranty, and (ii) waives to the fullest
extent permitted by law any defense asserting an inconvenient forum in
connection therewith. Service of process by the Administrative Agent or the
Lenders in connection with such action or proceeding shall be binding on the
Guarantor if sent to the Guarantor by registered or certified mail at its
address specified below. The Guarantor agrees that the Administrative Agent or
the Lenders may disclose to any prospective purchaser and any purchaser of all
or part of the Guaranteed Obligations any and all information in the
Administrative Agent's or the Lender's possession concerning the Guarantor, this
Guaranty and any security for this Guaranty.
16. CONDITION OF THE BORROWER. The Guarantor acknowledges and agrees
that it has the sole responsibility for, and has adequate means of, obtaining
from the Borrower such information concerning the financial condition, business
and operations of the Borrower as the Guarantor requires, and that the
Administrative Agent and the Lenders have no duty, and the Guarantor is not
relying on the Administrative Agent or the Lenders at any time, to disclose to
the Guarantor any information relating to the business, operations or financial
condition of the Borrower.
17. SETOFF. If and to the extent any payment is not made when due
hereunder, the Administrative Agent or the Lenders may setoff and charge from
time to time any amount so due against any or all of the Guarantor's accounts or
deposits with the Administrative Agent or the Lenders.
18. OTHER GUARANTEES. Unless otherwise agreed by the Administrative
Agent and the Guarantor in writing, this Guaranty is not intended to supersede
or otherwise affect any other guaranty now or hereafter given by the Guarantor
for the benefit of the Administrative Agent and the Lenders or any term or
provision thereof.
19. REPRESENTATIONS AND WARRANTIES. The Guarantor represents and
warrants that (a) it is duly organized and in good standing under the laws of
the jurisdiction of its organization and has full capacity and right to make and
perform this Guaranty, and all necessary authority has been obtained; (b) this
Guaranty constitutes its legal, valid and binding obligation enforceable in
accordance with its terms; (c) the making and performance of this Guaranty does
not and will not violate the provisions of any applicable law, regulation or
order, and does not and will not result in the breach of, or constitute a
default or require any consent under, any material agreement, instrument, or
document to which it is a party or by which it or any of its property may be
bound or affected; (d) all consents, approvals, licenses and authorizations of,
and filings and registrations with, any governmental authority required under
applicable law and regulations for the making and performance of this Guaranty
have been
5
obtained or made and are in full force and effect; (e) by virtue of its
relationship with the Borrower, the execution, delivery and performance of this
Guaranty is for the direct benefit of the Guarantor and it has received adequate
consideration for this Guaranty; and (f) the financial information, that has
been delivered to the Administrative Agent and the Lenders by or on behalf of
the Guarantor, is complete and correct in all respects and accurately presents
the financial condition and the operational results of the Guarantor and since
the date of the most recent financial statements delivered to the Administrative
Agent and the Lenders, there has been no material adverse change in the
financial condition or operational results of the Guarantor.
20. WAIVER OF JURY TRIAL; FINAL AGREEMENT. TO THE EXTENT ALLOWED BY
APPLICABLE LAW, THE GUARANTOR AND THE ADMINISTRATIVE AGENT EACH WAIVE TRIAL BY
JURY WITH RESPECT TO ANY ACTION, CLAIM, SUIT OR PROCEEDING ON OR ARISING OUT OF
THIS GUARANTY. THIS GUARANTY REPRESENTS THE FINAL AGREEMENT BETWEEN THE PARTIES
AND MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS BETWEEN THE PARTIES. THERE ARE NO UNWRITTEN ORAL AGREEMENTS
BETWEEN THE PARTIES.
(Signature Page Follows)
6
IN WITNESS WHEREOF, the undersigned hereby causes this Guaranty to be
executed and delivered as of the date first above written.
TEXAS ROADHOUSE OF
___________________________________
BY: TEXAS ROADHOUSE HOLDINGS LLC, ITS
______________________
BY: WKT RESTAURANT CORP., ITS MANAGER
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
Address:
----------------------------------
EXHIBIT G
INTERCOMPANY NOTE
$_______________ Date: _____________, 200__
FOR VALUE RECEIVED, Borrower promises to pay to the order of Lender _______
______________________ Dollars ($___________ ) (the "LOAN"). Borrower also
promises to pay to the order of Lender interest upon the outstanding principal
balance of the Loan at a rate equal to the Interest Rate (except to the extent
otherwise set forth below). Borrower shall pay to Lender, on each Payment Date
commencing August 1, 2003, all accrued and unpaid interest then outstanding on
the Loan. The outstanding principal amount of the Loan shall be repaid in equal
consecutive monthly installments on each Payment Date commencing August 1, 2003
based upon a seven (7) year straight-line amortization with the remaining unpaid
balance, together with all accrued interest thereon, to be paid in full on the
Term Loan Maturity Date.
Borrower may not prepay the principal amount of the Loan unless (i) the
Borrower obtains the prior written consent of each Lender and the Administrative
Agent (which consent may be withheld in Administrative Agent's sole discretion)
and, if such prepayment is consented to by each such Person, such prepayment
shall be in the amounts and upon the terms approved by the Administrative Agent,
or (ii) one hundred percent (100%) of the aggregate proceeds of such prepayment
paid by the Borrower to the Lender is applied by the Lender to pay loans
outstanding under the Master Credit Agreement in the manner set forth in SECTION
2.07(f)(vi) of the Master Credit Agreement.
While and so long as no Event of Default is continuing, interest shall
accrue, commencing on the date hereof, at the Interest Rate upon the daily
principal balance of this Note, based on a three hundred sixty-five (365) day
year, for the actual number of days elapsed since the date to which interest has
been paid. While and so long as an Event of Default is continuing, interest
shall accrue, commencing on the date of the occurrence of the Event of Default,
at the applicable Default Interest Rate upon the daily principal balance of this
Note, based on a three hundred sixty-five (365) day year, for the actual number
of days elapsed since the date on which such Event of Default commenced.
If any sum of principal or interest is not paid within fifteen (15) days
after the date when due, then, in addition to and not in lieu of any other
rights or remedies available to Lender, Borrower shall pay to Lender, on demand,
a late fee in an amount equal to five percent (5%) of such sum.
Payments required hereunder shall be made in lawful money of the United
States of America in immediately available funds at Lender's main office. If
required payment hereunder shall become due on a Saturday, Sunday, or public
holiday under the laws of the Commonwealth of Kentucky, such payment shall be
made on the next succeeding business day and such extension of time shall in
such case be included in computing interest in connection with such payment.
Lender is authorized to make, from time to time and based upon Lender's
records, notations on its records as to the date and amount of each payment of
principal and interest received by Lender, the principal balance of this Note,
and the date to which interest has been paid.
Any request, notice, or demand by or on behalf of Lender, five (5) days
after the date when delivered, or deposited for delivery, postage prepaid, by
certified or registered United States mail to Borrower at 0000 Xxxxxxxxx Xxxx,
Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, shall constitute, but shall not preclude
other means of, an effective request, notice, or demand. Borrower waives all
notices and demands in connection with the delivery, acceptance, performance,
default, or enforcement of this Note (including, without limitation, diligence,
demand, protest, presentment, notice of non-payment, notice of demand, notice of
protest and notice of dishonor). All provisions of this Note shall be governed
by, and interpreted in a manner consistent with, applicable State and United
States law. To the extent of any inconsistency or conflict between applicable
State and United States law, the provision of law most favoring Lender shall
control. Unenforceability of any provision or any application of any provision
of this Note in any jurisdiction shall not affect the enforceability of such
provision or such application in any other jurisdiction or of any other
provision or any other application of any provision of this Note.
Borrower hereby agrees that so long as the Loan shall remain outstanding,
Borrower shall not, as of any Fiscal Quarter end, permit the Fixed Charge
Coverage Ratio for the four consecutive Fiscal Quarter period ending on such
date, to be less than 1.20 to 1.00.
This Note is secured by the Security Documents. Borrower acknowledges that
Lender intends to assign its right, title and interest in, to and under this
Note and the Security Documents to Administrative Agent, pursuant to the
Collateral Assignment, to secure Lender's obligations under the Master Credit
Agreement and the agreements, documents and instruments executed and delivered
in connection therewith.
Any amendment or waiver of any provision of this Note or any waiver of any
right or remedy otherwise available to Lender must be in writing and signed by
Lender, and shall be null and void and of no effect unless consented to in
writing by Administrative Agent (which consent may be withheld in Administrative
Agent's sole discretion). All rights and remedies available to Lender
(including, without limitation, any as a secured party pursuant to the
provisions of Article 9 of the UCC) shall be cumulative.
At any time during the continuance of any Event of Default, at the option
of Lender, in addition to and not in lieu of any other rights or remedies
available to Lender at law or in equity, all Obligations, together with costs of
collection and reasonable attorneys' fees, shall become due and payable without
further notice or demand, and without relief from valuation and appraisement
laws.
Notwithstanding anything to the contrary contained herein, the obligations
of Borrower to Lender under this Note are subject to the limitation that
payments of interest to Lender shall not be required to the extent that receipt
by Lender of any such payment by Borrower would be contrary to provisions of
governmental requirements applicable to Lender which limit the maximum rate of
interest which may be charged or collected by Lender.
2
As used in this Note:
"ADMINISTRATIVE AGENT" means Bank of America, N.A., a national banking
association, in its capacity as administrative agent (and any successor thereto)
for the benefit of the "Lenders," the "Swing Line Lender" and the "L/C Issuer"
party to (and as such terms are defined in) the Master Credit Agreement.
"ASSUMED CAPITAL EXPENDITURES" means, for any four (4) quarter period, an
amount equal to $30,000.
"ATTRIBUTABLE INDEBTEDNESS" means, on any date, in respect of any capital
lease of any Person, the capitalized amount thereof that would appear on a
balance sheet of such Person prepared as of such date in accordance with GAAP.
"BORROWER" means the Person executing this Note and its successors and
assigns; provided, however, that Borrower may not assign or otherwise transfer
any Obligation evidenced by this Note without the prior written consent of each
of Lender and Administrative Agent, which consent may be withheld in the sole
discretion of either Lender or Administrative Agent.
"CAPITAL EXPENDITURE" means the amount of any purchase or other acquisition
which would, in accordance with GAAP, be required to be classified and accounted
for as a capital asset on Borrower's balance sheet.
"COLLATERAL ASSIGNMENT" means that certain Collateral Assignment of Note,
Mortgage/Deed of Trust, Assignment of Leases and Rents, Collateral Agreement and
Fixture Filing, and Collateral Agreement made by Lender in favor of
Administrative Agent, dated of even date herewith (as amended, modified,
renewed, replaced, restated or extended from time to time), pursuant to which
Lender shall assign its right, title and interest in, to and under this Note and
the Security Documents to Administrative Agent to secure Lender's obligations
under the Master Credit Agreement and the agreements, documents and instruments
executed and delivered in connection therewith.
"DEFAULT INTEREST RATE" a rate of interest per annum equal to the Interest
Rate plus two percent (2%) per annum
"EBITDA" means, for any period, for Borrower, an amount equal to Net Income
for such period PLUS the following to the extent deducted in calculating such
Net Income: (a) Interest Charges for such period, (b) the provision for federal,
state, local and foreign income taxes payable (but not any tax loss or refund)
by Borrower for such period, and (c) the amount of depreciation and amortization
expense deducted in determining such Net Income.
"EBITDAR" means, for any period, the sum of EBITDA PLUS Rental Expense for
such period.
"EVENT OF DEFAULT" shall mean the failure of Borrower to pay any sums due
under this Note when due, or the occurrence of any other event of default under
any of the Security Documents.
3
"FISCAL QUARTER" means each of the four periods of thirteen (13)
consecutive weeks which make up the Fiscal Year.
"FISCAL YEAR" means the Borrower's Fiscal Year, which is the period of
fifty-two (52) consecutive weeks ending on the fifty-second (52) Tuesday of the
calendar year.
"FIXED CHARGES" means, for any period, the sum of the following determined
for Borrower in accordance with GAAP: (a) Interest Charges paid or payable in
cash for such period, (b) the amount of scheduled principal payments with
respect to Indebtedness for such period, (c) Rental Expense for such period, and
(d) Assumed Capital Expenditures.
"FIXED CHARGE COVERAGE RATIO" means, as of any date of determination, the
ratio of (a) EBITDAR for the period of the four Fiscal Quarters most recently
ended TO (b) Fixed Charges for such period.
"GAAP" means generally accepted accounting principles in the United States
set forth in the opinions and pronouncements of the Accounting Principles Board
and the American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or such other
principles as may be approved by a significant segment of the accounting
profession in the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
"INDEBTEDNESS" means, as to any Person at a particular time, without
duplication, all of the following, whether or not included as indebtedness: (a)
all obligations of such Person for borrowed money and all obligations of such
Person evidenced by bonds, debentures, notes, loan agreements or other similar
instruments; (b) all direct or contingent obligations of such Person arising
under letters of credit (including standby and commercial), bankers'
acceptances, bank guaranties, surety bonds and similar instruments; (c) net
obligations of such Person under any Swap Contract; (d) all obligations of such
Person to pay the deferred purchase price of property or services (other than
trade accounts payable in the ordinary course of business); (e) indebtedness
(excluding prepaid interest thereon) secured by a lien on property owned or
being purchased by such Person (including indebtedness arising under conditional
sales or other title retention agreements), whether or not such indebtedness
shall have been assumed by such Person or is limited in recourse; (f) capital
leases; and (g) all guarantees of such Person in respect of any of the
foregoing. For all purposes hereof, the Indebtedness of any Person shall include
the Indebtedness of any partnership or joint venture (other than a joint venture
that is itself a corporation or limited liability company) in which such Person
is a general partner or a joint venturer, unless such Indebtedness is expressly
made non-recourse to such Person. The amount of any net obligation under any
Swap Contract on any date shall be deemed to be the Swap Termination Value
thereof as of such date. The amount of any capital lease as of any date shall be
deemed to be the amount of Attributable Indebtedness in respect thereof as of
such date.
"INTEREST CHARGES" means, for any period, for Borrower, the sum of (a) all
interest, premium payments, debt discount, fees, charges and related expenses of
Borrower in connection with borrowed money (including capitalized interest) or
in connection with the deferred purchase price of assets, in each case to the
extent treated as interest in accordance with GAAP, (b) the
4
portion of Rental Expense with respect to such period under capital leases that
is treated as interest in accordance with GAAP, and (c) the amount of net
settlement obligations of Borrower under any Swap Contract respecting interest
rate management and relating to the spread between the fixed interest rate under
such Swap Contract and the floating interest rate hedged thereby.
"INTEREST RATE" means a rate of interest per annum equal to the average
monthly rate of interest for all "Term Loans," as defined in the Master Credit
Agreement, for the month immediately preceding the applicable Payment Date (such
interest rate is subject to fluctuation in accordance with the terms and
provisions contained in the Master Credit Agreement); PROVIDED, HOWEVER, that
upon execution of "Swap Contracts," as defined in the Master Credit Agreement,
with an aggregate notional principal amount equal to 100% of the outstanding
"Term Loans", the average rate of interest per annum for all "Term Loans" shall
be calculated after giving effect to such "Swap Contracts".
"LENDER" means Texas Roadhouse Holdings LLC, a Kentucky limited liability
company, and its successors and assigns.
"LOAN" has the meaning assigned to that term above.
"MASTER CREDIT AGREEMENT" means that certain Credit Agreement among Lender,
Administrative Agent, the "Lenders" party thereto, the "Swing Line Lender" party
thereto, and the "L/C Issuer" party thereto, dated July 16, 2003, as amended,
modified, renewed, replaced, restated or extended from time to time.
"OBLIGATIONS" means all present or future obligations, indebtedness, and
liabilities of Borrower owed to Lender of whatever kind and however evidenced,
including, without limitation, all renewals thereof, extensions thereof,
restatements thereof, amendments thereto, and substitutions therefor; and
"OBLIGATION" means any of the Obligations. Obligations also include, without
limitation, the Loan.
"NET INCOME" means, for any period, for Borrower, the net income of
Borrower ((excluding (I) extraordinary or one-time gains and (II) extraordinary
or one-time non-cash losses) and (including extraordinary or one-time cash
losses to the extent not offset by extraordinary or one-time cash gains during
the same fiscal period) for that period.
"PAYMENT DATE" means the first business day of each calendar month.
"PERSON" shall be defined as set forth in Article 1 of the UCC.
"RENTAL EXPENSE" shall mean, for any period, for Borrower, the operating
lease expense of Borrower determined in accordance with GAAP for leases with an
initial term greater than one year, as disclosed in the notes to the
consolidated financial statements of the Lender and its Subsidiaries.
"REQUIRED JOINT VENTURE DISTRIBUTIONS" means the required monthly
distributions of the maximum amount of "net cash flow" (as defined in the
Borrower's operating documents) to
5
its equity holders in accordance with the terms and conditions of the Borrower's
operating documents.
"SECURITY DOCUMENTS" means (i) that certain Mortgage/Deed of Trust,
Assignment of Leases and Rents, Collateral Agreement and Fixture Filing made by
Borrower in favor of or for the benefit of Lender, dated of even date herewith,
and/or (ii) that certain Collateral Agreement made by Borrower in favor of
Lender, dated of even date herewith, as applicable, as either of such documents
may be amended, modified, renewed, replaced, restated or extended from time to
time.
"STATE" means the State of North Carolina.
"SWAP CONTRACT" means (a) any and all rate swap transactions, basis swaps,
credit derivative transactions, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps or
options, bond or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest rate options,
forward foreign exchange transactions, cap transactions, floor transactions,
collar transactions, currency swap transactions, cross-currency rate swap
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any options
to enter into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b) any and all transactions
of any kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., any International Foreign
Exchange Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "MASTER AGREEMENT"), including
any such obligations or liabilities under any Master Agreement.
"SWAP TERMINATION VALUE" means, in respect of any one or more Swap
Contracts, after taking into account the effect of any legally enforceable
netting agreement relating to such Swap Contracts, (a) for any date on or after
the date such Swap Contracts have been closed out and termination value(s)
determined in accordance therewith, such termination value(s), and (b) for any
date prior to the date referenced in clause (a), the amount(s) determined as the
xxxx-to-market value(s) for such Swap Contracts, as determined based upon one or
more mid-market or other readily available quotations provided by any recognized
dealer in such Swap Contracts.
"TERM LOAN MATURITY DATE" means June 30, 2010.
"UCC" means the Uniform Commercial Code of the State of North Carolina, as
amended; any reference in this Note to any provision of the UCC shall be deemed
to incorporate such provision as if fully set forth in this Note.
BORROWER, TO THE EXTENT PERMITTED BY LAW, WAIVES ANY RIGHT TO HAVE A JURY
PARTICIPATE IN RESOLVING ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT, OR
OTHERWISE, BETWEEN LENDER AND BORROWER ARISING OUT OF, IN CONNECTION WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED BETWEEN BORROWER AND
LENDER IN
6
CONNECTION WITH THIS NOTE OR ANY OTHER AGREEMENT, INSTRUMENT OR DOCUMENT
EXECUTED OR DELIVERED IN CONNECTION THEREWITH OR THE TRANSACTIONS RELATED
THERETO. BORROWER SHALL NOT SEEK TO CONSOLIDATE, BY COUNTERCLAIM OR OTHERWISE,
ANY ACTION IN WHICH A JURY TRIAL HAS BEEN WAIVED WITH ANY OTHER ACTION IN WHICH
A JURY TRIAL CANNOT BE OR HAS NOT BEEN WAIVED. THESE PROVISIONS SHALL NOT BE
DEEMED TO HAVE BEEN MODIFIED IN ANY RESPECT OR RELINQUISHED BY LENDER EXCEPT BY
WRITTEN INSTRUMENT EXECUTED BY BOTH BORROWER AND LENDER.
(SIGNATURE PAGE FOLLOWS)
7
"BORROWER"
TEXAS ROADHOUSE OF [____________
______], a________________________________
By: Texas Roadhouse Holdings LLC, its
__________________
By: WKT Restaurant Corp., its manager
By:
---------------------------------------
Name:
-------------------------------------
Title:
------------------------------------
ALLONGE
This Allonge forms a part of that certain Intercompany Note dated
______________________, 2003 made by TEXAS ROADHOUSE OF
[_________________________________] payable to the order of Texas Roadhouse
Holdings LLC.
Pay to the order of _______________________________________________________
________________________________________________________________________________
________________________________________________________________________________
, its successors and/or assigns.
This Assignment is made without representation, recourse or warranty by
Assignor except to the extent set forth in that certain Collateral Assignment of
Note, Mortgage/Deed of Trust, Assignment of Leases and Rents, Collateral
Agreement and Fixture Filing, and Collateral Agreement dated ________________,
200__ made by Assignor in favor of Bank of America, N.A. in its capacity as
Administrative Agent.
(Signature Page Follows)
9
TEXAS ROADHOUSE HOLDINGS LLC, a
Kentucky limited liability company, as Assignor
By: WKT Restaurant Corp., its manager
By:
--------------------------------------
Name:
Title:
EXHIBIT H
STATE OF _______________________
COUNTY OF _____________________
THIS INSTRUMENT PREPARED BY
AND SHOULD BE RETURNED TO:
Xxxxxx Xxxx, Esq.
XXXXXXX XXXXXXXXX XXXXXXX & XXXXXXX, L.L.P
Hearst Tower
000 Xxxxx Xxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000
(000) 000-0000
COLLATERAL ASSIGNMENT OF
NOTE, MORTGAGE/DEED OF TRUST, COLLATERAL AGREEMENT,
AND FIXTURE FILING
This COLLATERAL ASSIGNMENT OF NOTE, MORTGAGE/DEED OF TRUST, COLLATERAL
AGREEMENT, AND FIXTURE FILING ("Assignment") is entered into as of July __,
2003, by and between TEXAS ROADHOUSE HOLDINGS LLC, a limited liability company
organized under the laws of Kentucky, having an office located at 0000 Xxxxxxxxx
Xxxx, Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000 ("Borrower"), and BANK OF AMERICA,
N.A. a national banking association, as Administrative Agent pursuant to, for
the benefit of various lenders, the swing line lender and the letter of credit
issuer party to, that certain Credit Agreement of even date herewith by and
among Borrower, the lenders party thereto, the swing line lender party thereto,
the letter of credit issuer party thereto, and Bank of America, N.A., as
administrative agent (as amended, modified, renewed, replaced, restated or
extended from time
to time, the "Credit Agreement"), together with its successors and assigns,
having an office at 000 Xxxxx XxXxxxx Xxxxxx, Mail Code: IL1-231-0803, Xxxxxxx,
Xxxxxxxx 00000 (in such capacity, "Administrative Agent").
WITNESSETH
WHEREAS, Borrower is the present owner and holder of one or more of those
certain Intercompany Notes of even date herewith executed by _________________,
a _________________ ("Owner"), payable to the order of Borrower, in the original
principal sum of_______________________ and __100 Dollars ($_______________),
(as amended, restated, renewed, consolidated, supplemented or otherwise modified
from time to time, individually or collectively, the "First Lien Note") in
connection with the refinancing of certain real property and improvements
thereon and/or personal property, as applicable, situated in the City
___________, County of _______ and State of ___________ as more particularly
described on EXHIBIT A annexed hereto and made a part hereof (said real
property, and the improvements thereon, being collectively referred to as the
"PREMISES"); and
WHEREAS, the obligations of Owner to Borrower under the First Lien Note are
secured by (i) that certain Mortgage/Deed of Trust, Collateral Agreement and
Fixture Filing from Owner of even date herewith made by Owner as grantor in
favor of Borrower as beneficiary to be recorded in the real estate records of
________ County, ________________ (as amended, modified, renewed, restated,
replaced or extended from time to time, the "First Lien Mortgage") covering
Owner's interest in the Premises and/or (ii) that certain Collateral Agreement
of even date herewith made by Owner in favor of Borrower (as amended, modified,
renewed, replaced, restated or extended from time to time, the "First Lien
Collateral Agreement") covering Owner's interest in the personal property
described therein (the "Personal Property"), as applicable, (such First Lien
Note, First Lien Mortgage and First Lien Collateral Agreement, together with all
other documents and instruments evidencing, securing or pertaining to the
advances evidenced by the First Lien Note hereinafter collectively referred to
as the "First Lien Documents"); and
WHEREAS, Borrower has agreed to collaterally assign all of Borrower's
rights, title and interests in and to the First Lien Documents to Administrative
Agent, as security (i) for the Obligations of the Borrower under the Credit
Agreement and payment of those certain loans and advances (collectively, the
"Loan") made available to Borrower pursuant to the Credit Agreement, and (ii)
for the performance of the covenants and obligations of Borrower under and
pursuant to the terms and provisions of the Credit Agreement (the Credit
Agreement and all other documents and instruments evidencing, governing,
guaranteeing or pertaining to the Loan shall hereinafter be referred to
collectively as the "Loan Documents").
NOW, WHEREFORE, for an consideration of the sum of TEN AND NO/100 DOLLARS
($10.00) and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged and confessed, and for the mutual
and dependent covenants herein contained, and intending to be legally bound,
Borrower does hereby agree, represent, warrant and certify as follows:
1. ASSIGNMENT AND SECURITY INTEREST. Borrower has TRANSFERRED,
ASSIGNED, ENDORSED, PLEDGED, SOLD, GRANTED and CONVEYED and does by these
presents TRANSFER, ASSIGN, ENDORSE, PLEDGE, SELL, GRANT and CONVEY, unto
Administrative Agent a first priority security interest (the "Security
Interest") in and to the First Lien Documents, together with all attendant
liens, rights, title, assignments and interests (including security interests)
pertaining to or arising from the First Lien Documents, including, but not
limited to, the lien and security interest created in and evidenced by the First
Lien Mortgage securing the payment of the First Lien Note, and the security
interest created in and evidenced by the First Lien Collateral Agreement
securing the payment of the First Lien Note, together with all other documents,
instruments and certificates or other writings executed or delivered to Borrower
in connection with or pertaining to the transactions and indebtedness governed,
secured or covered by the First Lien Documents.
2. FIRST LIEN DOCUMENTS. Borrower hereby represents and warrants to
Administrative Agent that Borrower has not sold, transferred, pledged, endorsed,
conveyed, granted or assigned any of its interests in the First Lien Note or
other First Lien Documents, nor any of the liens, assignments, pledges or
security interests which secure the First Lien Note. Except as otherwise
provided hereinabove, the First Lien Mortgage, the First Lien Collateral
Agreement and the other First Lien Documents have not been modified, amended,
supplemented, released or terminated in any manner, and Borrower will not agree,
acquiesce or consent to, any agreement with Owner to amend, modify, supplement,
release, forgive, waive any provisions or conditions of, permit any prepayment
under, or terminate any of the First Lien Documents in any manner, without the
prior written consent of Administrative Agent, which consent may be withheld,
conditioned or granted in the sole discretion of Administrative Agent.
3. PRIORITY OF FIRST LIEN DOCUMENTS. Borrower hereby represents that
Borrower has determined that the First Lien Documents create a valid first
priority lien and security interest in and to the Premises, and a valid first
priority security interest in and to the Personal Property, and as of the date
hereof, there are no other liens, security interests or encumbrances affecting
the Premises or the Personal Property, including without limitation, any liens,
security interests or encumbrances which are subordinate, junior or inferior to
the First Lien Documents, except as may be expressly provided for or permitted
in the Loan Documents.
4. STATUS OF FIRST LIEN DOCUMENTS. Borrower hereby represents that
Borrower has determined that the First Lien Note, the First Lien Mortgage, the
First Lien Collateral Agreement, and the other First Lien Documents are in full
force and effect, and no uncured breaches or defaults or any defenses to the
First Lien Documents presently exist thereunder, and there exists as of this
date no event which has occurred or circumstances which currently exist which,
but for the passage of time, without cure and/or with the giving of notice,
would constitute a default or breach under the First Lien Documents.
5. BORROWER'S REPRESENTATIONS. Borrower has determined that as of the
date hereof there are no claims, damages, demands, actions, causes of action or
defenses to the enforcement of the First Lien Documents which Owner has or may
have against Borrower (or any subsequent holder of the First Lien Note), known
or unknown, now existing or that may hereafter arise, directly or indirectly, of
any kind or character, or liability (i) arising out of or in
relation to the indebtedness evidenced by the First Lien Note and the other
First Lien Documents or the Premises or the Personal Property under or pursuant
to common or statutory law, rules or regulations including, but not limited to,
state and/or federal law (including but not limited to all usury and
environmental laws); (ii) for or because of any and all acts, matters or things
done or omitted prior to the date hereof, which relate to any and all claims of
any kind or character relating to the First Lien Loan, the First Lien Documents,
the Premises and the Personal Property, or otherwise, growing out of or in any
way connected with or resulting from conduct, representations, acts, actions, or
omissions in connection with any breach of fiduciary duty, sole or concurrent
negligence, bad faith, malpractice, intentional or negligent infliction of
mental distress, tortious interference with contractual relations, tortious
interference with corporate or partnership governance or prospective business
advantage, breach of contract, deceptive trade practices, injury to any person
or entity of whatever nature, and libel or slander (without admitting or
implying that any such claim exists or has any validity); or (iii) arising out
of or attributable to any and all conduct, representations, acts, matters, or
things done, omitted, or supposed to be done by Borrower prior to the date
hereof.
6. CASUALTY/CONDEMNATION PROCEEDS. Borrower has determined that (i) no
portion of the Premises has suffered any casualty damage which has not been
fully repaired or restored prior to the date hereof, (ii) there are no
outstanding insurance proceeds due to Owner as reimbursements for any repairs or
restoration made to the Premises; and (iii) no portion of the Premises has been
taken or condemned by any governmental authority, nor is Borrower aware of any
fact which might lead to or allow any governmental authority to take or condemn
any portion of the Premises in the future.
7. PRINCIPAL. The outstanding principal balance of the First Lien Note
on the date hereof is $______________. All accrued interest, if any, has been
paid through the date hereof.
8. ESCROW ACCOUNTS. Borrower hereby represents and warrants that no
escrow accounts for tax and insurance escrow deposits are being held by Borrower
pursuant to the First Lien Documents.
9. DELIVERY OF DOCUMENTS. Concurrently herewith Borrower agrees to
endorse the First Lien Note to Administrative Agent as follows: "Pay to the
order of ______________________________ without recourse, representation or
warranty except for such warranties and representations as specified in this
Collateral Assignment. Borrower further agrees to deliver to Administrative
Agent the original of each of the First Lien Documents concurrently with the
execution hereof, together with such conveyance or other documents related
thereto as Administrative Agent shall require.
10. SECURITY INTEREST. [Intentionally Omitted].
11. BORROWER'S WARRANTIES, COVENANTS AND FURTHER AGREEMENT.
(a) TITLE. Except for the Security Interest, Borrower has full
and complete title to the First Lien Documents free from any lien, pledge,
assignment, security interest, encumbrance or claim, and Borrower will, during
the term of this Assignment, at Borrower's cost, keep the First Lien Documents
free from other liens, pledges, assignments, security
interests, encumbrances or claims, and defend and indemnify Administrative Agent
from any action, claim or demand which may affect the Security Interest or
Borrower's title or interest in and to the First Lien Documents. This Assignment
and any money, account, instrument or document which is, or shall be, included
in the First Lien Documents is, and shall be, genuine and legally enforceable
and free from any setoff, counterclaim or defense. No notice of bankruptcy or
insolvency of Owner has been received by Borrower.
(b) PERFECTION. No financing statement covering the First Lien
Documents or any part or proceeds thereof is on file in any public office and,
at Administrative Agent's request, Borrower will join in executing all financing
statements and other instruments deemed necessary by Administrative Agent to
perfect the Security Interest and will pay all costs thereof.
(c) ASSIGNMENT. Notwithstanding any other provision hereof,
Borrower will not sell, lease, assign, transfer, encumber, pledge, hypothecate
or otherwise dispose of all or part of the First Lien Documents or any of its
interests therein, except as herein provided or as provided or permitted in the
Credit Agreement. Administrative Agent may assign or transfer all or part of its
rights in, and obligations, if any, under the Loan, the First Lien Documents and
this Assignment.
(d) DELIVERY OF MONEY TO ADMINISTRATIVE AGENT. Except as
otherwise provided herein and as otherwise provided in the Loan Documents, upon
any Event of Default (as defined herein) or liquidation of the First Lien
Documents, Borrower will, upon receipt of any cash remittance in payment of or
for the First Lien Documents (exclusive of funds held pursuant to a custodial or
trust arrangement), immediately deposit all of same properly endorsed in a
special bank account maintained with Administrative Agent over which
Administrative Agent alone has power of withdrawal. The funds in said bank
account shall be held by Administrative Agent as security for the Loan.
Administrative Agent may, upon the occurrence of an Event of Default, apply all
or part of said collected funds against the Loan.
(e) NOTICE OF CHANGES. Borrower will immediately notify
Administrative Agent of any material adverse change of which Borrower has
knowledge occurring in or to the First Lien Documents, in the location thereof,
or in any fact or circumstance warranted or represented by Borrower to
Administrative Agent, or if any default or event of default occurs under any of
the First Lien Documents.
(f) BOOKS AND RECORDS. Upon request of Administrative Agent,
Borrower will furnish to Administrative Agent copies of all reports by Borrower,
Owner or otherwise in connection with the First Lien Documents, the Premises or
the Personal Property and all such other information and financial data which
Borrower has in its possession or is entitled to receive under the First Lien
Documents, as Administrative Agent may reasonably request with respect to the
operation, maintenance, use and operation of the Premises, the Personal Property
or the First Lien Documents.
12. RIGHTS OF ADMINISTRATIVE AGENT. Borrower hereby appoints
Administrative Agent as Borrower's attorney-in-fact, which appointment is
coupled with an interest and is thereby irrevocably, from and after the
occurrence of an Event of Default, to do any act which Borrower is obligated by
this Assignment to do or entitled to do under the First Lien
Documents, to do, to exercise all rights of Borrower in or under the First Lien
Documents and to do all things deemed necessary by Administrative Agent to
perfect the Security Interest and preserve, collect, enforce and protect the
First Lien Documents, all at Borrower's cost and without any obligation on
Administrative Agent so to act, including, but not limited to, transferring
title into the name of Administrative Agent or its nominee, or receipting for,
settling, or otherwise realizing upon the First Lien Documents. Administrative
Agent may, in its discretion, endorse as Borrower's agent, any instruments or
documents constituting or evidencing the First Lien Documents; contact Owner
directly to verify, receive or collect amounts due pursuant to the First Lien
Documents; take control of the First Lien Documents; and use cash proceeds of
the First Lien Documents, upon the occurrence of an Event of Default, to reduce
any part of the Loan. Administrative Agent shall not be liable for any act or
omission on the part of Administrative Agent, its officers, agents or employees,
except for gross negligence or willful misconduct, nor shall Administrative
Agent be responsible for depreciation in value of the First Lien Documents or
for preservation of rights against third parties. The foregoing rights and
powers of Administrative Agent may be exercised after the occurrence of an Event
of Default and shall be in addition to, and not a limitation upon, any rights,
remedies and powers of Administrative Agent given herein or by law, custom or
otherwise.
13. EVENTS OF DEFAULT. An "Event of Default" under this Assignment
shall have the same meaning as defined in the Credit Agreement; provided,
however, the parties acknowledge that the rights of the Borrower with respect to
the First Lien Documents are subject to the terms and conditions thereof and
that an Event of Default under this Assignment shall not be a default or event
of default under the First Lien Documents, unless such Event of Default
separately constitutes a default or event of default under the terms of the
First Lien Documents.
14. REMEDIES OF ADMINISTRATIVE AGENT UPON DEFAULT. When an Event of
Default occurs, and at any time thereafter, Administrative Agent may exercise
any and all of the rights and remedies provided by the Uniform Commercial Code
("Code"), as well as all other rights and remedies possessed by Administrative
Agent under this Assignment or otherwise at law or in equity. For purposes of
the notice requirements of the Code, Administrative Agent and Borrower agree
that notice given at least twenty (20) calendar days prior to the related action
hereunder is reasonable. Administrative Agent shall be entitled to immediate
possession of all books and records relating to the First Lien Documents and
shall have authority to enter upon any premises upon which said items may be
situated, and remove same therefrom. Expenses of the Administrative Agent of
holding, preparing for sale, selling, or the like, shall include, without
limitation, Administrative Agent's reasonable attorneys' fees and expenses.
Administrative Agent may use its discretion in applying the proceeds of any
disposition of the First Lien Documents. All rights and remedies of
Administrative Agent hereunder are cumulative and may be exercised singly or
concurrently. The exercise of any right or remedy will not be a waiver of any
other.
15. BORROWER CERTIFICATE. Notwithstanding anything contained herein to
the contrary, in the event Administrative Agent shall succeed to the rights and
interests of Borrower in and to the First Lien Documents, pursuant to a public
sale, private sale, judicial of closure or other proceeding brought by it or by,
any other manner, Borrower hereby agrees to execute and deliver to
Administrative Agent a certificate (the "Certificate"), which shall be
substantially the form of EXHIBIT B attached hereto and incorporated herein by
reference, evidencing such succession in interest by Administrative Agent to
Borrower in and to the First Lien Documents. In the event Borrower shall fail
execute the Certificate within ten (10) days after being requested to do so by
Administrative Agent, Borrower hereby agrees that Administrative Agent, in
addition to any other remedy available to Administrative Agent for Borrower's
default, shall have the right, but not the obligation, to execute, pursuant to
the power of attorney granted to Administrative Agent herein, the Certificate
without the consent or joinder of the Borrower in order to evidence
Administrative Agent's succession in interest by Administrative Agent to
Borrower in and to the First Lien Documents (including the First Lien
Documents).
16. INSTITUTION OF FORECLOSURE PROCEEDINGS OR EXERCISE OF CODE
REMEDIES. Borrower hereby agrees that Borrower will not, without the prior
written consent of Administrative Agent, which consent shall be in the sole
discretion of Administrative Agent, institute foreclosure proceedings on the
Premises, or exercise its rights under the Code with respect to the Personal
Property, following a default by Owner under the First Lien Documents. As a
condition to Administrative Agent's consent to the institution of any such
foreclosure proceedings or exercise of remedies by Borrower, Administrative
Agent shall have the right, at Administrative Agent's sole option, to require
Borrower, in connection with Administrative Agent's granting its consent to any
such foreclosure proceeding or exercise of remedies, to grant, convey and assign
to Administrative Agent a lien and security interest in and to the Premises and
the Personal Property, of at least the same dignity and priority as the First
Lien Mortgage and the First Lien Collateral Agreement, and Borrower agrees to
execute, procure deliver any and all such documents and instruments and take any
such actions as Administrative Agent may require, in its sole and absolute
discretion, to evidence such lien and security interest.
17. GENERAL.
(a) WAIVER BY ADMINISTRATIVE AGENT. No waiver by Administrative
Agent of any right hereunder or of any default by Borrower shall be binding upon
Administrative Agent unless in writing executed by Administrative Agent. Failure
or delay by Administrative Agent to exercise any right hereunder or waiver of
any default of Borrower shall not operate as a waiver of any other right, of
further exercise of such right, or of any further default.
(b) PARTIES BOUND. This Assignment shall be binding upon and
inure to the benefit of the parties hereto and their respective heirs,
executors, administrators, legal representatives, successors, receivers,
trustees and assigns where permitted by this Assignment. All representations and
warranties and agreements of Borrower are joint and several if Borrower is more
than one. This Assignment shall constitute a continuing agreement, applying to
all future as well as existing transactions, such future transactions being
contemplated by Borrower and Administrative Agent.
(c) GOVERNING LAW. This Assignment shall be construed in
accordance with the Code (the definitions of which apply herein) and other
applicable laws of the State of [STATE IN WHICH PREMISES LOCATED], and any
proceeding hereunder shall be in
______________ County, ______________________ [COUNTY IN WHICH PREMISES
LOCATED].
(d) NOTICE. All notices or other communications required or
permitted to be given hereunder shall be in writing and shall be considered as
properly given if (a) mailed by first class United States mail, postage prepaid,
registered or certified with return receipt requested, (b) by delivering same by
a commercial expedited delivery service to the intended addressee, or (c) by
prepaid telegram, telex or telecopy. Notice so mailed shall be effective upon
its deposit. Notice given in any other manner shall be effective upon delivery
to the office of the intended addressee. For purposes of notice, the addresses,
telexes and telecopier numbers of the parties shall be as set forth in the first
paragraph of this Assignment; provided, however, that either party shall have
the right to change its address, telex or telecopier number for notice hereunder
to any other location within the continental United States by the giving of
thirty (30) days' notice to the other party in the manner set forth hereinabove.
(e) MODIFICATION. This Assignment shall not be amended in any
way except by a written agreement signed by the parties hereto.
(f) SEVERABILITY. The unenforceability of any provision of this
Assignment shall not affect the enforceability or validity of any other
provision hereof.
(g) CONSTRUCTION. If there is any conflict between the
provisions hereof and the provisions of the Credit Agreement, the terms hereof
shall control. The captions here are for convenience of reference only and not
for definition or interpretation
(h) WAIVER OF BORROWER. Borrower hereby waives presentment,
demand, notice of dishonor, protest, and notice of protest, and all other
notices with respect to collection, or acceleration of maturity, of the First
Lien Documents and Loan, except as otherwise expressly provided herein or in the
Loan Documents.
18. TERMINATION. Upon the full and complete payment to Administrative
Agent of all sums owing under, and the performance of all covenants contained
in, the Credit Agreement and the other Loan Documents, Administrative Agent
shall endorse, without recourse, warranty or representation, the First Lien Note
to Borrower and shall execute and record all such documents as shall be
necessary to terminate and release this Assignment.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Borrower has executed this Assignment as of the day and year
first above written.
BORROWER:
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
STATE OF KENTUCKY )
) ACKNOWLEDGMENT
COUNTY OF JEFFERSON )
Enclosed and acknowledged before me on the ___ day of July, 2003 by
________________________ the duly authorized ________________ of WKT Restaurant
Corp., a Kentucky corporation, as Manager of Texas Roadhouse Holdings LLC, a
Kentucky limited liability company, Borrower in the foregoing instrument, who,
on behalf of said limited liability company, executed the foregoing Collateral
Assignment, and acknowledged the signing thereof to be his/her voluntary act and
deed and the voluntary act and deed of Borrower for the uses and purposes
therein mentioned, and who represented to me to be said person.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal, on the day and year last aforesaid.
WITNESS my hand and official stamp or seal this ___ day of July, 2003.
__________________________________________
Notary Public
__________________________________________
Print Name
My Commission Expires: __________
EXHIBIT A
LEGAL DESCRIPTION
EXHIBIT B
STATE OF _______________________
COUNTY OF _____________________
CERTIFICATE
This CERTIFICATE ("Certificate") is executed as of _____________________,
200_ by Texas Roadhouse Holdings LLC ("Borrower"), in favor of Bank of America,
N.A., a national banking association, in its capacity as administrative agent
for the benefit of certain parties pursuant to the Credit Agreement (as
hereinafter defined (in such capacity, "Administrative Agent").
WITNESSETH:
WHEREAS, Borrower, Administrative Agent, and certain other parties have
entered into that certain Credit Agreement (as amended, modified, renewed,
replaced, restated or extended from time to time, the "Credit Agreement") dated
_______________, 2003 relating to that certain loan ("Loan") make available by
certain lenders party to the Credit Agreement to Borrower in the amount of ONE
HUNDRED MILLION AND NO/100 DOLLARS ($100,000,000.00) secured, INTER ALIA, by
that certain Collateral Assignment of Note, Mortgage/Deed of Trust, Collateral
Agreement and Fixture Filing (as amended, modified, renewed, replaced, restated
or extended from time to time, the "Assignment"), dated of even date therewith,
recorded in Book ______, Page ______ of the official records of ______________
County, ____________; and
WHEREAS, Administrative Agent has required Borrower to execute this
Certificate pursuant to, and in fulfillment of, Borrower's obligations under the
Assignment.
NOW, THEREFORE, for and in consideration of the premises, and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged and confessed, Borrower hereby agrees, represents, certifies and
warrants, to and for the benefit of Administrative Agent, as follows:
1. SUCCESSION IN INTEREST. Borrower hereby warrants and certifies that
Administrative Agent has succeeded to the rights of Borrower under the First
Lien Documents (as defined in the Assignment), pursuant to a public sale,
private sale, judicial foreclosure or other proceeding brought by Administrative
Agent, or by means of any other disposition by Administrative Agent, and that
Administrative Agent now owns all right, title and interest in and to the First
Lien Documents. As evidenced by execution hereof Borrower no longer owns or
claims any right, title or interest in and to such First Lien Documents and
hereby waives and relinquishes any and all claims thereto and all rights, titles
and interests therein.
2. EFFECT UPON RECORDING. The recording hereof in the Deed Records of
________ County, _________ shall constitute PRIMA FACIE evidence of
Administrative Agent's succession to Borrower's rights, titles and interests in
and to the First Lien Documents and shall constitute constructive notice to all
parties of Administrative Agent's ownership of all rights, titles and interests
in and to the First Lien. Documents and the termination of Borrower's rights,
titles and interests therein.
IN WITNESS WHEREOF, Borrower has executed this Certificate as of the day
and year first above written.
BORROWER:
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
STATE OF KENTUCKY )
) ACKNOWLEDGMENT
COUNTY OF JEFFERSON )
Enclosed and acknowledged before me on the ___ day of ____, 200_ by
________________________ the duly authorized ________________ of WKT Restaurant
Corp., a Kentucky corporation, as Manager of Texas Roadhouse Holdings LLC, a
Kentucky limited liability company, Borrower in the foregoing instrument, who,
on behalf of said limited liability company, executed the foregoing Collateral
Assignment, and acknowledged the signing thereof to be his/her voluntary act and
deed and the voluntary act and deed of Borrower for the uses and purposes
therein mentioned, and who represented to me to be said person.
IN TESTIMONY WHEREOF, I have hereunto subscribed my name and affixed my
notarial seal, on the day and year last aforesaid.
WITNESS my hand and official stamp or seal this ___ day of ______, 200_.
_______________________________________________
Notary Public
_______________________________________________
Print Name
My Commission Expires: __________
EXHIBIT I
FORM OF NOTICE OF ACCOUNT DESIGNATION
Dated as of: _________
Bank of America, National Association
as Administrative Agent
000 Xxxxx XxXxxxx Xxxxxx
Mail Code: IL1-231-08-30
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxx Xxxxxxx
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you pursuant to the
Credit Agreement dated as of July 16, 2003 (as amended, restated, supplemented
or otherwise modified, the "CREDIT AGREEMENT"), by and among Texas Roadhouse
Holdings LLC, a Kentucky limited liability company (the "BORROWER"), the lenders
who are or may become party thereto, as Lenders (the "LENDERS"), and Bank of
America, National Association, as Administrative Agent (the "ADMINISTRATIVE
AGENT").
1. The Administrative Agent is hereby authorized to disburse all Loan
proceeds into the following account(s):
____________________________
ABA Routing Number: _________
Account Number: _____________
2. This authorization shall remain in effect until revoked or until a
subsequent Notice of Account Designation is provided to the Administrative
Agent.
3. Capitalized terms used herein and not defined herein shall have the
meanings assigned thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account
Designation as of the _____ day of __________, 200__.
TEXAS ROADHOUSE HOLDINGS LLC
By: WKT Restaurant Corp., its Manager
By:
---------------------------------------
Name:
----------------------------------
Title:
---------------------------------
