AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 10, 2006 among OUTBACK STEAKHOUSE, INC., The Banks Listed Herein, WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent, WACHOVIA CAPITAL MARKETS, LLC, as Sole Arranger, SUNTRUST BANK as Syndication...
Exhibit
4.86
$225,000,000.00
AMENDED
AND RESTATED
dated
as
of
March
10,
2006
among
OUTBACK
STEAKHOUSE, INC.,
The
Banks
Listed Herein,
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Agent,
WACHOVIA
CAPITAL MARKETS, LLC,
as
Sole
Arranger,
SUNTRUST
BANK
as
Syndication Agent,
and
BANK
OF
AMERICA, N.A.
and
XXXXX
FARGO BANK, NATIONAL ASSOCIATION
as
Co-Documentation Agents
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2018712
AMENDED
AND RESTATED
THIS
AMENDED AND RESTATED CREDIT AGREEMENT dated as of March 10, 2006 is entered
into
by and among OUTBACK STEAKHOUSE, INC., the BANKS listed on the signature pages
hereof, WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent, SUNTRUST BANK, as
Syndication Agent and BANK OF AMERICA, N.A. and XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as Co-Documentation Agents.
The
parties hereto agree as follows:
ARTICLE
I
DEFINITIONS
SECTION
1.01. Definitions.
The
terms as defined in this Section 1.01 shall, for all purposes of this
Agreement and any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the meanings set forth
herein:
“Adjusted
London Interbank Offered Rate” has the meaning set forth in
Section 2.06(c).
“Affiliate”
of any Person means (i) any other Person which directly, or indirectly through
one or more intermediaries, controls such Person, (ii) any other Person
which directly, or indirectly through one or more intermediaries, is Controlled
by or is under common Control with such Person, or (iii) any other Person
of which such Person owns, directly or indirectly, 20% or more of the common
stock or equivalent equity interests.
“Agent”
means Wachovia Bank, National Association, a national banking association
organized under the laws of the United States of America, in its capacity as
agent for the Banks hereunder, and its successors and permitted assigns in
such
capacity.
“Agent’s
Letter Agreement” means that certain letter agreement, dated as of
February 16, 2006, between the Borrower, Wachovia Capital Markets, LLC, as
Arranger and the Agent relating to the structure of the Loans, and certain
fees
from time to time payable by the Borrower to Wachovia Capital Markets, LLC,
as
Arranger and the Agent, together with all amendments and modifications
thereto.
“Agreement”
means this Amended and Restated Credit Agreement, together with all amendments
and supplements hereto.
“Applicable
Facility Fee Rate” has the meaning set forth in Section 2.07(a).
“Applicable
Margin” has the meaning set forth in Section 2.06(a).
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“Arranger”
means Wachovia Capital Markets, LLC, in its capacity as arranger under the
Agent’s Letter Agreement.
“Assignee”
has the meaning set forth in Section 9.07(c).
“Assignment
and Acceptance” means an Assignment and Acceptance executed in accordance with
Section 9.07(c) in the form attached hereto as Exhibit
J.
“Authority”
has the meaning set forth in Section 8.02.
“Bank”
means each bank listed on the signature pages hereof as having a Commitment,
and
its successors and assigns.
“Base
Rate” means for any Base Rate Loan for any day, the rate per annum equal to the
higher as of such day of (i) the Prime Rate, or (ii) one-half of one percent
above the Federal Funds Rate for such day. For purposes of determining the
Base
Rate for any day, changes in the Prime Rate and the Federal Funds Rate shall
be
effective on the date of each such change.
“Base
Rate Loan” means a Loan which bears or is to bear interest at a rate based upon
the Base Rate.
“Borrower”
means Outback Steakhouse, Inc., a Delaware corporation, and its successors
and
permitted assigns.
“Borrowing”
means a borrowing hereunder consisting of Loans made to the Borrower at the
same
time by, in the case of a Syndicated Borrowing, the Banks, or, in the case
of a
Money Market Borrowing, one or more of the Banks, in each case pursuant to
Article II. A Borrowing is a “Syndicated Borrowing” if such Loans are
Syndicated Loans or a “Money Market Borrowing” if such Loans are Money Market
Loans. A Borrowing is a “Base Rate Borrowing” if such Loans are Base Rate Loans
or a “Euro-Dollar Borrowing” if such Loans are Euro-Dollar Loans.
“Capital
Stock” means any nonredeemable capital stock of the Borrower or any Consolidated
Subsidiary (to the extent issued to a Person other than the Borrower), whether
common or preferred.
“CERCLA”
means the Comprehensive Environmental Response Compensation and Liability Act,
42 U.S.C. §9601 et seq. and its implementing regulations and
amendments.
“CERCLIS”
means the Comprehensive Environmental Response Compensation and Liability
Information System established pursuant to CERCLA.
“Change
of Law” shall have the meaning set forth in Section 8.02.
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2
“Closing
Certificate” has the meaning set forth in Section 3.01(e).
“Closing
Date” means March 10, 2006.
“Code”
means the Internal Revenue Code of 1986, as amended, or any successor Federal
tax code. Any reference to any provision of the Code shall also be deemed to
be
a reference to any successor provision or provisions thereof.
“Commitment”
means, with respect to each Bank, (i) the amount set forth opposite the name
of
such Bank on the signature pages hereof, or (ii) as to any Bank which enters
into an Assignment and Acceptance (whether as transferor Bank or as Assignee
thereunder), the amount of such Bank’s Commitment after giving effect to such
Assignment and Acceptance, in each case as such amount may be reduced from
time
to time pursuant to Sections 2.08 and 2.09.
“Company
Owned Restaurants” means each restaurant that satisfies the following
requirements: (1) the Borrower or a Consolidated Subsidiary has a direct or
indirect ownership interest in the entity that owns such restaurant; (2) the
entity that owns and operates such restaurant is organized as a partnership
or
limited liability company in which the Borrower or a Consolidated Subsidiary
is
a general partner or managing member; or (3) the Borrower or a Consolidated
Subsidiary Controls the entity that owns and operates such
restaurant.
“Compliance
Certificate” has the meaning set forth in Section 5.01(c).
“Consolidated
Interest Expense” for any period means interest, whether expensed or
capitalized, in respect of Debt of the Borrower or any of its Consolidated
Subsidiaries outstanding during such period.
“Consolidated
Net Income” means, for any period, the Net Income of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis, but excluding
(i) extraordinary items and (ii) any equity interests of the Borrower
or any Subsidiary in the unremitted earnings of any Person that is not a
Subsidiary.
“Consolidated
Net Worth” means, at any time, Stockholders’ Equity, as set forth or reflected
on the most recent consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries, prepared in accordance with GAAP.
“Consolidated
Subsidiary” means at any date any Subsidiary or other entity the accounts of
which, in accordance with GAAP, would be consolidated with those of the Borrower
in its consolidated financial statements as of such date.
“Consolidated
Total Assets” means, at any time, the total assets of the Borrower and its
Consolidated Subsidiaries, determined on a consolidated basis, as set forth
or
reflected on the most recent consolidated balance sheet of the Borrower and
its
Consolidated Subsidiaries, prepared in accordance with GAAP.
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“Consolidated
Total Debt” means as of the last day of each Fiscal Quarter the sum of:
(a) the Debt of the Borrower and its Consolidated Subsidiaries, determined
on a consolidated basis as of such date; and (b) the product of:
(i) seven, and (ii) the sum of all payment obligations (excluding
Contingent Rents and Minority Rents) under all operating leases and rental
agreements of the Borrower and its Consolidated Subsidiaries, determined on
a
consolidated basis for the Fiscal Quarter then ended and the immediately
preceding three Fiscal Quarters in accordance with GAAP.
“Contingent
Rents” means for any period, the aggregate payments of contingent rentals under
operating leases and rental agreements, based on a percentage of gross revenues
as defined by the terms of the applicable lease or rental agreement, made by
the
Borrower and its Consolidated Subsidiaries, determined on a consolidated basis
in accordance with GAAP.
“Control”
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
“Controlled
Group” means all members of a controlled group of corporations and all trades or
businesses (whether or not incorporated) under common control which, together
with the Borrower, are treated as a single employer under Section 414 of the
Code.
“Debt”
of
any Person means at any date, without duplication, (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person evidenced by
bonds, debentures, notes or other similar instruments, (iii) all obligations
of
such Person to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (iv) all
obligations of such Person as lessee under capital leases, (v) all
obligations of such Person to reimburse any bank or other Person in respect
of
amounts payable under a banker’s acceptance, (vi) all Redeemable Preferred Stock
of such Person (in the event such Person is a corporation), (vii) all
obligations (absolute or contingent) of such Person to reimburse any bank or
other Person in respect of amounts paid under a letter of credit or similar
instrument, (viii) all Debt of others secured by a Lien on any asset of such
Person, whether or not such Debt is assumed by such Person, (ix) all Debt of
others Guaranteed by such Person, (x) Synthetic Lease Indebtedness, (xi) all
indebtedness, liabilities and obligations of such Person in connection with
or
arising from asset securitizations, including, without limitation,
Securitization Facility Attributed Debt, and (xii) all obligations of such
Person with respect to interest rate protection agreements, foreign currency
exchange agreements or other hedging agreements (valued as the termination
value
thereof computed in accordance with a method approved by the International
Swap
Dealers Association and agreed to by such Person in the applicable hedging
agreement, if any).
“Default”
means any condition or event which constitutes an Event of Default or which
with
the giving of notice or lapse of time or both would, unless cured or waived
in
writing, become an Event of Default.
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“Default
Rate” means, with respect to any Syndicated Loan, Money Market Loan or Swing
Line Loan, on any day, the sum of 2% plus the then highest interest rate
(including the Applicable Margin) which may be applicable to any Syndicated
Loan, Money Market Loan or Swing Line Loan hereunder (irrespective of whether
any such type of Loans are actually outstanding hereunder).
“Depreciation
and Amortization” means for any period the sum of all depreciation and
amortization expenses of the Borrower and its Consolidated Subsidiaries for
such
period, as determined in accordance with GAAP.
“Development
Joint Venture” means an entity that satisfies the following requirements: (1)
the Borrower or a Consolidated Subsidiary has a direct or indirect ownership
interest in such entity; (2) the Borrower or a Consolidated Subsidiary Controls
such entity; and (3) neither the Borrower nor any Consolidated Subsidiary,
individually or with another Consolidated Subsidiary or the Borrower, has agreed
to be responsible for more than 50% of the obligations, liabilities or costs
of
such entity.
“Dollars”
or “$” means dollars in lawful currency of the United States of
America.
“Domestic
Business Day” means any day except a Saturday, Sunday or other day on which
commercial banks in North Carolina are authorized or required by law to close.
“Domestic
Subsidiary” means any Subsidiary which is organized under the laws of any state
or territory of the United States of America.
“EBITDAR”
means for any period the sum of: (a) Consolidated Net Income, plus (b) the
amount deducted in determining Consolidated Net Income for such period for
(i)
taxes on income, (ii) Consolidated Interest Expense, (iii) Depreciation and
Amortization, (iv) the sum of all payment obligations (excluding Contingent
Rents) under all operating leases and rental agreements, all determined with
respect to the Borrower and its Consolidated Subsidiaries on a consolidated
basis for such period and in accordance with GAAP and (v) expenses related
to
Share Based Payments as required by FASB Statement No. 123 (revised 2004) and
expenses related to partner equity deferred compensation programs, to the extent
the expenses related to Share Based Payments and partner equity deferred
compensation programs did not arise from payments in cash or other property;
provided, the term “other property” shall not include stock, restricted stock,
or options to purchase stock. In determining EBITDAR for any period, (i) any
Consolidated Subsidiary acquired during such period by the Borrower or any
other
Consolidated Subsidiary shall be included on a pro forma, historical basis
as if
it had been a Consolidated Subsidiary during such entire period, (ii) any
amounts which would be included in a determination of EBITDAR for such period
with respect to assets acquired during such period by the Borrower or any
Consolidated Subsidiary shall be included in the determination of EBITDAR for
such period and the amount thereof shall be calculated on a pro forma,
historical basis as if such assets had been acquired by the Borrower or such
Consolidated Subsidiary prior to the first day of such period, (iii) any
Consolidated Subsidiary sold during such period by the Borrower or any other
Consolidated Subsidiary shall be excluded as if it had not been a
Consolidated
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5
Subsidiary
at any time during such period, and (iv) any amounts which would be otherwise
included in a determination of EBITDAR for such period with respect to assets
sold or otherwise disposed of during such period by the Borrower or any
Consolidated Subsidiary shall be excluded in the determination of EBITDAR
for
such period and the amount excluded shall be calculated as if such assets
had
been sold or otherwise disposed of by the Borrower or such Consolidated
Subsidiary prior to the first day of such period.
“Environmental
Authority” means any foreign, federal, state, local or regional government that
exercises any form of jurisdiction or authority under any Environmental
Requirement.
“Environmental
Authorizations” means all licenses, permits, orders, approvals, notices,
registrations or other legal prerequisites for conducting the business of the
Borrower or any Subsidiary required by any Environmental
Requirement.
“Environmental
Judgments and Orders” means all judgments, decrees or orders arising from or in
any way associated with any Environmental Requirements, whether or not entered
upon consent or written agreements with an Environmental Authority or other
entity arising from or in any way associated with any Environmental Requirement,
whether or not incorporated in a judgment, decree or order.
“Environmental
Laws” means any and all federal, state, local and foreign statutes, laws,
regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges or releases
of pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes into the environment,
including, without limitation, ambient air, surface water, groundwater or land,
or otherwise relating to the manufacture, processing, distribution, use,
treatment, storage, disposal, transport or handling of pollutants, contaminants,
petroleum or petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes or the clean-up or other remediation thereof.
“Environmental
Liabilities” means any liabilities, whether accrued, contingent or otherwise,
arising from or in any way associated with any Environmental
Requirements.
“Environmental
Notices” means notice from any Environmental Authority or by any other person or
entity, of possible or alleged noncompliance with or liability under any
Environmental Requirement, including without limitation any complaints,
citations, demands or requests from any Environmental Authority or from any
other person or entity for correction of any violation of any Environmental
Requirement or any investigations concerning any violation of any Environmental
Requirement.
“Environmental
Proceedings” means any judicial or administrative proceedings arising from or in
any way associated with any Environmental Requirement.
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“Environmental
Releases” means releases as defined in CERCLA or under any applicable state or
local environmental law or regulation.
“Environmental
Requirements” means any legal requirement relating to health, safety or the
environment and applicable to the Borrower, any Subsidiary or the Properties,
including but not limited to any such requirement under CERCLA or similar state
legislation and all federal, state and local laws, ordinances, regulations,
orders, writs, decrees and common law.
“ERISA”
means the Employee Retirement Income Security Act of 1974, as amended from
time
to time, or any successor law and the regulations promulgated and rulings issued
thereunder. Any reference to any provision of ERISA shall also be deemed to
be a
reference to any successor provision or provisions thereof.
“Euro-Dollar
Business Day” means any Domestic Business Day on which dealings in Dollar
deposits are carried out in the London interbank market.
“Euro-Dollar
Loan” means a Loan which bears or is to bear interest at a rate based upon the
London Interbank Offered Rate.
“Euro-Dollar
Reserve Percentage” has the meaning set forth in Section 2.06.
“Event
of
Default” has the meaning set forth in Section 6.01.
“Existing
Credit Agreement” means that certain Credit Agreement dated as of April 27, 2004
by and between the Borrower, the lenders identified therein, Wachovia Bank,
National Association, as Agent, Wachovia Capital Markets, LLC, as Sole Arranger,
SunTrust Bank, as Syndication Agent, and SouthTrust Bank, as Documentation
Agent.
“Facility
Fee Determination Date” has the meaning set forth in Section
2.07(a).
“Facility
Fee Payment Date” means each March 31, June 30, September 30 and December
31.
“Federal
Funds Rate” means, for any day, the rate per annum (rounded upward, if
necessary, to the next higher 1/100th of 1%) equal to the weighted average
of
the rates on overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as published
by
the Federal Reserve Bank of New York on the Domestic Business Day next
succeeding such day, provided that (i) if the day for which such rate is to
be
determined is not a Domestic Business Day, the Federal Funds Rate for such
day
shall be such rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day, and (ii)
if
such rate is not so published for any day, the Federal Funds Rate for such
day
shall be the average rate charged to Wachovia on such day on such transactions
as determined by the Agent.
“Fiscal
Quarter” means any fiscal quarter of the Borrower.
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“Fiscal
Year” means any fiscal year of the Borrower.
“Foreign
Subsidiary” means any Wholly Owned Subsidiary which is not a Domestic
Subsidiary.
“GAAP”
means generally accepted accounting principles applied on a basis consistent
with those which, in accordance with Section 1.02, are to be used in making
the
calculations for purposes of determining compliance with the terms of this
Agreement.
“Granting
Lender” has the meaning set forth in Section 2.03(g).
“Guarantee”
by any Person means any obligation, contingent or otherwise, of such Person
directly or indirectly guaranteeing any Debt or other obligation of any other
Person and, without limiting the generality of the foregoing, any obligation,
direct or indirect, contingent or otherwise, of such Person (i) to secure,
purchase or pay (or advance or supply funds for the purchase or payment of)
such
Debt or other obligation (whether arising by virtue of partnership arrangements,
by agreement to keep-well, to purchase assets, goods, securities or services,
to
provide collateral security, to take-or-pay, or to maintain financial statement
conditions or otherwise) or (ii) entered into for the purpose of assuring
in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole
or
in part), provided
that the
term Guarantee shall not include endorsements for collection or deposit in
the
ordinary course of business. The term “Guarantee” used as a verb has a
corresponding meaning.
“Guarantors”
shall mean collectively: (a) the Initial Guarantors; and (b) all Material
Domestic Subsidiaries acquired, formed or otherwise in existence after the
Closing Date.
“Guaranty”
means the Amended and Restated Guaranty Agreement executed by each of the
Guarantors substantially in the form of Exhibit
H
hereto,
either as originally executed or as it may be from time to time supplemented,
modified, amended, renewed, extended or restated from time to time.
“Hazardous
Materials” includes, without limitation, (a) solid or hazardous waste, as
defined in the Resource Conservation and Recovery Act of 1980, 42 U.S.C. §6901
et seq. and its implementing regulations and amendments, or in any applicable
state or local law or regulation, (b) any “hazardous substance”, “pollutant” or
“contaminant”, as defined in CERCLA, or in any applicable state or local law or
regulation, (c) gasoline, or any other petroleum product or by-product,
including crude oil or any fraction thereof, (d) toxic substances, as defined
in
the Toxic Substances Control Act of 1976, or in any applicable state or local
law or regulation and (e) insecticides, fungicides, or rodenticides, as defined
in the Federal Insecticide, Fungicide, and Rodenticide Act of 1975, or in any
applicable state or local law or regulation, as each such act, statute or
regulation may be amended from time to time.
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“Indemnity
Subrogation and Contribution Agreement” means the Amended and Restated
Indemnity, Subrogation and Contribution Agreement to be entered into among
the
Borrower, the Guarantors the Pledgor Subsidiaries and the Agent, substantially
in the form attached hereto as Exhibit
G,
as
modified, amended, supplemented or restated from time to time.
“Initial
Guarantors” shall mean Outback Steakhouse of Florida, Inc.; Carrabba’s Italian
Grill, Inc.; Outback Steakhouse International, Inc.; OS Capital, Inc.; OS
Pacific, Inc.; OS Prime, Inc.; OS Tropical, Inc.; and Bonefish Grill, Inc.
“Interest
Period” means: (1) with respect to each Euro-Dollar Borrowing, the period
commencing on the date of such Borrowing and ending on the numerically
corresponding day in the first, second, third or sixth month thereafter, as
the
Borrower may elect in the applicable Notice of Borrowing; provided
that:
(a) any
Interest Period (subject to clause (c) below) which would otherwise end on
a day
which is not a Euro-Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Euro-Dollar Business Day;
(b) any
Interest Period which begins on the last Euro-Dollar Business Day of a calendar
month (or on a day for which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall, subject to clause (c) below,
end on the last Euro-Dollar Business Day of the appropriate subsequent calendar
month; and
(c) no
Interest Period may be selected which begins before the Termination Date and
would otherwise end after the Termination Date.
(2)
with
respect to each Swing Line Borrowing, the period commencing on the date of
such
Borrowing and ending on the earlier of: (a) the last day of the calendar month
in which such Borrowing is made; or (b) the Termination Date.
(3)
with
respect to each Base Rate Borrowing, the period commencing on the date of such
Borrowing and ending 30 days thereafter; provided
that:
(a) any
Interest Period (subject to clause (b) below) which would otherwise end on
a day
which is not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) no
Interest Period may be selected which begins before the Termination Date and
would otherwise end after the Termination Date.
(4)
with
respect to each Money Market Borrowing, the period commencing on the date of
such Borrowing and ending 7 to 180 days thereafter, as the Borrower may indicate
in the applicable Money Market Quote Request; provided
that:
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(a) any
Interest Period (subject to clause (b) below) which would otherwise end on
a day
which is not a Domestic Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) no
Interest Period may be selected which begins before the Termination Date and
would otherwise end after the Termination Date.
“Investment”
means any investment in any Person, whether by means of purchase or acquisition
of obligations or securities of such Person, capital contribution to such
Person, loan or advance to such Person, making of a time deposit with such
Person, Guarantee or assumption of any obligation of such Person or
otherwise.
“Joint
Ventures” has the meaning set forth in Section 4.21.
“Lending
Office” means, as to each Bank, its office located at its address set forth on
the signature pages hereof (or identified on the signature pages hereof as
its
Lending Office) or such other office as such Bank may hereafter designate as
its
Lending Office by notice to the Borrower and the Agent.
“Lien”
means, with respect to any asset, any mortgage, deed to secure debt, deed of
trust, lien, pledge, charge, security interest, security title, preferential
arrangement which has the practical effect of constituting a security interest
or encumbrance, servitude or encumbrance of any kind in respect of such asset
to
secure or assure payment of a Debt or a Guarantee, whether by consensual
agreement or by operation of statute or other law, or by any agreement,
contingent or otherwise, to provide any of the foregoing. For the purposes
of
this Agreement, the Borrower or any Subsidiary shall be deemed to own subject
to
a Lien any asset which it has acquired or holds subject to the interest of
a
vendor or lessor under any conditional sale agreement, capital lease or other
title retention agreement relating to such asset.
“Loan”
means a Syndicated Loan, Swing Line Loan or a Money Market Loan and “Loans”
means Syndicated Loans, Swing Line Loans or Money Market Loans, or any or all
of
them, as the context shall require.
“Loan
Documents” means this Agreement, the Notes, the Guaranty, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes, the Guaranty or the Loans, as such documents and instruments may be
amended or supplemented from time to time.
“Loan
Parties” means collectively the Borrower and each Subsidiary of the Borrower
that is now or hereafter a party to any of the Loan Documents.
“London
Interbank Offered Rate” has the meaning set forth in Section 2.06.
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“Margin
Stock” means “margin stock” as defined in Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System, as in effect from time to time,
together with all official rulings and interpretations issued
thereunder.
“Material
Adverse Effect” means, with respect to any event, act, condition or occurrence
of whatever nature (including any adverse determination in any litigation,
arbitration, or governmental investigation or proceeding), whether singly or
in
conjunction with any other event or events, act or acts, condition or
conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower and
its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of
the
Agent or the Banks under the Loan Documents, or the ability of the Borrower
to
perform its obligations under the Loan Documents to which it is a party, as
applicable, or (c) the legality, validity or enforceability of any Loan
Document.
“Material
Domestic Subsidiaries” means each Domestic Subsidiary with total assets of
$40,000,000 or more; provided that in the event that, at any time, the total
assets of all Domestic Subsidiaries which are not then Guarantors (the
“Non-Guarantor Domestic Subsidiaries”), in the aggregate, is equal to or greater
than $120,000,000, the Borrower shall so notify the Agent and promptly
thereafter (but in any event within 30 days after the date thereof) shall cause
any such Non-Guarantor Domestic Subsidiary which has total assets equal to
or
greater than $24,000,000 to take the actions and deliver the documents required
by Section 5.22 and thereafter such Subsidiaries shall be
“Guarantors.”
“Minority
Rents” means for any period, the aggregate payment obligations under operating
leases and rental agreements of the Borrower and its Consolidated Subsidiaries
allocable to minority partners, determined in accordance with GAAP.
“Money
Market Loan” means a Loan which bears or is to bear interest at a Money Market
Rate.
“Money
Market Notes” means the amended and restated promissory notes of the Borrower,
substantially in the form of Exhibit
B
hereto,
evidencing the obligation of the Borrower to repay the Money Market Loans,
together with all amendments, consolidations, modifications, renewals and
supplements thereto and “Money Market Note” means any one of such Money Market
Notes.
“Money
Market Quote” means an offer by a Bank to make a Money Market Loan in accordance
with Section 2.03(c).
“Money
Market Quote Request” has the meaning set forth in Section 2.03(b).
“Money
Market Rate” has the meaning set forth in Section 2.03(c)(ii)(C).
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“Multiemployer
Plan” shall have the meaning set forth in Section 4001(a)(3) of
ERISA.
“Net
Income” means, as applied to any Person for any period, the aggregate amount of
net income of such Person, after taxes, for such period, as determined in
accordance with GAAP.
“Non-Guarantor
Domestic Subsidiaries” has the meaning set forth in the definition of “Material
Domestic Subsidiaries” contained in Section 1.01.
“Note”
means a Syndicated Note, Swing Line Note or a Money Market Note and “Notes”
means Syndicated Notes, Swing Line Notes or Money Market Notes, or any or all
of
them, as the context shall require.
“Notice
of Borrowing” has the meaning set forth in Section 2.02.
“Obligations”
means the collective reference to all indebtedness, obligations and liabilities
to the Banks, the Swing Line Lender or the Agent existing on the date of this
Agreement or arising thereafter, direct or indirect, joint or several, absolute
or contingent, matured or unmatured, liquidated or unliquidated, secured or
unsecured, arising by contract, operation of law or otherwise, of the Loan
Parties under this Agreement or any other Loan Document.
“OFAC”
means the United States Department of the Treasury’s Office of Foreign Assets
Control or any successor thereto.
“Officer’s
Certificate” has the meaning set forth in Section 3.01(f).
“Participant”
has the meaning set forth in Section 9.07(b).
“Participating
Subsidiary” means any Subsidiary of the Borrower that is a participant in a
Permitted Securitization.
“PBGC”
means the Pension Benefit Guaranty Corporation or any entity succeeding to
any
or all of its functions under ERISA.
“Permitted
Acquisition” means the acquisition of: (I) shares of capital stock or other
equity interests of any Person by the Borrower or any Subsidiary of the Borrower
if: (A) immediately after giving effect to such acquisition (i) such Person
is a
Consolidated Subsidiary; (ii) the Borrower Controls such Person directly or
indirectly through a Subsidiary; and (iii) no Default shall have occurred and
be
continuing; (B) the line or lines of business engaged in by such Person are
similar to the lines of business engaged in by the Borrower and its Subsidiaries
on the Closing Date; (C) such acquisition is made on a negotiated basis with
the
approval of the Board of Directors of the Person to be acquired; and (D) such
acquisition is permitted under Section 5.23; and (II) all or substantially
all
of the assets of a Person if: (A)
the
assets acquired
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by
the
Borrower or such Subsidiary of the Borrower, shall be used in a line of business
similar to the lines of business engaged in by the Borrower and its Subsidiaries
on the Closing Date; (B) no Default shall have occurred and be continuing;
and
(C) such acquisition is permitted under Section 5.23.
“Permitted
Consolidations, Mergers and Sales of Assets” means (a) the Borrower may
merge with another Person if (i) such Person was organized under the laws of
the
United States of America or one of its states, (ii) the Borrower is the
corporation surviving such merger and (iii) immediately after giving effect
to
such merger, no Default shall have occurred and be continuing,
(b) Subsidiaries of the Borrower may merge with one another, and (c) the
limitation on the sale, lease or other transfer of assets and on the
discontinuation or elimination of a business line or segment set forth in
Section 5.11 shall not prohibit, during any Fiscal Quarter, a transfer of assets
or the discontinuance or elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the aggregate assets
to be so transferred or utilized in a business line or segment to be so
discontinued, when combined with all other assets transferred, and all other
assets utilized in all other business lines or segments discontinued, during
such Fiscal Quarter and the immediately preceding three Fiscal Quarters,
constituted more than 15% of Consolidated Total Assets at the end of the
immediately preceding Fiscal Year.
“Permitted
Liens” means:
(a) Liens
existing on the date of this Agreement securing Debt outstanding on the date
of
this Agreement in an aggregate principal amount not exceeding
$5,000,000.00;
(b) any
Lien
existing on any asset of any corporation at the time such corporation becomes
a
Consolidated Subsidiary and not created in contemplation of such
event;
(c) any
Lien
on any asset securing Debt incurred or assumed for the purpose of financing
all
or any part of the cost of acquiring or constructing such asset, provided
that
such Lien attaches to such asset concurrently with or within 18 months after
the
acquisition or completion of construction thereof;
(d) any
Lien
on any asset of any corporation existing at the time such corporation is merged
or consolidated with or into the Borrower or a Consolidated Subsidiary and
not
created in contemplation of such event;
(e) any
Lien
existing on any asset prior to the acquisition thereof by the Borrower or a
Consolidated Subsidiary and not created in contemplation of such
acquisition;
(f) Liens
securing Debt owing by any Subsidiary to the Borrower;
(g) any
Lien
arising out of the refinancing, extension, renewal or refunding of any Debt
secured by any Lien permitted by any of the foregoing clauses of this
definition, provided
that (i)
such Debt is not secured by any additional assets, and (ii) the amount of such
Debt secured by any such Lien is not increased;
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(h) Liens
incidental to the conduct of its business or the ownership of its assets which
(i) do not secure Debt and (ii) do not in the aggregate materially detract
from
the value of its assets or materially impair the use thereof in the operation
of
its business;
(i) Liens
on
Securitization Assets sold or transferred pursuant to a Permitted
Securitization;
(j) any
Lien
on Margin Stock; and
(k) Liens
not
otherwise permitted by the foregoing clauses of this definition securing Debt
(other than indebtedness represented by the Notes) in an aggregate principal
amount at any time outstanding not to exceed 10% of Consolidated Net Worth.
“Permitted
Loans and Advances” shall mean (i) loans or advances to employees not
exceeding Two Million and no/100 Dollars ($2,000,000.00) in the aggregate
outstanding made in the ordinary course of business; (ii) deposits required
by government agencies or public utilities; (iii) loans or advances to
Consolidated Subsidiaries made in the ordinary course of business; (iv) loans
or
advances to Company Owned Restaurants made in the ordinary course of business;
(v) loans or advances to Development Joint Ventures for purposes of funding
the
obligations of the Borrower or a Consolidated Subsidiary to such Development
Joint Ventures, made in the ordinary course of business; and (vi) loans or
advances made in the ordinary course of business, provided that the aggregate
outstanding principal amount of the loans and advances made under this item
(vi), together with certain other Investments specified in Section 5.07(vi)
shall not exceed, in the aggregate, ten percent (10%) of Consolidated Net Worth;
provided that after giving effect to the making of any loans, advances or
deposits permitted by clause (i), (ii), (iii), (iv), (v) or (vi) of this
definition, no Default shall have occurred and be continuing.
“Permitted
Securitization” means any financing program providing for the sale or transfer
of Securitization Assets by the Borrower or its Participating Subsidiaries,
in
transactions purporting to be sales (and treated as sales for GAAP purposes):
(1) to one or more limited purpose financing companies, special purpose entities
and/or other financial institutions; (2) in each case, on a nonrecourse basis
as
to the Borrower and the Participating Subsidiaries subject to Standard
Securitization Undertakings; and (3) in each case, for the fair market value
of
the Securitization Assets sold or transferred, including cash in an amount
at
least equal to 75% of the fair market value thereof, as determined in accordance
with GAAP (for purposes of this definition a Purchase Money Note shall be deemed
to be cash).
“Person”
means an individual, a corporation, a limited liability company, a partnership
(including without limitation, a joint venture), an unincorporated association,
a trust or any other entity or organization, including, but not limited to,
a
government or political subdivision or an agency or instrumentality thereof.
“Plan”
means at any time an employee pension benefit plan which is covered by Title
IV
of ERISA or subject to the minimum funding standards under Section 412 of the
Code
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and
is
either (i) maintained by a member of the Controlled Group for employees of
any
member of the Controlled Group or (ii) maintained pursuant to a collective
bargaining agreement or any other arrangement under which more than one employer
makes contributions and to which a member of the Controlled Group is then
making
or accruing an obligation to make contributions or has within the preceding
5
plan years made contributions.
“Prime
Rate” refers to that interest rate so denominated and set by Wachovia from time
to time as an interest rate basis for borrowings. The Prime Rate is but one
of
several interest rate bases used by Wachovia. Wachovia lends at interest rates
above and below the Prime Rate.
“Priority
Debt” means (a) any Debt of the Borrower secured by any Lien permitted pursuant
to item (k) in the definition of Permitted Liens, and (b) any Debt of any
Subsidiary that is not a Guarantor; provided,
however,
that
Priority Debt shall not include (i) any Debt owed by any Subsidiary to the
Borrower or any Wholly Owned Subsidiary, and (ii) any Debt incurred to refinance
any Debt of any Subsidiary outstanding on the Closing Date to the extent the
amount of Debt so incurred is not in excess of the amount of Debt
refinanced.
“Properties”
means all real property owned, leased or otherwise used or occupied by the
Borrower or any Subsidiary, wherever located.
“Purchase
Money Note” means a promissory note of a Receivables Subsidiary evidencing a
line of credit, which may be irrevocable, from the Borrower or any Subsidiary
of
the Borrower in connection with a Permitted Securitization to a Receivables
Subsidiary which note shall be repaid from cash available to the Receivables
Subsidiary, other than amounts required to be established as reserves pursuant
to agreements, amounts paid to investors in respect of interest, principal
and
other amounts owing to such investors and amounts paid in connection with the
purchase of newly generated receivables.
“Quotation
Date” has the meaning set forth in Section 2.03(b).
“Rate
Determination Date” has the meaning set forth in Section 2.06(a).
“Receivables
Subsidiary” means a special purpose, bankruptcy remote Wholly Owned Subsidiary
of the Borrower which may be formed for the sole and exclusive purpose of
engaging in activities in connection with the purchase, sale and financing
of
Securitization Assets in connection with and pursuant to a Permitted
Securitization.
“Redeemable
Preferred Stock” of any Person means any preferred stock issued by such Person
which is at any time prior to the Termination Date either (i) mandatorily
redeemable (by sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
“Required
Banks” means at any time Banks having at least 51% of the aggregate amount of
the Commitments or, if the Commitments are no longer in effect, Banks holding
at
least 51% of the aggregate outstanding principal amount of the Notes; provided
that if such
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requirement
is satisfied by no more than two Banks, the term “Required Banks” shall mean
Banks having at least 66 2/3% of the aggregate amount of the Commitments
or, if
the Commitments are no longer in effect, Banks holding at least 66 2/3% of
the
aggregate outstanding principal amount of the Notes.
“Sanctioned
Country” means a country subject to the sanctions program identified on the list
maintained by OFAC and available at
xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxxxxxxx/xxxx/xxxxxxxx or as otherwise published
from time to time.
“Sanctioned
Person” means (i) a Person named on the list of Specially Designated Nationals
or Blocked Persons maintained by OFAC available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx
or as
otherwise published from time to time, or (ii) (A) an agency of the government
of a Sanctioned Country, (B) an organization controlled by a Sanctioned Country,
or (C) a Person resident in a Sanctioned Country, to the extent subject to
a
sanctions program administered by OFAC.
“Securitization
Assets” means all accounts receivable (whether now existing or arising in the
future) and other assets of the Borrower or any of its Participating
Subsidiaries which are sold or transferred pursuant to a Permitted
Securitization, and any assets related thereto, including without limitation
(i)
all collateral given by any of the foregoing, (ii) all contracts and all
guarantees (but not by the Borrower or any of its Subsidiaries) or other
obligations directly related to any of the foregoing, (iii) other related assets
including those set forth in the Securitization Documents, and (iv) proceeds
of
all of the foregoing.
“Securitization
Documents” shall mean all documentation relating to any Permitted
Securitization.
“Securitization
Facility Attributed Debt” at any time shall mean, without duplication, the
aggregate net outstanding amount theretofore paid to the Receivables Subsidiary,
the Borrower or Participating Subsidiaries in respect of the Securitization
Assets sold or transferred by it in connection with a Permitted Securitization
(it being the intent of the parties that the amount of Securitization Facility
Attributed Debt at any time outstanding approximate as closely as possible
the
principal amount of Debt which would be outstanding at such time under the
Permitted Securitization if the same were structured as a secured lending
agreement rather than a purchase agreement).
“SPC”
has
the meaning set forth in Section 2.03(g).
“Standard
Securitization Undertakings” means representations, warranties, covenants and
indemnities entered into by the Borrower or any Subsidiary of the Borrower
which
are reasonably customary in an accounts receivable securitization.
“Stockholders’
Equity” means, at any time, the shareholders’ equity of the Borrower and its
Consolidated Subsidiaries, as set forth or reflected on the most
recent
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consolidated
balance sheet of the Borrower and its Consolidated Subsidiaries prepared
in
accordance with GAAP, but excluding
any
Redeemable Preferred Stock of the Borrower or any of its Consolidated
Subsidiaries. Shareholders’ equity generally would include, but not be limited
to (i) the par or stated value of all outstanding Capital Stock, (ii) capital
surplus, (iii) retained earnings, and (iv) various deductions such as (A)
purchases of treasury stock, (B) valuation allowances, (C) receivables due
from
an employee stock ownership plan, (D) employee stock ownership plan debt
guarantees, and (E) translation adjustments for foreign currency
transactions.
“Subsidiary”
means any corporation or other entity of which securities or other ownership
interests having ordinary voting power to elect a majority of the board of
directors or other persons performing similar functions are at the time directly
or indirectly owned by the Borrower.
“Swing
Line Borrowing” means a Swing Line Loan made to the Borrower by the Swing Line
Lender pursuant to Article II.
“Swing
Line Lender” means Wachovia Bank, National Association.
“Swing
Line Loan” means a loan made by the Swing Line Lender pursuant to Section 2.14
hereof.
“Swing
Line Note” means the amended and restated promissory note of the Borrower,
substantially in the form of Exhibit
C
hereto,
evidencing the obligation of the Borrower to repay the Swing Line Loans,
together with all amendments, consolidations, modifications, renewals and
supplements thereto.
“Syndicated
Loan” means a Base Rate Loan or a Euro-Dollar Loan and Syndicated Loans means
Base Rate Loans or Euro-Dollar Loans, or any or all of them, as the context
shall require.
“Syndicated
Notes” means the amended and restated promissory notes of the Borrower,
substantially in the form of Exhibit
A
hereto,
evidencing the obligation of the Borrower to repay the Syndicated Loans,
together with all amendments, consolidations, modifications, renewals and
supplements thereto and “Syndicated Note” means any one of such Syndicated
Notes.
“Synthetic
Lease Indebtedness” means the aggregate principal amount of all indebtedness
incurred in connection with any Synthetic Lease Transaction which is secured,
supported or serviced, directly or indirectly, by any payments made by the
Borrower or any Subsidiary.
“Synthetic
Lease Transaction” means any transaction involving a synthetic lease, tax
retention operating lease, off-balance sheet loan or similar off-balance sheet
financing product, where such transaction is considered borrowed money
indebtedness for tax purposes but
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is
classified as an operating lease in accordance with GAAP, and in respect of
which transaction any Synthetic Lease Indebtedness is issued or
incurred.
“Taxes”
has the meaning set forth in Section 2.12(c).
“Termination
Date” means June 30, 2011.
“Third
Parties” means all lessees, sublessees, licensees and other users of the
Properties, excluding those users of the Properties in the ordinary course
of
the Borrower’s business and on a temporary basis.
“Total
Unused Commitments” means at any date, an amount equal to: (i) the aggregate
amount of the Commitments of all of the Banks at such time, less (ii) the
aggregate outstanding principal amount of the Loans of all of the Banks at
such
time.
“Transferee”
has the meaning set forth in Section 9.07(d).
“Unused
Commitment” means at any date, with respect to any Bank, an amount equal to its
Commitment less the aggregate outstanding principal amount of its
Loans.
“Wachovia”
means Wachovia Bank, National Association, a national banking association and
its successors.
“Wholly
Owned Subsidiary” means any Subsidiary all of the shares of capital stock or
other ownership interests of which (except directors’ qualifying shares) are at
the time directly or indirectly owned by the Borrower.
SECTION
1.02. Accounting
Terms and Determinations.
Unless
otherwise specified herein, all terms of an accounting character used herein
shall be interpreted, all accounting determinations hereunder shall be made,
and
all financial statements required to be delivered hereunder shall be prepared
in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower’s independent public accountants or otherwise
required by a change in GAAP) with the most recent audited consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks, unless with respect to any such change concurred in by the
Borrower’s independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other
Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii)
the
Required Banks shall so object in writing within 30 days after the delivery
of
such financial statements, in either of which events such calculations shall
be
made on a basis consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have been made (which,
if objection is made in respect of the first financial statements delivered
under Section 5.01 hereof, shall mean the financial statements referred to
in
Section 4.04).
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SECTION
1.03. Use
of
Defined Terms.
All
terms defined in this Agreement shall have the same meanings when used in
any of
the other Loan Documents, unless otherwise defined therein or unless the
context
shall otherwise require.
SECTION
1.04. Terminology.
All
personal pronouns used in this Agreement, whether used in the masculine,
feminine or neuter gender, shall include all other genders; the singular shall
include the plural and the plural shall include the singular. Titles of Articles
and Sections in this Agreement are for convenience only, and neither limit
nor
amplify the provisions of this Agreement.
SECTION
1.05. References.
Unless
otherwise indicated, references in this Agreement to “Articles”, “Exhibits”,
“Schedules”, and “Sections” are references to articles, exhibits, schedules and
sections hereof.
ARTICLE
II
THE
CREDITS
SECTION
2.01. Commitments
to Make Syndicated Loans.
Each
Bank severally agrees, on the terms and conditions set forth herein, to make
Syndicated Loans to the Borrower from time to time before the Termination Date;
provided
that,
immediately after each such Syndicated Loan is made, the aggregate outstanding
principal amount of Syndicated Loans by such Bank (together with, in the case
of
the Swing Line Lender, the aggregate principal amount of all Swing Line Loans)
shall not exceed the amount of its Commitment, provided further
that the
aggregate principal amount of all Syndicated Loans, together with the aggregate
principal amount of all Money Market Loans and Swing Line Loans, at any one
time
outstanding shall not exceed the aggregate amount of the Commitments of all
of
the Banks at such time. Each Syndicated Borrowing under this Section that is
a
Euro-Dollar Borrowing shall be in an aggregate principal amount of $5,000,000
or
any larger multiple of $1,000,000 and each Syndicated Borrowing under this
Section that is a Base Rate Borrowing shall be in an aggregate principal amount
of $1,000,000 or any larger multiple of $500,000 (except that any such
Syndicated Borrowing may be in the aggregate amount of the Unused Commitments)
and shall be made from the several Banks ratably in proportion to their
respective Commitments. Within the foregoing limits, the Borrower may borrow
under this Section, repay or, to the extent permitted by Section 2.10, prepay
Syndicated Loans and reborrow under this Section at any time before the
Termination Date.
SECTION
2.02. Method
of Borrowing Syndicated Loans.
(a) The
Borrower shall give the Agent notice in the form attached hereto as Exhibit
L
(a
“Notice of Borrowing”) prior to 11:00 A.M. (Charlotte, North Carolina time) on
the Domestic Business Day of each Base Rate Borrowing and at least 3 Euro-Dollar
Business Days before each Euro-Dollar Borrowing, specifying:
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(i) the
date
of such Syndicated Borrowing, which shall be a Domestic Business Day in the
case
of a Base Rate Borrowing or a Euro-Dollar Business Day in the case of a
Euro-Dollar Borrowing,
(ii) the
aggregate amount of such Syndicated Borrowing,
(iii) whether
the Syndicated Loans comprising such Syndicated Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, and
(iv) in
the
case of a Euro-Dollar Borrowing, the duration of the Interest Period applicable
thereto, subject to the provisions of the definition of Interest
Period.
(b) Upon
receipt of a Notice of Borrowing, the Agent shall promptly notify each Bank
of
the contents thereof and of such Bank’s ratable share of such Syndicated
Borrowing and such Notice of Borrowing shall not thereafter be revocable by
the
Borrower.
(c) Not
later
than 1:00 p.m. (Charlotte, North Carolina time) on the date of each Syndicated
Borrowing, each Bank shall (except as provided in subsection (d) of this
Section) make available its ratable share of such Syndicated Borrowing, in
Federal or other funds immediately available in Charlotte, North Carolina,
to
the Agent at its address referred to in or specified pursuant to Section 9.01.
Unless the Agent determines that any applicable condition specified in Article
III has not been satisfied, the Agent will make the funds so received from
the
Banks available to the Borrower at the Agent’s aforesaid address. Unless the
Agent receives notice from a Bank, at the Agent’s address referred to in
Section 9.01, no later than 4:00 P.M. (local time at such address) on
the Domestic Business Day before the date of a Syndicated Borrowing stating
that
such Bank will not make a Syndicated Loan in connection with such Syndicated
Borrowing, the Agent shall be entitled to assume that such Bank will make a
Syndicated Loan in connection with such Syndicated Borrowing and, in reliance
on
such assumption, the Agent may (but shall not be obligated to) make available
such Bank’s ratable share of such Syndicated Borrowing to the Borrower for the
account of such Bank. If the Agent makes such Bank’s ratable share available to
the Borrower and such Bank does not in fact make its ratable share of such
Syndicated Borrowing available on such date, the Agent shall be entitled to
recover such Bank’s ratable share from such Bank or the Borrower (and for such
purpose shall be entitled to charge such amount to any account of the Borrower
maintained with the Agent), together with interest thereon for each day during
the period from the date of such Syndicated Borrowing until such sum shall
be
paid in full at a rate per annum equal to the rate at which the Agent determines
that it obtained (or could have obtained) overnight Federal funds to cover
such
amount for each such day during such period, provided
that any
such payment by the Borrower of such Bank’s ratable share and interest thereon
shall be without prejudice to any rights that the Borrower may have against
such
Bank. If such Bank shall repay to the Agent such corresponding amount, such
amount so repaid shall constitute such Bank’s Syndicated Loan included in such
Syndicated Borrowing for purposes of this Agreement.
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(d) If
any
Bank makes a new Syndicated Loan hereunder on a day on which the Borrower is
to
repay all or any part of an outstanding Syndicated Loan from such Bank, such
Bank shall apply the proceeds of its new Syndicated Loan to make such repayment
and only an amount equal to the difference (if any) between the amount being
borrowed and the amount being repaid shall be made available by such Bank to
the
Agent as provided in subsection (c) of this Section, or remitted by the Borrower
to the Agent as provided in Section 2.12, as the case may be.
(e) Notwithstanding
anything to the contrary contained in this Agreement, no Euro-Dollar Borrowing
may be made if there shall have occurred a Default or an Event of Default,
which
Default or Event of Default shall not have been cured or waived in
writing.
(f) In
the
event that a Notice of Borrowing fails to specify whether the Loans comprising
such Borrowing are to be Base Rate Loans or Euro-Dollar Loans, such Loans shall
be made as Base Rate Loans. If the Borrower is otherwise entitled under this
Agreement to repay any Loans maturing at the end of an Interest Period
applicable thereto with the proceeds of a new Borrowing, and the Borrower fails
to repay such Loans using its own moneys and fails to give a Notice of Borrowing
in connection with such new corresponding Borrowing, a new Borrowing shall
be
deemed to be made on the date such Loans mature in an amount equal to the
principal amount of the Loans so maturing, and the Loans comprising such new
Borrowing shall be Base Rate Loans.
(g) Notwithstanding
anything to the contrary contained herein, (i) there shall not be more than
8
different Interest Periods for both Euro-Dollar Loans and Money Market Loans
outstanding at the same time (for which purpose Interest Periods described
in
different numbered clauses of the definition of the term “Interest Period” shall
be deemed to be different Interest Periods even if they are coterminous) and
(ii) the proceeds of any Base Rate Borrowing shall be applied first to repay
the
unpaid principal amount of all Base Rate Loans (if any) outstanding immediately
before such Base Rate Borrowing.
SECTION
2.03. Money
Market Loans.
(a) In
addition to making Syndicated Borrowings, the Borrower may, as set forth in
this
Section, request the Banks to make offers to make Money Market Loans to the
Borrower. The Banks may, but shall have no obligation to, make such offers
and
the Borrower may, but shall have no obligation to, accept any such offers in
the
manner set forth in this Section, provided that:
(i) there
may
be no more than 8 different Interest Periods for both Euro-Dollar Loans and
Money Market Loans outstanding at the same time (for which purpose Interest
Periods described in different numbered clauses of the definition of the term
“Interest Period” shall be deemed to be different Interest Periods even if they
are coterminous);
(ii) the
aggregate principal amount of all Money Market Loans, together with the
aggregate principal amount of all Syndicated Loans and Swing Line Loans, at
any
one time outstanding shall not exceed the
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aggregate
amount of the
Commitments of all of the Banks at such time; and
(iii) no
Money
Market Loan made by any Bank shall reduce such Bank’s obligation hereunder to
make Loans to the Borrower equal to its pro rata share of the then
remaining Unused Commitments.
(b) When
the
Borrower wishes to request offers to make Money Market Loans, it shall give
the
Agent (which shall promptly notify the Banks) notice substantially in the form
of Exhibit
E
hereto
(a “Money Market Quote Request”) so as to be received no later than 11:00 A.M.
(Charlotte, North Carolina time) two Domestic Business Days prior to the date
of
the Money Market Borrowing proposed therein (or such other time and date as
the
Borrower and the Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the
proposed date of such Money Market Borrowing, which shall be a Domestic Business
Day (the “Quotation Date”);
(ii) the
aggregate amount of such Money Market Borrowing, which shall be at least
$5,000,000 (and in larger multiples of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) to be violated; and
(iii) the
duration of the Interest Period applicable thereto, which shall be 7 to 180
days.
The
Borrower may request offers to make Money Market Loans for up to three different
Interest Periods in a single Money Market Quote Request; provided that the
request for each separate Interest Period shall be deemed to be a separate
Money
Market Quote Request for a separate Money Market Borrowing. Except as otherwise
provided in the immediately preceding sentence, the Borrower shall not deliver
a
Money Market Quote Request more frequently than once every 5 Domestic Business
Days.
(c) (i) Each
Bank
may, but shall have no obligation to, submit a Money Market Quote containing
an
offer to make a Money Market Loan in response to any Money Market Quote Request;
provided that, if the Borrower’s request under Section 2.03(b) specified more
than one Interest Period, such Bank may, but shall have no obligation to, make
a
single submission containing a separate offer for each such Interest Period
and
each such separate offer shall be deemed to be a separate Money Market Quote.
Each Money Market Quote must be submitted to the Agent not later than 10:00
A.M.
(Charlotte, North Carolina time) on the Quotation Date (or such other time
and
date as the Borrower and the Agent, with the consent of the Required Banks,
may
agree); provided
that any
Money Market Quote submitted by Wachovia may be submitted, and may only be
submitted, if Wachovia notifies the Borrower of the terms of the offer contained
therein not later than 9:45 A.M. (Charlotte, North Carolina time) on the
Quotation Date. Subject to Section 6.01, any Money Market Quote so made shall
be
irrevocable except with the written consent of the Agent given on the
instructions of the Borrower.
WCSR
2018712
22
(ii) Each
Money Market Quote shall be in substantially the form of Exhibit
F
hereto
and shall specify:
(A) the
proposed date of the Money Market Borrowing and the duration of the Interest
Period therefor, which shall be 7 to 180 days;
(B) the
maximum principal amount of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period, which principal amount
(x)
may be greater than or less than the Commitment of the quoting Bank, (y) shall
be at least $5,000,000 or a larger multiple of $1,000,000, and (z) may not
exceed the principal amount of the Money Market Borrowing for which offers
were
requested;
(C) the
rate
of interest per annum (rounded, if necessary, to the nearest 1/100th of 1%)
(the
“Money Market Rate”) offered for each such Money Market Loan; and
(D) the
identity of the quoting Bank.
Unless
otherwise agreed by the Agent and the Borrower, no Money Market Quote shall
contain qualifying, conditional or similar language or propose terms other
than
or in addition to those set forth in the applicable Money Market Quote Request
(other than setting forth the maximum principal amount of the Money Market
Loan
which the quoting Bank is willing to make for the applicable Interest
Period).
(d) The
Agent
shall as promptly as practicable after the Money Market Quote is submitted
(but
in any event not later than 10:30 A.M. (Charlotte, North Carolina time) notify
the Borrower of the terms (i) of any Money Market Quote submitted by a Bank
that
is in accordance with Section 2.03(c) and (ii) of any Money Market Quote that
amends, modifies or is otherwise inconsistent with a previous Money Market
Quote
submitted by such Bank with respect to the same Money Market Quote Request.
Any
such subsequent Money Market Quote shall be disregarded by the Agent unless
such
subsequent Money Market Quote is submitted solely to correct a manifest error
in
such former Money Market Quote. The Agent’s notice to the Borrower shall specify
(A) the maximum aggregate principal amount of the Money Market Borrowing for
which offers have been received and (B) the maximum principal amount and Money
Market Rates so offered by each Bank (identifying the Bank that made each Money
Market Quote).
(e) Not
later
than 11:00 A.M. (Charlotte, North Carolina time) on the Quotation Date (or
such
other time and date as the Borrower and the Agent, with the consent
of
WCSR
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the
Required Banks, may agree), the Borrower shall notify the Agent of its
acceptance or nonacceptance of the offers so notified to it pursuant to Section
2.03(d) and the Agent shall promptly notify each Bank that has submitted
a Money
Market Quote. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers for each Interest Period that are accepted. The
Borrower may accept any Money Market Quote in whole or in part (provided
that
any Money Market Quote accepted in part from any Bank shall not be less than
the
amount set forth in the Money Market Quote of such Bank as the minimum principal
amount of the Money Market Loan such Bank was willing to make for the applicable
Interest Period); provided
that:
(i) the
aggregate principal amount of each Money Market Borrowing may not exceed the
applicable amount set forth in the related Money Market Quote
Request;
(ii) the
aggregate principal amount of each Money Market Borrowing shall be at least
$5,000,000 (and in larger multiples of $1,000,000) but shall not cause the
limits specified in Section 2.03(a) to be violated;
(iii) acceptance
of offers may only be made in ascending order of Money Market Rates;
and
(iv) the
Borrower may not accept any offer where the Agent has advised the Borrower
that
such offer fails to comply with Section 2.03(c)(ii) or otherwise fails to comply
with the requirements of this Agreement (including, without limitation, Section
2.03(a)).
If
offers
are made by two or more Banks with the same Money Market Rates for a greater
aggregate principal amount than the amount in respect of which offers are
accepted for the related Interest Period, the principal amount of Money Market
Loans in respect of which such offers are accepted shall be allocated by the
Borrower among such Banks as nearly as possible (in multiples of $100,000)
in
proportion to the aggregate principal amount of such offers. Determinations
by
the Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any
Bank
whose offer to make any Money Market Loan has been accepted shall, not later
than 12:00 P.M. (Charlotte, North Carolina time) on the Quotation Date, make
the
amount of such Loan available to the Agent at its address referred to in Section
9.01 in immediately available funds. The amount so received by the Agent shall,
subject to the terms and conditions of this Agreement, be made available to
the
Borrower on such date by depositing the same, in immediately available funds,
in
an account of such Borrower maintained with Wachovia.
(g) Notwithstanding
anything to the contrary contained herein, any Bank (a “Granting Lender”) may
grant to a special purpose funding vehicle (an “SPC”) the option to fund all or
any part of any Money Market Loan that such Granting Lender would otherwise
be
WCSR
2018712
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obligated
to fund pursuant to this Agreement; provided
that
(i)
nothing herein shall constitute a commitment by any SPC to fund any Money
Market
Loan, and (ii) if an SPC elects not to exercise such option or otherwise
fails
to fund all or any part of such Money Market Loan, the Granting Lender shall
be
obligated to fund such Money Market Loan pursuant to the terms hereof. The
funding of a Money Market Loan by an SPC hereunder shall utilize the Commitment
of the Granting Lender to the same extent, and as if, such Money Market Loan
were funded by such Granting Lender. Each party hereto agrees that no SPC
shall
be liable for any indemnity or payment under this Agreement for which a Bank
would otherwise be liable for so long as, and to the extent, the Granting
Lender
provides such indemnity or makes such payment. Notwithstanding anything to
the
contrary contained in this Agreement, any SPC may disclose on a confidential
basis any non-public information relating to its funding of Money Market
Loans
to any rating agency, commercial paper dealer or provider of any surety or
guarantee to such SPC. This Section may not be amended without the prior
written
consent of each Granting Lender, all or any part of whose Money Market Loan
is
being funded by an SPC at the time of such amendment.
SECTION
2.04. Notes.
(a) The
Syndicated Loans of each Bank shall be evidenced by a single Syndicated Note
payable to the order of such Bank for the account of its Lending Office in
an
amount equal to the original principal amount of such Bank’s
Commitment.
(b) The
Money
Market Loans made by any Bank to the Borrower shall be evidenced by a single
Money Market Note payable to the order of such Bank for the account of its
Lending Office.
(c) The
Swing
Line Loans made by the Swing Line Lender to the Borrower shall be evidenced
by a
single Swing Line Note payable to the order of the Swing Line
Lender.
(d) Upon
receipt of each Bank’s Notes pursuant to Section 3.01, the Agent shall deliver
such Notes to such Bank. Each Bank shall record, and prior to any transfer
of
its Notes shall endorse on the schedule forming a part thereof appropriate
notations to evidence, the date, amount and maturity of, and effective interest
rate for, each Loan made by it, the date and amount of each payment of principal
made by the Borrower with respect thereto and whether, in the case of such
Bank’s Syndicated Note, such Syndicated Loan is a Base Rate Loan or Euro-Dollar
Loan, and such schedule shall constitute rebuttable presumptive evidence of
the
principal amount owing and unpaid on such Bank’s Notes; provided
that the
failure of any Bank to make, or any error in making, any such recordation or
endorsement shall not affect the obligation of the Borrower hereunder or under
the Notes or the ability of any Bank to assign its Notes. Each Bank is hereby
irrevocably authorized by the Borrower so to endorse its Notes and to attach
to
and make a part of any Note a continuation of any such schedule as and when
required.
SECTION
2.05. Maturity
of Loans.
Each
Loan included in any Borrowing shall mature, and the principal amount thereof
shall be due and payable, on the last day of the Interest Period applicable
to
such Borrowing.
WCSR
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25
SECTION
2.06. Interest
Rates.
(a) ”Applicable Margin” shall be determined quarterly based upon the
ratio of Consolidated Total Debt (calculated as of the last day of each Fiscal
Quarter) to EBITDAR (calculated as of the last day of each Fiscal Quarter for
the Fiscal Quarter then ended and the immediately preceding three Fiscal
Quarters), as follows:
Ratio
of
Consolidated Base
Rate
Loans
Total
Debt to EBITDAR and
Swing Line Loans Euro-Dollar
Loans
Greater
than 2.5
0% 0.65%
Greater
than 2.0 but
equal
to
or less than 2.5 0% 0.55%
Less
than
or equal to 2.0 0% 0.45%
The
Applicable Margin shall be determined effective as of the date (herein, the
“Rate Determination Date”) which is 60 days after the last day of the Fiscal
Quarter as of the end of which the foregoing ratio is being determined, based
on
the quarterly financial statements for such Fiscal Quarter, and the Applicable
Margin so determined shall remain effective from such Rate Determination Date
until the date which is 60 days after the last day of the Fiscal Quarter in
which such Rate Determination Date falls (which latter date shall be a new
Rate
Determination Date); provided
that (i)
for the period from and including the Closing Date to but excluding the Rate
Determination Date next following the Closing Date, the Applicable Margin shall
be (A) 0% for Base Rate Loans, and (B) 0.45% for Euro-Dollar Loans,
(ii) in the case of any Applicable Margin determined for the fourth and
final Fiscal Quarter of a Fiscal Year, the Rate Determination Date shall be
the
date which is 120 days after the last day of such final Fiscal Quarter and
such
Applicable Margin shall be determined based upon the annual audited financial
statements for the Fiscal Year ended on the last day of such final Fiscal
Quarter, and (iii) if on any Rate Determination Date the Borrower shall have
failed to deliver to the Banks the financial statements required to be delivered
pursuant to Section 5.01(a) or Section 5.01(b) with respect to the Fiscal Year
or Fiscal Quarter, as the case may be, most recently ended prior to such Rate
Determination Date, then for the period beginning on such Rate Determination
Date and ending on the earlier of (A) the date on which the Borrower shall
deliver to the Banks the financial statements to be delivered pursuant to
Section 5.01(b) with respect to such Fiscal Quarter or any subsequent Fiscal
Quarter, or (B) the date on which the Borrower shall deliver to the Banks
annual financial statements required to be delivered pursuant to Section 5.01(a)
with respect to the Fiscal Year which includes such Fiscal Quarter or any
subsequent Fiscal Year, the Applicable Margin shall be determined as if the
ratio of Consolidated Total Debt to EBITDAR was more than 2.5 at all times
during such period. Any change in the Applicable Margin on any Rate
Determination Date shall result in a corresponding change, effective on and
as
of such Rate Determination Date, in the interest rate applicable to each
Syndicated Loan outstanding on such Rate Determination Date; provided, that:
(i)
for Euro-Dollar Loans, changes in Applicable Margin shall only be effective
for
Interest Periods commencing on or after the Rate
WCSR
2018712
26
Determination
Date; and (ii) no Applicable Margin shall be decreased pursuant to this Section
2.06 if a Default is in existence on the Rate Determination Date.
(b) Each
Base
Rate Loan shall bear interest on the outstanding principal amount thereof,
for
each day from the date such Loan is made until it becomes due, at a rate per
annum equal to the Base Rate for such day plus the Applicable Margin. Such
interest shall be payable for each Interest Period on the last day thereof.
Any
overdue principal of and, to the extent permitted by applicable law, overdue
interest on any Base Rate Loan (excluding a Swing Line Loan) shall bear
interest, payable on demand, for each day until paid in full at a rate per
annum
equal to the Default Rate.
(c) Each
Euro-Dollar Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the sum of: (1) the Applicable Margin, plus (2) the applicable Adjusted
London Interbank Offered Rate for such Interest Period; provided
that if
any Euro-Dollar Loan shall, as a result of clause (1)(c) of the definition
of
Interest Period, have an Interest Period of less than one month, such
Euro-Dollar Loan shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period
is
longer than 3 months, at intervals of 3 months after the first day thereof.
Any
overdue principal of and, to the extent permitted by applicable law, overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid in full at a rate per annum equal to the Default Rate.
The
“Adjusted London Interbank Offered Rate” applicable to any Interest Period means
a rate per annum equal to the quotient obtained (rounded upward, if necessary,
to the next higher 1/100th of 1%) by dividing (i) the applicable London
Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The
“London Interbank Offered Rate” applicable to any Euro-Dollar Loan means for the
Interest Period of such Euro-Dollar Loan the rate per annum determined on the
basis of the rate for deposits in Dollars of amounts equal or comparable to
the
principal amount of such Euro-Dollar Loan offered for a term comparable to
such
Interest Period, which rate appears on the display designated as Page “3750” of
the Telerate Service (or such other page as may replace page 3750 of that
service or such other service or services as may be nominated by the British
Banker’s Association for the purpose of displaying London Interbank Offered
Rates for U.S. dollar deposits) determined as of 1:00 p.m. New York City time,
2
Euro-Dollar Business Days prior to the first day of such Interest
Period.
“Euro-Dollar
Reserve Percentage” means for any day that percentage (expressed as a decimal)
which is in effect on such day, as prescribed by the Board of Governors of
the
Federal Reserve System (or any successor) for determining the maximum reserve
requirement for a member bank of the Federal Reserve System in respect of
“Eurocurrency liabilities” (or in respect of any other category of liabilities
which includes deposits by reference to which the interest rate on Euro-Dollar
Loans is determined or any category of extensions of credit or other assets
which includes loans by a non-United States office of any Bank to United States
residents).
WCSR
2018712
27
The
Adjusted London Interbank Offered Rate shall be adjusted automatically on
and as
of the effective date of any change in the Euro-Dollar Reserve
Percentage.
(d) Each
Money Market Loan shall bear interest on the outstanding principal amount
thereof, for the Interest Period applicable thereto, at a rate per annum equal
to the Money Market Rate for such Loan quoted by the Bank making such Loan
in
accordance with Section 2.03. Such interest shall be payable for such Interest
Period on the last day thereof and, if such Interest Period is longer than
90
days, at intervals of 90 days after the first day thereof. Any overdue principal
of and, to the extent permitted by law, overdue interest on any Money Market
Loan shall bear interest, payable on demand, for each day until paid at a rate
per annum equal to the Default Rate.
(e) The
Agent
shall determine each interest rate applicable to the Loans hereunder. The Agent
shall give prompt notice to the Borrower and the Banks by telecopy of each
rate
of interest so determined, and its determination thereof shall be conclusive
in
the absence of manifest error.
(f) After
the
occurrence and during the continuance of a Default, the principal amount of
the
Loans (excluding any Swing Line Loans) (and, to the extent permitted by
applicable law, all accrued interest thereon) may, at the election of the
Required Banks, bear interest at the Default Rate; provided, however, that
automatically whether or not the Required Banks elect to do so, any overdue
principal of and, to the extent permitted by law, overdue interest on any Loan
(excluding any Swing Line Loans) shall bear interest payable on demand, for
each
day until paid at a rate per annum equal to the Default Rate. After the
occurrence and during the continuance of a Default, the principal amount of
the
Swing Line Loans (and, to the extent permitted by applicable law, all accrued
interest thereon) may, at the election of the Swing Line Lender, bear interest
at the Default Rate.
(g) Each
Swing Line Loan shall bear interest on the outstanding principal amount thereof,
for the Interest Period applicable thereto, at a rate per annum equal to the
Base Rate for such day plus the Applicable Margin. Such interest shall be
payable for such Interest Period on the last day thereof. Any overdue principal
of and, to the extent permitted by applicable law, overdue interest on the
Swing
Line Loans may, at the election of the Swing Line Lender, bear interest, payable
on demand, for each day until paid at a rate per annum equal to the Default
Rate.
SECTION
2.07. Fees.
(a) The
Borrower shall pay to the Agent for the ratable account of each Bank a facility
fee equal to the product of: (i) the aggregate of the daily average amounts
of such Bank’s Commitment, times (ii) a per annum percentage equal to the
Applicable Facility Fee Rate. Such facility fee shall accrue from and including
the Closing Date to and including the Termination Date. Facility fees shall
be
payable quarterly in arrears on the first Facility Fee Payment Date following
each Facility Fee Determination Date and on the Termination Date; provided
that
should the Commitments be terminated at any time prior to the Termination Date
for any reason, the entire accrued and unpaid facility fee shall be paid on
the
date of such termination. The “Applicable Facility Fee Rate” shall be determined
quarterly based
WCSR
2018712
28
upon
the
ratio of Consolidated Total Debt (calculated as of the last day of each Fiscal
Quarter) to EBITDAR (calculated as of the last day of each Fiscal Quarter
for
the Fiscal Quarter then ended and the immediately preceding three Fiscal
Quarters) as follows:
Ratio of Consolidated |
Applicable
|
|||
Total Debt to EBITDAR |
Facility
Fee Rate
|
|||
Greater than 2.5 |
0.15%
|
|||
Greater than 2.0 | ||||
but equal to or less than 2.5 |
0.125%
|
|||
Less than or equal to 2.0 |
0.10%
|
The
Applicable Facility Fee Rate shall be determined effective as of the date
(herein, the “Facility Fee Determination Date”) which is 60 days after the last
day of the Fiscal Quarter as of the end of which the foregoing ratio is being
determined, based on the quarterly financial statements for such Fiscal Quarter,
and the Applicable Facility Fee Rate so determined shall remain effective from
such Facility Fee Determination Date until the date which is 60 days after
the
last day of the Fiscal Quarter in which such Facility Fee Determination Date
falls (which latter date shall be a new Facility Fee Determination Date);
provided
that (i)
for the period from and including the Closing Date to but excluding the Facility
Fee Determination Date next following the Closing Date, the Applicable Facility
Fee Rate shall be 0.10%; (ii) in the case of any Applicable Facility Fee Rate
determined for the fourth and final Fiscal Quarter of a Fiscal Year, the
Facility Fee Determination Date shall be the date which is 120 days after the
last day of such final Fiscal Quarter and such Applicable Facility Fee Rate
shall be determined based upon the annual audited financial statements for
the
Fiscal Year ended on the last day of such final Fiscal Quarter, and (iii) if
on
any Facility Fee Determination Date the Borrower shall have failed to deliver
to
the Banks the financial statements required to be delivered pursuant to Section
5.01(a) or Section 5.01(b) with respect to the Fiscal Year or Fiscal Quarter,
as
the case may be, most recently ended prior to such Facility Fee Determination
Date, then for the period beginning on such Facility Fee Determination Date
and
ending on the earlier of (A) the date on which the Borrower shall deliver to
the
Banks the financial statements to be delivered pursuant to Section 5.01(b)
with
respect to such Fiscal Quarter or any subsequent Fiscal Quarter, and (B) the
date on which the Borrower shall deliver to the Banks annual financial
statements required to be delivered pursuant to Section 5.01(a) with respect
to
the Fiscal Year which includes such Fiscal Quarter or any subsequent Fiscal
Year, the Applicable Facility Fee Rate shall be determined as if the ratio
of
Consolidated Total Debt to EBITDAR was more than 2.5 at all times during such
period.
(b) The
Borrower shall pay to the Agent, for the account and sole benefit of the Agent,
such fees and other amounts at such times as set forth in the Agent’s Letter
Agreement.
WCSR
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29
SECTION
2.08. Optional
Termination or Reduction of Commitments.
The
Borrower may, upon at least 3 Domestic Business Days’ notice to the Agent,
terminate at any time, or proportionately reduce from time to time by an
aggregate amount of at least $5,000,000 or any larger multiple of $1,000,000,
the Commitments; provided, however, no such termination or reduction shall
be in
an amount greater than the Total Unused Commitments on the date of such
termination or reduction. If the Commitments are terminated in their entirety,
all accrued fees (as provided under Section 2.07) shall be payable on the
effective date of such termination.
SECTION
2.09. Mandatory
Reduction and Termination of Commitments.
The
Commitments shall terminate on the Termination Date and any Loans then
outstanding (together with accrued interest thereon) shall be due and payable
on
such date.
SECTION
2.10. Optional
Prepayments.
(a) The
Borrower may, upon at least 1 Domestic Business Day’s notice to the Agent,
prepay any Base Rate Borrowing in whole at any time, or from time to time in
part in amounts aggregating at least $1,000,000, or any larger multiple of
$500,000, by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment. Each such optional prepayment shall
be applied to prepay ratably the Base Rate Loans of the several Banks included
in such Base Rate Borrowing.
(b) Except
as
provided in Section 8.02, the Borrower may not prepay all or any portion of
the principal amount of any Euro-Dollar Loan or any Money Market Loan prior
to
the last day of an Interest Period applicable thereto, unless such prepayment
is
accompanied by the amount due with respect thereto under Section
8.05(a).
(c) The
Borrower may prepay any Swing Line Loan in whole at any time, or from time
to
time in part in amounts aggregating at least $100,000 or any larger multiple
thereof by paying the principal amount to be prepaid together with accrued
interest thereon to the date of prepayment.
(d) Upon
receipt of a notice of prepayment pursuant to this Section, the Agent shall
promptly notify each Bank of the contents thereof and of such Bank’s ratable
share of such prepayment and such notice shall not thereafter be revocable
by
the Borrower.
SECTION
2.11. Mandatory
Prepayments.
On each
date on which the Commitments are reduced or terminated pursuant to
Section 2.08 or Section 2.09, the Borrower shall repay or prepay such
principal amount of the outstanding Loans, if any (together with interest
accrued thereon and any amounts due under Section 8.05(a)), as may be necessary
so that after such payment the aggregate unpaid principal amount of the Loans
does not exceed the aggregate amount of the Commitments as then reduced. Each
such payment or prepayment shall be applied to repay or prepay ratably the
Loans
of the several Banks; provided
that
such prepayment shall be applied, first, to Syndicated Loans outstanding on
the
date of such prepayment (in direct order of maturity) and then, to the extent
necessary, to Money Market Loans outstanding on the date of such prepayment
(in
direct order of maturity).
WCSR
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30
SECTION
2.12. General
Provisions as to Payments.
(a) The
Borrower shall make each payment of principal of, and interest on, the Loans
and
of commitment fees hereunder, not later than 11:00 A.M. (Charlotte, North
Carolina time) on the date when due, in Federal or other funds immediately
available in Charlotte, North Carolina, to the Agent at its address referred
to
in Section 9.01. The Agent will promptly distribute to each Bank its ratable
share of each such payment received by the Agent for the account of the
Banks.
(b) Whenever
any payment of principal of, or interest on, the Base Rate Loans or the Money
Market Loans or of fees shall be due on a day which is not a Domestic Business
Day, the date for payment thereof shall be extended to the next succeeding
Domestic Business Day. Whenever any payment of principal of, or interest on,
the
Euro-Dollar Loans shall be due on a day which is not a Euro-Dollar Business
Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal
is
extended by operation of law or otherwise, interest thereon shall be payable
for
such extended time.
(c) All
payments of principal, interest and fees and all other amounts to be made by
the
Borrower pursuant to this Agreement with respect to any Loan or fee relating
thereto shall be paid without deduction for, and free from, any tax, imposts,
levies, duties, deductions, or withholdings of any nature now or at anytime
hereafter imposed by any governmental authority or by any taxing authority
thereof or therein excluding in the case of each Bank, taxes imposed on or
measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank’s applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, imposts, levies, duties, deductions or withholdings of any nature being
“Taxes”). In the event that the Borrower is required by applicable law to make
any such withholding or deduction of Taxes with respect to any Loan or fee
or
other amount, the Borrower shall pay such deduction or withholding to the
applicable taxing authority, shall promptly furnish to any Bank in respect
of
which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may
be
necessary in order that the amount received by such Bank after the required
withholding or other payment shall equal the amount such Bank would have
received had no such withholding or other payment been made. If no withholding
or deduction of Taxes are payable in respect of any Loan or fee relating
thereto, the Borrower shall furnish any Bank, at such Bank’s request, a
certificate from each applicable taxing authority or an opinion of counsel
acceptable to such Bank, in either case stating that such payments are exempt
from or not subject to withholding or deduction of Taxes. If the Borrower fails
to provide such original or certified copy of a receipt evidencing payment
of
Taxes or certificate(s) or opinion of counsel of exemption, the Borrower hereby
agrees to compensate such Bank for, and indemnify them with respect to, the
tax
consequences of the Borrower’s failure to provide evidence of tax payments or
tax exemption.
In
the
event any Bank receives a refund of any Taxes paid by the Borrower pursuant
to
this Section 2.12, it will pay to the Borrower the amount of such refund
promptly
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upon
receipt thereof; provided,
however,
if at
any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 2.12 shall
be applicable with respect to any Participant, Assignee or other Transferee,
and
any calculations required by such provisions (i) shall be made based upon the
circumstances of such Participant, Assignee or other Transferee, and (ii)
constitute a continuing agreement and shall survive the termination of this
Agreement and the payment in full or cancellation of the Notes.
SECTION
2.13. Computation
of Interest and Fees.
Interest on Base Rate Loans shall be computed on the basis of a year of 360
days
and paid for the actual number of days elapsed (including the first day but
excluding the last day). Interest on Euro-Dollar Loans and interest on Money
Market Loans shall be computed on the basis of a year of 360 days and paid
for
the actual number of days elapsed, calculated as to each Interest Period from
and including the first day thereof to but excluding the last day thereof.
Facility fees and any other fees payable hereunder shall be computed on the
basis of a year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day).
SECTION
2.14. Swing
Line Loans.
(a) The
Borrower may prior to the Termination Date, as set forth in this Section,
request the Swing Line Lender to make, and the Swing Line Lender prior to the
Termination Date will make, Swing Line Loans to the Borrower, in an aggregate
principal amount at any one time outstanding, not exceeding $10,000,000,
provided that:
(i) the
aggregate principal amount of all Swing Line Loans, together with the aggregate
outstanding principal amount of all outstanding Loans, at any one time
outstanding shall not at any one time exceed the aggregate amount of the
Commitments of all of the Banks at such time; and
(ii) the
aggregate principal amount of all Swing Line Loans, together with all
outstanding Loans made by the Swing Line Lender, at any one time outstanding
shall not exceed the Commitment of the Swing Line Lender.
(b) When
the
Borrower wishes to request a Swing Line Loan, it shall give the Agent notice
substantially in the form of Exhibit
M
hereto
(a “Swing Line Loan Request”) so as to be received no later than 11:00 A.M.
(Charlotte, North Carolina time) on or before the date of the proposed Swing
Line Borrowing proposed therein (or such other time and date as the Borrower
and
the Swing Line Lender may agree), specifying:
(i) the
proposed date of such Swing Line Borrowing, which shall be a Domestic Business
Day (the “Borrowing Date”); and
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(ii) the
aggregate amount of such Swing Line Borrowing, which shall be at least $500,000
(or in larger multiples of $100,000) but shall not cause the limits specified
in
Section 2.14(a) to be violated.
(c) The
Swing
Line Lender shall make the amount of such Swing Line Loan available to the
Borrower on such date by depositing the same, in immediately available funds,
in
an account of such Borrower maintained with the Swing Line Lender.
(d) Subject
to the limitations contained in this Agreement, the Borrower may borrow under
this Section 2.14, prepay and reborrow under this Section 2.14 at any time
before the Termination Date. Each Swing Line Loan included in any Swing Line
Borrowing shall mature, and the principal amount thereof shall be due and
payable, on the first to occur of: (i) the last day of the Interest Period
applicable to such Swing Line Borrowing; or (ii) the Termination
Date;
(e) At
any
time, upon the request of the Swing Line Lender, each Bank other than the Swing
Line Lender shall, on the third Domestic Business Day after such request is
made, purchase a participating interest in Swing Line Loans in an amount equal
to its ratable share (based upon its respective Commitment) of such Swing Line
Loans. On such third Domestic Business Day, each Bank will immediately transfer
to the Swing Line Lender, in immediately available funds, the amount of its
participation. Whenever, at any time after the Swing Line Lender has received
from any such Bank its participating interest in a Swing Line Loan, the Agent
receives any payment on account thereof, the Agent will distribute to such
Bank
its participating interest in such amount (appropriately adjusted, in the case
of interest payments, to reflect the period of time during which such Bank’s
participating interest was outstanding and funded); provided,
however,
that in
the event that such payment received by the Agent is required to be returned,
such Bank will return to the Agent any portion thereof previously distributed
by
the Agent to it. Each Bank’s obligation to purchase such participating interests
shall be absolute and unconditional and shall not be affected by any
circumstance, including, without limitation: (i) any set-off, counterclaim,
recoupment, defense or other right which such Bank or any other Person may
have
against the Swing Line Lender requesting such purchase or any other Person
for
any reason whatsoever; (ii) the occurrence or continuance of a Default or an
Event of Default or the termination of the Commitments, provided that no Bank
shall be required to purchase a participating interest in any Swing Line Loan
first advanced after the Swing Line Lender has actual knowledge of an Event
of
Default; (iii) any adverse change in the condition (financial or otherwise)
of
the Borrower or any other Person; (iv) any breach of this Agreement by the
Borrower or any other Bank, provided that no Bank shall be required to purchase
a participating interest in any Swing Line Loan, if the aggregate outstanding
principal amount of all Swing Line Loans exceeds $10,000,000; or (v) any other
circumstance, happening or event whatsoever, whether or not similar to any
of
the foregoing.
(f) In
furtherance and not in limitation of the rights set forth in Section 2.14(e),
the Swing Line Lender may, at any time, in its sole discretion, by written
notice to the Borrower and the Agent, demand repayment of its Swing Line Loans
by way of a Syndicated Loan borrowing, in which case the Borrower shall be
deemed to have requested a Syndicated
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Loan
borrowing comprised entirely of Base Rate Loans in the amount of such Swing
Line
Loans; provided, however, that, in the following circumstances, any such demand
shall also be deemed to have been given one Domestic Business Day prior to
each
of (i) the Termination Date, (ii) the occurrence of any Event of Default
described in Section 6.01(g) or Section 6.01(h), (iii) upon acceleration of
the
Notes or any other amount payable hereunder or under the Credit Documents,
whether on account of an Event of Default described in Section 6.01(g) or
Section 6.01(h) or any other Event of Default, and (iv) the exercise of remedies
in accordance with the provisions of Section 6.01 hereof (each such Syndicated
Loan borrowing made on account of any such deemed request therefor as provided
herein being hereinafter referred to as a “Swing Line Mandatory Borrowing”).
Each Bank hereby irrevocably agrees to make such Syndicated Loans promptly
upon
any such request or deemed request on account of each Swing Line Mandatory
Borrowing in the amount and in the manner specified in the preceding sentence
and on the same such date notwithstanding (A) the amount of Swing Line Mandatory
Borrowing may not comply with the minimum amount for borrowings of Syndicated
Loans otherwise required hereunder, (B) whether any conditions specified in
Section 3.02 are then satisfied, (C) whether a Default or an Event of Default
then exists, (D) failure of any such request or deemed request for Revolving
Loans to be made by the time otherwise required in Section 2.02, (E) the date
of
such Swing Line Mandatory Borrowing, or (F) any reduction in the Commitments
or
termination of the Commitments immediately prior to such Swing Line Mandatory
Borrowing or contemporaneously therewith.
(g) Notwithstanding
anything contained in this Agreement to the contrary, the Swing Line Loan
facility contained in this Section 2.14 shall terminate immediately upon: (i)
Wachovia’s removal or resignation as Agent; or (ii) termination of the
Commitments (whether at maturity or otherwise).
ARTICLE
III
CONDITIONS
TO BORROWINGS
SECTION
3.01. Conditions
to Closing.
The
Borrower shall satisfy the following conditions on the Closing
Date:
(a) receipt
by the Agent from each of the parties hereto of a duly executed counterpart
of
this Agreement signed by such party;
(b) receipt
by the Agent of a duly executed Syndicated Note, a duly executed Swing Line
Note
and a duly executed Money Market Note for the account of each Bank complying
with the provisions of Section 2.04;
(c) receipt
by the Agent of the opinions (together with any opinions of local counsel relied
on therein) of Xxxxx & Xxxxxxxxx, LLP, counsel for the Loan Parties and
Xxxxxx X. Xxxxx, Chief Officer - Legal and Corporate Affairs of the Borrower,
dated as of the Closing Date, covering the matters set forth in Exhibits
D-1
and
D-2
hereto
and covering such additional matters relating to the transactions contemplated
hereby as the Agent or any Bank may reasonably request;
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(d) receipt
by the Agent of an opinion of Xxxxxx Xxxxxxx Xxxxxxxxx & Xxxx, PLLC, special
counsel for the Agent, dated as of the Closing Date, substantially in the form
of Exhibit
N
hereto
and covering such additional matters relating to the transactions contemplated
hereby as the Agent may reasonably request;
(e) receipt
by the Agent of a certificate (the “Closing Certificate”), dated as of the
Closing Date, substantially in the form of Exhibit
O
hereto,
signed by a principal financial officer of the Borrower and each Loan Party,
to
the effect that (i) no Default has occurred and is continuing on the
Closing Date, and (ii) the representations and warranties of the Loan
Parties contained in the Loan Documents are true on and as of the Closing
Date;
(f) receipt
by the Agent of all documents which the Agent or any Bank may reasonably request
relating to the existence of each Loan Party, the corporate authority for and
the validity of each Loan Document to which it is a party, and any other matters
relevant hereto, all in form and substance satisfactory to the Agent, including
without limitation a certificate of incumbency of such Loan Party (the
“Officer’s Certificate”), signed by the Secretary or an Assistant Secretary of
such Loan Party, substantially in the form of Exhibit
P
hereto,
certifying as to the names, true signatures and incumbency of the officer or
officers of such Loan Party authorized to execute and deliver the Loan Documents
to which it is a party, and certified copies of the following items: (i) such
Loan Party’s Certificate of Incorporation, (ii) such Loan Party’s Bylaws, (iii)
a certificate of the Secretary of State of the State of such Loan Party’s
organization as to the good standing of such Loan Party as a corporation, and
(iv) the action taken by the Board of Directors of such Loan Party authorizing
such Loan Party’s execution, delivery and performance of this Agreement, the
Notes and the other Loan Documents to which such Loan Party is a
party;
(g) receipt
by the Agent of the Guaranty, duly executed by each Guarantor;
(h) receipt
by the Agent of the Indemnity, Subrogation and Contribution Agreement, duly
executed by each Loan Party which is a party thereto;
(i) receipt
by the Agent and the Banks of evidence that all fees due and payable to the
Agent and the Banks on the Closing Date have been paid in full; and
(j) such
other documents or items as the Agent, the Banks or their counsel may reasonably
request.
SECTION
3.02. Conditions
to All Borrowings.
The
obligation of each Bank to make a Loan on the occasion of each Borrowing is
subject to the satisfaction of the following conditions:
(a) either
(i) receipt by the Agent of a Notice of Borrowing as required by Section 2.02
(if such Borrowing is a Syndicated Borrowing), (ii) compliance with the
provisions
WCSR
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35
of
Section 2.03 (if such Borrowing is a Money Market Borrowing); or (iii)
compliance with the provisions of Section 2.14, in the case of a Swing Line
Loan;
(b) the
fact
that, immediately before and after such Borrowing, no Default shall have
occurred and be continuing;
(c) the
fact
that the representations and warranties of the Borrower contained in Article
IV
of this Agreement shall be true on and as of the date of such Borrowing;
(d) the
fact
that the representations and warranties of the Loan Parties contained in the
Guaranty shall be true on and as of the date of such Borrowing; and
(e) the
fact
that, immediately after such Borrowing (i) the aggregate outstanding principal
amount of the Syndicated Loans of each Bank (together with, in the case of
the
Swing Line Lender, the aggregate outstanding principal amount of all Swing
Line
Loans) will not exceed the amount of its Commitment and (ii) the aggregate
outstanding principal amount of the Loans will not exceed the aggregate amount
of the Commitments of all of the Banks as of such date.
Each
Borrowing hereunder shall be deemed to be a representation and warranty by
the
Borrower on the date of such Borrowing as to the truth and accuracy of the
facts
specified in clauses (b), (c) and (d) of this Section.
ARTICLE
IV
REPRESENTATIONS
AND WARRANTIES
The
Borrower represents and warrants that:
SECTION
4.01. Corporate
Existence and Power.
The
Borrower is a corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation, is duly qualified
to
transact business in every jurisdiction where, by the nature of its business,
such qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
SECTION
4.02. Corporate
and Governmental Authorization; No Contravention.
The
execution, delivery and performance by the Loan Parties of this Agreement,
the
Notes and the other Loan Documents (i) are within the Loan Parties’
organizational powers, (ii) have been duly authorized by all necessary
organizational action, (iii) require no action by or in respect of, or
filing with, any governmental body, agency or official, (iv) do not
contravene, or constitute a default under, any provision of applicable law
or
regulation or of the certificate of incorporation, operating agreement or
by-laws of any Loan Party or of any agreement, judgment, injunction, order,
decree or other instrument binding upon the Borrower or any of its Subsidiaries,
and (v) do not result in the creation or imposition of any Lien on any
asset of the Borrower or any of its
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Subsidiaries,
except in favor of the Collateral Agent, the Agent and the Banks as provided
in
the Loan Documents.
SECTION
4.03. Binding
Effect.
This
Agreement constitutes a valid and binding agreement of the Borrower enforceable
in accordance with its terms, and the Notes and the other Loan Documents, when
executed and delivered in accordance with this Agreement, will constitute valid
and binding obligations of each of the Loan Parties that are a party thereto
enforceable in accordance with their respective terms, provided
that the
enforceability hereof and thereof is subject in each case to general principles
of equity and to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors’ rights generally.
SECTION
4.04. Financial
Information.
(a) The consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of December 31, 2004 and the related consolidated
statements of income, shareholders’ equity and cash flows for the Fiscal Year
then ended, reported on by PricewaterhouseCoopers, LLP, copies of which have
been delivered to each of the Banks, and the unaudited consolidated financial
statements of the Borrower for the interim period ended September 30, 2005,
copies of which have been delivered to each of the Banks, fairly present, in
conformity with GAAP, the consolidated financial position of the Borrower and
its Consolidated Subsidiaries as of such date and their consolidated results
of
operations and cash flows for such period stated.
(b) Since
December 31, 2004, there has been no event, act, condition or occurrence having
a Material Adverse Effect.
SECTION
4.05. Litigation.
There
is no action, suit or proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official which
could
have a Material Adverse Effect or which in any manner draws into question the
validity or enforceability of, or could impair the ability of any Loan Party
to
perform its obligations under, this Agreement, the Notes or any of the other
Loan Documents.
SECTION
4.06. Compliance
with ERISA.
(a) The
Borrower and each member of the Controlled Group have fulfilled their
obligations under the minimum funding standards of ERISA and the Code with
respect to each Plan and are in compliance in all material respects with the
presently applicable provisions of ERISA and the Code, and have not incurred
any
liability to the PBGC or a Plan under Title IV of ERISA.
(b) Neither
the Borrower nor any member of the Controlled Group is or ever has been
obligated to contribute to any Multiemployer Plan.
SECTION
4.07. Taxes.
There
have been filed on behalf of the Borrower and its Subsidiaries all Federal,
state and local income, excise, property and other tax returns which are
required to be filed by them and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the Borrower or any
Subsidiary have been paid. The charges, accruals and reserves on the books
of
the Borrower and its Subsidiaries in respect of
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taxes
or
other governmental charges are, in the opinion of the Borrower, adequate.
United
States income tax returns of the Borrower and its Subsidiaries have been
examined and closed through the Fiscal Year ended December 31,
2001.
SECTION
4.08. Subsidiaries.
Each of
the Borrower’s Subsidiaries is a corporation or limited liability company duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation or formation, is duly qualified to transact
business in every jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate or limited liability company
powers and all governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. As of the Closing Date,
the
Borrower has no Subsidiaries except those Subsidiaries listed on Schedule
4.08.
Each
Compliance Certificate delivered by the Borrower pursuant to Section
5.01(c)
sets
forth the complete name and jurisdiction of the incorporation or formation
of
each Subsidiary of the Borrower created, formed or acquired during the time
period covered by the financial statements applicable to such Compliance
Certificate. Schedule
4.08
and such
Compliance Certificates accurately set forth each such Subsidiary's complete
name and jurisdiction of incorporation or formation.
SECTION
4.09. Not
an
Investment Company.
Neither
the Borrower nor any of its Subsidiaries is an “investment company” within the
meaning of the Investment Company Act of 1940, as amended.
SECTION
4.10 Public
Utility Holding Company Act.
Neither
the Borrower nor any of its Subsidiaries is a “holding company”, or a
“subsidiary company” of a “holding company”, or an “affiliate” of a “holding
company” or of a “subsidiary company” of a “holding company”, as such terms are
defined in the Public Utility Holding Company Act of 1935, as
amended.
SECTION
4.11. Ownership
of Property; Liens.
Each of
the Borrower and its Consolidated Subsidiaries has title to its properties
sufficient for the conduct of its business, and none of such property is subject
to any Lien except as permitted in Section 5.08.
SECTION
4.12. No
Default.
Neither
the Borrower nor any of its Consolidated Subsidiaries is in default under or
with respect to any agreement, instrument or undertaking to which it is a party
or by which it or any of its property is bound which could have or cause a
Material Adverse Effect. No Default or Event of Default has occurred and is
continuing.
SECTION
4.13. Full
Disclosure.
All
information heretofore furnished by the Borrower to the Agent or any Bank for
purposes of or in connection with this Agreement or any transaction contemplated
hereby is, and all such information hereafter furnished by the Borrower to
the
Agent or any Bank will be, true, accurate and complete in every material respect
or based on reasonable estimates on the date as of which such information is
stated or certified. The Borrower has disclosed to the Banks in writing any
and
all facts which could have or cause a Material Adverse Effect.
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SECTION
4.14. Environmental
Matters.
(a)
Neither the Borrower nor any Subsidiary is subject to any Environmental
Liability which could have or cause a Material Adverse Effect and neither the
Borrower nor any Subsidiary has been designated as a potentially responsible
party under CERCLA or under any state statute similar to CERCLA. None of the
Properties has been identified on any current or proposed (i) National
Priorities List under 40 C.F.R. § 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) No
Hazardous Materials have been or are being used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of, managed or
otherwise handled at, or shipped or transported to or from the Properties or
are
otherwise present at, on, in or under the Properties, or, to the best of the
knowledge of the Borrower, at or from any adjacent site or facility, except
for
Hazardous Materials, such as cleaning solvents, pesticides and other materials
used, produced, manufactured, processed, treated, recycled, generated, stored,
disposed of, and managed or otherwise handled in minimal amounts in the ordinary
course of business in compliance with all applicable Environmental
Requirements.
(c) The
Borrower, and each of its Subsidiaries and Affiliates, has procured all
Environmental Authorizations necessary for the conduct of its business, and
is
in compliance with all Environmental Requirements in connection with the
operation of the Properties and the Borrower’s, and each of its Subsidiary’s and
Affiliate’s, respective businesses.
SECTION
4.15. Compliance
with Laws.
The
Borrower and each Subsidiary is in compliance with all applicable laws,
including, without limitation, all Environmental Laws, except where any failure
to comply with any such laws would not, alone or in the aggregate, have a
Material Adverse Effect.
SECTION
4.16. Capital
Stock.
All
Capital Stock, debentures, bonds, notes and all other securities of the Borrower
and its Subsidiaries presently issued and outstanding are validly and properly
issued in accordance with all applicable laws, including, but not limited to,
the “Blue Sky” laws of all applicable states and the federal securities laws.
The issued shares of Capital Stock of the Borrower’s Wholly Owned Subsidiaries
are owned by the Borrower free and clear of any Lien or adverse claim, except
for Permitted Liens. At least a majority of the issued shares of capital stock
of each of the Borrower’s other Subsidiaries (other than Wholly Owned
Subsidiaries) is owned by the Borrower free and clear of any Lien or adverse
claim, except for the Permitted Liens.
SECTION
4.17. Margin
Stock.
Neither
the Borrower nor any of its Subsidiaries is engaged principally, or as one
of
its important activities, in the business of purchasing or carrying any Margin
Stock, and no part of the proceeds of any Loan will be used to purchase or
carry
any Margin Stock or to extend credit to others for the purpose of purchasing
or
carrying any Margin Stock, or be used for any purpose which violates, or which
is inconsistent with, the provisions of Regulations T, U or X of the Board
of
Governors of the Federal Reserve System..
SECTION
4.18. Insolvency.
After
giving effect to the execution and delivery of the Loan Documents and the making
of the Loans under this Agreement, the Borrower will not
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be
“insolvent,” within the meaning of such term as used in O.C.G.A. § 18-2-22 or as
defined in § 101 of Title 11 of the United States Code or Section 2 of the
Uniform Fraudulent Transfer Act, or any other applicable state law pertaining
to
fraudulent transfers, as each may be amended from time to time, or be unable
to
pay its debts generally as such debts become due, or have an unreasonably
small
capital to engage in any business or transaction, whether current or
contemplated.
SECTION
4.19. Intentionally omitted.
SECTION
4.20. Insurance.
The
Borrower and each of its Subsidiaries maintains (either in the name of the
Borrower or in such Subsidiary’s own name), with financially sound and reputable
insurance companies, insurance on all its Property in at least such amounts
and
against at least such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or similar
business.
SECTION
4.21. Joint
Ventures/Partnerships.
The
Borrower agrees to provide to the Agent annually, simultaneously with providing
the information required pursuant to Section 5.01(a), a then current list
of all joint ventures and partnerships in which the Borrower or a Subsidiary
is
a partner or venturer (referred to herein collectively as the “Joint Ventures”)
and the percentage ownership in each such Joint Venture owned by the Borrower
or
any Subsidiary. Schedule
4.21
accurately sets forth the complete name and jurisdiction of organization of
each
Joint Venture in which the Borrower or any Subsidiary owns an Investment on
the
Closing Date. Except for Company Owned Restaurants and Development Joint
Ventures, neither the Borrower nor any Subsidiary is a general partner in any
Joint Venture, other than a Subsidiary that is a corporation, the sole assets
of
which consist of its interest in such Joint Venture.
SECTION
4.22. Sanctioned
Persons; Sanctioned Countries.
Neither
the Borrower nor any of its Subsidiaries and to the best of Borrower’s
knowledge, no Affiliate of the Borrower or any of its Subsidiaries, (i) is
a
Sanctioned Person or (ii) does business in a Sanctioned Country or with a
Sanctioned Person in violation of the economic sanctions of the United States
administered by OFAC. The proceeds of any Loan will not be used to fund any
operation in, finance any investments or activities in or make any payments
to,
a Sanctioned Person or a Sanctioned Country.
ARTICLE
V
COVENANTS
The
Borrower agrees that, so long as any Bank has any Commitment hereunder or any
amount payable under any Note remains unpaid:
SECTION
5.01. Information.
The
Borrower will deliver to each of the Banks:
(a) as
soon
as available and in any event within 90 days after the end of each Fiscal Year,
a consolidated balance sheet of the Borrower and its Consolidated Subsidiaries
as of
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the
end
of such Fiscal Year and the related consolidated statements of income,
shareholders’ equity and cash flows for such Fiscal Year, setting forth in each
case in comparative form the figures for the previous fiscal year, all certified
by PricewaterhouseCoopers, LLP or other independent public accountants of
nationally recognized standing, with such certification to be free of exceptions
and qualifications not acceptable to the Required Banks;
(b) as
soon
as available and in any event within 45 days after the end of each of the first
3 Fiscal Quarters of each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of such Fiscal Quarter
and the related statement of income and statement of cash flows for such Fiscal
Quarter and for the portion of the Fiscal Year ended at the end of such Fiscal
Quarter, setting forth in each case in comparative form the figures for the
corresponding Fiscal Quarter and the corresponding portion of the previous
Fiscal Year, all certified (subject to normal year-end adjustments) as to
fairness of presentation, GAAP and consistency by the chief financial officer
or
the chief accounting officer of the Borrower;
(c) simultaneously
with the delivery of each set of financial statements referred to in clauses
(a)
and (b) above, a certificate, substantially in the form of Exhibit
Q
(a
“Compliance Certificate”), of the chief financial officer or the chief
accounting officer of the Borrower (i) setting forth in reasonable detail the
calculations required to establish whether the Borrower was in compliance with
the requirements of Sections 5.03 through 5.08, inclusive, 5.11
and
5.26 on
the
date of such financial statements, (ii) identifying the complete name and
jurisdiction of incorporation of each Subsidiary of the Borrower created, formed
or acquired during the time period covered by such financial statements; (iii)
identifying the Domestic Subsidiaries; and (iv) stating whether any Default
exists on the date of such certificate and, if any Default then exists, setting
forth the details thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(d) simultaneously
with the delivery of each set of annual financial statements referred to in
clause (a) above, a statement of the firm of independent public accountants
which reported on such statements to the effect that nothing has come to their
attention to cause them to believe that any Default existed on the date of
such
financial statements;
(e) within
5
Domestic Business Days after the Borrower becomes aware of the occurrence of
any
Default, a certificate of the chief financial officer or the chief accounting
officer of the Borrower setting forth the details thereof and the action which
the Borrower is taking or proposes to take with respect thereto;
(f) promptly
upon the mailing thereof to the shareholders of the Borrower generally, copies
of all financial statements, reports and proxy statements so
mailed;
(g) promptly
upon the filing thereof, copies of all registration statements (other than
the
exhibits thereto and any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Borrower shall have filed
with the Securities and Exchange Commission;
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(h) if
and
when the Borrower or any member of the Controlled Group (i) gives or is required
to give notice to the PBGC of any “reportable event” (as defined in
Section 4043 of ERISA) with respect to any Plan which might constitute
grounds for a termination of such Plan under Title IV of ERISA, or knows
that the plan administrator of any Plan has given or is required to give notice
of any such reportable event, a copy of the notice of such reportable event
given or required to be given to the PBGC; (ii) receives notice of complete
or partial withdrawal liability under Title IV of ERISA, a copy of such
notice; or (iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate or appoint a trustee to administer any Plan, a copy
of
such notice;
(i) promptly
after the Borrower knows of the commencement thereof, notice of any litigation,
dispute or proceeding involving a claim against the Borrower and/or any
Subsidiary for $1,000,000 or more in excess of amounts covered in full by
applicable insurance; and
(j) from
time
to time such additional information regarding the financial position or business
of the Borrower and its Subsidiaries as the Agent, at the request of any Bank,
may reasonably request.
SECTION
5.02. Inspection
of Property, Books and Records.
The
Borrower will (i) keep, and will cause each Subsidiary to keep, proper books
of
record and account in which full, true and correct entries in conformity with
GAAP shall be made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary to permit,
representatives of any Bank at such Bank’s expense prior to the occurrence of an
Event of Default and at the Borrower’s expense after the occurrence of an Event
of Default to visit and inspect any of their respective properties, to examine
and make abstracts from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their respective officers,
employees and independent public accountants. The Borrower agrees to cooperate
and assist in such visits and inspections, in each case at such reasonable
times
and as often as may reasonably be desired.
SECTION
5.03. Ratio
of Consolidated Total Debt to EBITDAR.
At the
end of each Fiscal Quarter commencing with the Fiscal Quarter ending September
30, 2005, the ratio of Consolidated Total Debt determined for the Fiscal Quarter
then ending to EBITDAR for the Fiscal Quarter then ending and the immediately
preceding three Fiscal Quarters will not at any time exceed 3.00 to
1.00.
SECTION
5.04. Minimum
Consolidated Net Worth.
Consolidated Net Worth will at all times be greater than or equal to
Consolidated Total Debt.
SECTION
5.05. Intentionally omitted.
SECTION
5.06. Loans
or Advances.
Neither
the Borrower nor any of its Subsidiaries shall make loans or advances to any
Person except Permitted Loans and Advances.
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SECTION
5.07. Investments.
Neither
the Borrower nor any of its Subsidiaries shall make Investments in any Person
except as permitted by Section 5.06 and except Investments in
(i) direct obligations of the United States Government maturing within one
year, (ii) certificates of deposit issued by a commercial bank whose credit
is satisfactory to the Agent, (iii) commercial paper rated A-1 or the
equivalent thereof by Standard & Poor’s Corporation or P-1 or the equivalent
thereof by Xxxxx’x Investors Service, Inc. and in either case maturing within
270 days after the date of acquisition, (iv) Company Owned Restaurants made
in
the ordinary course of business, (v) Development Joint Ventures in satisfaction
of the obligations of the Borrower or a Consolidated Subsidiary to such
Development Joint Ventures, made in the ordinary course of business, (vi) the
stock or other equity interests of any other Person (excluding Investments
existing on the Closing Date) provided that the aggregate amount expended,
assumed or incurred by the Borrower and the Subsidiaries of the Borrower in
connection with such Investment does not exceed, when aggregated with the total
amount expended, assumed or incurred by the Borrower and the Subsidiaries in
connection with all such other Investments under this Section 5.07(vi), together
with the aggregate outstanding principal amount of the loans and advances made
under item (vi) of the definition of Permitted Loans and Advances, ten percent
(10%) of Consolidated Net Worth at the time of such Investment, (vii)
Investments of the Borrower and its Subsidiaries existing on the Closing Date,
(viii) Investments in Permitted Acquisitions, (ix) obligations issued or
unconditionally guaranteed by a state or municipality having a rating of AA
or
better from Standard & Poor’s Corporation or Aa or better from Xxxxx’x
Investors Service, Inc., (x) obligations of a corporation having a rating of
AA
or better from Standard & Poor’s Corporation or Aa or better from Xxxxx’x
Investors Service, Inc., (xi) money market funds that invest exclusively in
the
investments described in Subsections 5.07(i), (ii), (iii), (ix), (x) and (xii),
and/or (xii) tender bonds the payment of the principal of and interest on
which is fully supported by a letter of credit issued by a United States bank
whose long-term certificates of deposit are rated at least AA or the equivalent
thereof by Standard & Poor’s Corporation and AA or the equivalent thereof by
Xxxxx’x Investors Service, Inc.
SECTION
5.08. Negative
Pledge.
Neither
the Borrower nor any Consolidated Subsidiary will create, assume or suffer
to
exist any Lien on any asset now owned or hereafter acquired by it, except
Permitted Liens.
SECTION
5.09. Maintenance
of Existence.
The
Borrower shall, and shall cause each Subsidiary to, maintain its corporate
or
limited liability company existence and carry on its business in substantially
the same manner and in substantially the same fields as such business is now
carried on and maintained.
SECTION
5.10. Dissolution.
Neither
the Borrower nor any of its Subsidiaries shall suffer or permit dissolution
or
liquidation either in whole or in part or redeem or retire any shares of stock
of any Subsidiary, except through corporate reorganization to the extent
permitted by Section 5.11.
SECTION
5.11. Consolidations,
Mergers and Sales of Assets.
The
Borrower will not, nor will it permit any Subsidiary to, consolidate or merge
with or into, or sell, lease or otherwise transfer all or any substantial part
of its assets to, any other Person, or discontinue or
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eliminate
any business line or segment, provided
that the
Borrower may be involved in Permitted Consolidations, Mergers and Sales of
Assets.
SECTION
5.12. Use
of
Proceeds.
The
proceeds of the Loans will be used by the Borrower solely to (i) pay any fees
and expense with respect to this Agreement or the Loans, and (ii) provide
for the working capital and general corporate requirements of the Borrower.
No
portion of the proceeds of the Loans will be used by the Borrower or any
Subsidiary (i) in connection with, either directly or indirectly, any
tender offer for, or other acquisition of, stock of any corporation with a
view
towards obtaining control of such other corporation (other than a Permitted
Acquisition), (ii) directly or indirectly, for the purpose, whether
immediate, incidental or ultimate, of purchasing or carrying any Margin Stock,
or (iii) for any purpose in violation of any applicable law or
regulation.
SECTION
5.13. Compliance
with Laws; Payment of Taxes.
The
Borrower will, and will cause each of its Subsidiaries and each member of the
Controlled Group to, comply with applicable laws (including but not limited
to
ERISA), regulations and similar requirements of governmental authorities
(including but not limited to the PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate proceedings
diligently pursued. The Borrower will, and will cause each of its Subsidiaries
to, pay promptly when due all taxes, assessments, governmental charges, claims
for labor, supplies, rent and other obligations which, if unpaid, might become
a
lien against the property of the Borrower or any Subsidiary, except liabilities
being contested in good faith by appropriate proceedings diligently pursued
and
against which, if requested by the Agent, the Borrower shall have set up
reserves in accordance with GAAP.
SECTION
5.14. Insurance.
The
Borrower will maintain, and will cause each of its Subsidiaries to maintain
(either in the name of the Borrower or in such Subsidiary’s own name), with
financially sound and reputable insurance companies, insurance on all its
Property in at least such amounts and against at least such risks as are usually
insured against in the same general area by companies of established repute
engaged in the same or similar business.
SECTION
5.15. Change
in Fiscal Year.
The
Borrower will not change its Fiscal Year without the consent of the Required
Banks.
SECTION
5.16. Maintenance
of Property.
The
Borrower shall, and shall cause each Subsidiary to, maintain all of its
properties and assets in good condition, repair and working order, ordinary
wear
and tear excepted.
SECTION
5.17. Environmental
Notices.
The
Borrower shall furnish to the Banks and the Agent prompt written notice of
all
Environmental Liabilities, pending, threatened or anticipated Environmental
Proceedings, Environmental Notices, Environmental Judgments and Orders, and
Environmental Releases at, on, in, under or in any way affecting the Properties
or any adjacent property, and all facts, events, or conditions that could lead
to any of the foregoing.
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SECTION
5.18. Environmental
Matters.
The
Borrower and its Subsidiaries will not, and will not permit any Third Party
to,
use, produce, manufacture, process, treat, recycle, generate, store, dispose
of,
manage at, or otherwise handle or ship or transport to or from the Properties
any Hazardous Materials except for Hazardous Materials such as cleaning
solvents, pesticides and other similar materials used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed, managed or otherwise
handled in minimal amounts in the ordinary course of business in compliance
with
all applicable Environmental Requirements.
SECTION
5.19. Environmental
Release.
The
Borrower agrees that upon the occurrence of an Environmental Release at or
on
any of the Properties it will act immediately to investigate the extent of,
and
to take appropriate remedial action to eliminate, such Environmental Release,
whether or not ordered or otherwise directed to do so by any Environmental
Authority.
SECTION
5.20. Joint
Ventures/Partnerships.
Except
for Company Owned Restaurants and Development Joint Ventures, the Borrower
shall
not become a general partner in any general or limited partnership or joint
venture, or permit any of its Subsidiaries to do so, other than any Subsidiary
that is a corporation and the sole assets of which consist of its interest
in
such partnership or joint venture.
SECTION
5.21. Transactions
with Affiliates.
Neither
the Borrower nor any of its Subsidiaries shall enter into, or be a party to,
any
transaction with any Affiliate of the Borrower or such Subsidiary (which
Affiliate is not the Borrower or a Subsidiary), except as permitted by law
and
in the ordinary course of business and pursuant to reasonable terms which are
fully disclosed to the Agent and the Banks, consented to in writing by the
Required Banks, and are no less favorable to Borrower or such Subsidiary than
would be obtained in a comparable arm’s length transaction with a Person which
is not an Affiliate.
SECTION
5.22. Subsidiaries.
(a) The
Borrower shall cause any Person which becomes a Material Domestic Subsidiary
after the Closing Date to become a party to, and agree to be bound by the terms
of, the Guaranty pursuant to an instrument in form and substance satisfactory
to
the Agent executed and delivered to the Agent within ten (10) Domestic Business
Days after the day on which such Person became a Material Domestic Subsidiary.
The Borrower shall also cause the items specified in Section 3.01(c) and (f)
to
be delivered to the Agent concurrently with the instrument referred to above,
modified appropriately to refer to such instrument and such Material Domestic
Subsidiary.
(b) Once
any
Subsidiary becomes a Material Domestic Subsidiary and therefore becomes a party
to the Guaranty in accordance with Section 3.01(g) or Section 5.22(a) such
Material Domestic Subsidiary (including, without limitation, all initial
Material Domestic Subsidiaries) thereafter shall remain a party to the Guaranty,
even if such Subsidiary thereafter ceases to be a Material Domestic Subsidiary;
provided that if a Material Domestic Subsidiary ceases to be a Subsidiary of
the
Borrower as a result of the Borrower’s transfer or sale of one hundred percent
(100%) of the capital stock of such Subsidiary in accordance with and to
the
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extent
permitted by the terms of Section 5.11, the Agent and the Banks agree to release
such Subsidiary from the Guaranty.
SECTION
5.23. Acquisitions.
The
Borrower will not, nor will it permit any Subsidiary to purchase, lease or
otherwise acquire (in a single transaction or in a series of transactions),
directly or indirectly: (i) all or any substantial part of the assets or stock
of any other Person; (ii) a business line or segment of any other Person; or
(iii) control of any other Person, unless such purchase, lease or acquisition
constitutes a Permitted Acquisition.
SECTION
5.24. Permitted
Securitizations.
The
Borrower will not, and will not permit any of its Subsidiaries to, enter into
or
consummate any financing program providing for the sale or transfer of
Securitization Assets by the Borrower or any Subsidiary unless such financing
program constitutes a “Permitted Securitization” as defined in Section
1.01.
SECTION
5.25. Restrictions
Affecting Subsidiaries.
The
Borrower will not create, incur, permit or suffer to exist any agreement or
other arrangement that prohibits, restricts or imposes any condition upon the
ability or right of any Subsidiary to pay dividends or other distributions
with
respect to any shares of its capital stock or to make or repay loans or advances
to the Borrower or any other Subsidiary; provided
that the
foregoing shall not apply to restrictions or conditions imposed by
law.
SECTION
5.26. Limitation
on Priority Debt.
The
Borrower shall not permit the outstanding principal amount of Priority Debt
to
exceed, in the aggregate, more than 10% of Consolidated Net Worth at any
time.
ARTICLE
VI
DEFAULTS
SECTION
6.01. Events
of Default.
If one
or more of the following events (“Events of Default”) shall have occurred and be
continuing:
(a) the
Borrower shall fail to pay when due any principal of any Loan or shall fail
to
pay any interest on any Loan within five Domestic Business Days after such
interest shall become due, or shall fail to pay any fee or other amount payable
hereunder within five Domestic Business Days after such fee or other amount
becomes due; or
(b) the
Borrower or any Subsidiary shall fail to observe or perform any covenant
contained in Sections 5.02(ii), 5.03 to 5.12, inclusive, or Section 5.15 or
5.20
to 5.26, inclusive; or
(c) any
Loan
Party shall fail to observe or perform any covenant or agreement contained
or
incorporated by reference in any Loan Document (other than those covered by
clause (a) or (b) above) for thirty days after the earlier of (i) the first
day
on which such Loan
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Party
has
knowledge of such failure or (ii) written notice thereof has been given to
the
Borrower by the Agent at the request of any Bank; or
(d) any
representation, warranty, certification or statement made or deemed made by
any
Loan Party in any Loan Document or in any certificate, financial statement
or
other document delivered pursuant to any Loan Document shall prove to have
been
incorrect or misleading in any material respect when made (or deemed made);
or
(e) the
Borrower or any Subsidiary shall fail to make any payment in respect of Debt
outstanding (other than the Notes) in an aggregate principal amount in excess
of
$10,000,000 when due or within any applicable grace period; or
(f) any
event
or condition shall occur which results in the acceleration of the maturity
of
Debt outstanding of the Borrower or any Subsidiary in an aggregate principal
amount in excess of $10,000,000 or the mandatory prepayment or purchase of
such
Debt by the Borrower (or its designee) or such Subsidiary (or its designee)
prior to the scheduled maturity thereof, or enables (or, with the giving of
notice or lapse of time or both, would enable) the holders of such Debt or
any
Person acting on such holders’ behalf to accelerate the maturity thereof or
require the mandatory prepayment or purchase thereof prior to the scheduled
maturity thereof, without regard to whether such holders or other Person shall
have exercised or waived their right to do so; or
(g) the
Borrower, any Loan Party or any Subsidiary shall commence a voluntary case
or
other proceeding seeking liquidation, reorganization or other relief with
respect to itself or its debts under any bankruptcy, insolvency or other similar
law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, or shall consent to any such relief or to
the
appointment of or taking possession by any such official in an involuntary
case
or other proceeding commenced against it, or shall make a general assignment
for
the benefit of creditors, or shall fail generally, or shall admit in writing
its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(h) an
involuntary case or other proceeding shall be commenced against the Borrower,
any Loan Party or any Subsidiary seeking liquidation, reorganization or other
relief with respect to it or its debts under any bankruptcy, insolvency or
other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60 days; or an order
for
relief shall be entered against the Borrower, any other Loan Party or any
Subsidiary under the federal bankruptcy laws as now or hereafter in effect;
or
(i) the
Borrower or any member of the Controlled Group shall fail to pay when due any
material amount which it shall have become liable to pay to the PBGC or to
a
Plan under Title IV of ERISA; or notice of intent to terminate a Plan or Plans
shall be filed under Title IV of ERISA by the Borrower, any member of the
Controlled Group, any plan administrator
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or
any
combination of the foregoing; or the PBGC shall institute proceedings under
Title IV of ERISA to terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be instituted by
a
fiduciary of any such Plan or Plans to enforce Section 515 or 4219(c)(5) of
ERISA and such proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which the PBGC would
be
entitled to obtain a decree adjudicating that any such Plan or Plans must
be
terminated; or
(j) one
or
more judgments or orders for the payment of money in an aggregate amount in
excess of $500,000 shall be rendered against the Borrower or any Subsidiary
and
such judgment or order shall continue unsatisfied and unstayed for a period
of
30 days; or
(k) a
federal
tax lien shall be filed against the Borrower or any Subsidiary under
Section 6323 of the Code or a lien of the PBGC shall be filed against the
Borrower or any Subsidiary under Section 4068 of ERISA and in either case
such lien shall remain undischarged for a period of 25 days after the date
of filing; or
(l) (i) any
Person or two or more Persons acting in concert shall have acquired beneficial
ownership (within the meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 30% or more of the
outstanding shares of the voting stock of the Borrower; or (ii) as of any date
a
majority of the Board of Directors of the Borrower consists of individuals
who
were not either (A) directors of the Borrower as of the corresponding date
of
the previous year, (B) selected or nominated to become directors by the
Board of Directors of the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to become directors
by the Board of Directors of the Borrower of which a majority consisted of
individuals described in clause (A) and individuals described in clause (B);
or
(m) if
any
provision of this Agreement, any Note, the Guaranty or the Indemnity Subrogation
and Contribution Agreement shall for any reason cease to be valid and binding
on
any Loan Party, or any Loan Party shall deny or disaffirm its obligations
thereunder; or
(n) any
event
of default shall occur and be continuing under the Guaranty and such event
of
default continues beyond any applicable cure or grace period provided
therein.
then,
and
in every such event, the Agent shall (i) if requested by the Required
Banks, by notice to the Borrower terminate the Commitments and they shall
thereupon terminate, (ii) if requested by the Swing Line Lender, by notice
to
the Borrower terminate the Swing Line facility set forth in Section 2.14, and
(iii) if requested by the Required Banks, by notice to the Borrower declare
the
Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents to be, and the Notes (together
with
all accrued interest thereon) and all other amounts payable hereunder and under
the other Loan Documents shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower; provided
that if
any Event of Default specified in clause (g) or (h) above occurs with respect
to
the Borrower, without any notice to the
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Borrower,
any Guarantor or any other act by the Agent or the Banks, the Commitments and
the Swing Line facility set forth in Section 2.14 shall thereupon automatically
terminate and the Notes (together with accrued interest thereon) and all other
amounts payable hereunder and under the other Loan Documents shall automatically
become immediately due and payable without presentment, demand, protest or
other
notice of any kind, all of which are hereby waived by the Borrower.
Notwithstanding the foregoing, the Agent shall have available to it all other
remedies at law or equity, and shall exercise any one or all of them at the
request of the Required Banks.
SECTION
6.02. Notice
of Default.
The
Agent shall give notice to the Borrower of any Default under
Section 6.01(c) promptly upon being requested to do so by any Bank and
shall thereupon notify all the Banks thereof.
ARTICLE
VII
THE
AGENT
SECTION
7.01. Appointment,
Powers and Immunities.
Each
Bank hereby irrevocably appoints and authorizes the Agent to act as its agent
hereunder and under the other Loan Documents with such powers as are
specifically delegated to the Agent by the terms hereof and thereof, together
with such other powers as are reasonably incidental thereto. The Agent: (a)
shall have no duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason of this
Agreement or any other Loan Document be a trustee for any Bank; (b) shall not
be
responsible to the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by
any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement
or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms
and
conditions satisfactory to the Agent, and (d) shall not be responsible for
any
action taken or omitted to be taken by it hereunder or under any other Loan
Document or any other document or instrument referred to or provided for herein
or therein or in connection herewith or therewith, except for its own gross
negligence or willful misconduct. The Agent may employ agents and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable care.
The
provisions of this Article VII are solely for the benefit of the Agent and
the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Agent shall act solely
as
agent of the Banks and does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and administrative in
nature, and the Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Bank.
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SECTION
7.02. Reliance
by Agent.
The
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telefax, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by
or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants or other experts selected by the Agent.
As to any matters not expressly provided for by this Agreement or any other
Loan
Document, the Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with instructions
signed by the Required Banks, and such instructions of the Required Banks in
any
action taken or failure to act pursuant thereto shall be binding on all of
the
Banks.
SECTION
7.03. Defaults.
The
Agent shall not be deemed to have knowledge of the occurrence of a Default
or an
Event of Default (other than the non-payment of principal of or interest on
the
Loans) unless the Agent has received notice from a Bank or the Borrower
specifying such Default or Event of Default and stating that such notice is
a
“Notice of Default”. In the event that the Agent receives such a notice of the
occurrence of a Default or an Event of Default, the Agent shall give prompt
notice thereof to the Banks. The Agent shall give each Bank prompt notice of
each non-payment of principal of or interest on the Loans, whether or not it
has
received any notice of the occurrence of such non-payment. The Agent shall
(subject to Section 9.05) take such action with respect to such Default or
Event
of Default as shall be directed by the Required Banks, provided that, unless
and
until the Agent shall have received such directions, the Agent may (but shall
not be obligated to) take such action, or refrain from taking such action,
with
respect to such Default or Event of Default as it shall deem advisable in the
best interests of the Banks.
SECTION
7.04. Rights
of Agent and its Affiliates as a Bank.
With
respect to any Loan made by Wachovia or an Affiliate of Wachovia, such Affiliate
and Wachovia in their capacity as a Bank hereunder shall have the same rights
and powers hereunder as any other Bank and may exercise the same as though
it
were not an Affiliate of Wachovia (or in Wachovia’s case, acting as the Agent),
and the term “Bank” or “Banks” shall, unless the context otherwise indicates,
include such Affiliate of Wachovia or Wachovia in its individual capacity.
Such
Affiliate and Wachovia may (without having to account therefor to any Bank)
accept deposits from, lend money to and generally engage in any kind of banking,
trust or other business with the Borrower (and any of its Affiliates) as if
they
were not an Affiliate of the Agent or the Agent, respectively; and such
Affiliate and Wachovia may accept fees and other consideration from the Borrower
(in addition to any agency fees and arrangement fees heretofore agreed to
between the Borrower and Wachovia) for services in connection with this
Agreement or any other Loan Document or otherwise without having to account
for
the same to the Banks.
SECTION
7.05. Indemnification.
Each
Bank severally agrees to indemnify the Agent, to the extent the Agent shall
not
have been reimbursed by the Borrower, ratably in accordance with its Commitment,
for any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind and nature whatsoever which
may
be imposed on, incurred by or asserted against the Agent in any way relating
to
or arising out of this Agreement or any other Loan Document or any other
documents contemplated by or referred to
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herein
or
therein or the transactions contemplated hereby or thereby (excluding, unless
an
Event of Default has occurred and is continuing, the normal administrative
costs
and expenses incident to the performance of its agency duties hereunder)
or the
enforcement of any of the terms hereof or thereof or any such other documents;
provided,
however,
that no
Bank shall be liable for any of the foregoing to the extent they arise from
the
gross negligence or willful misconduct of the Agent. If any indemnity furnished
to the Agent for any purpose shall, in the opinion of the Agent, be insufficient
or become impaired, the Agent may call for additional indemnity and cease,
or
not commence, to do the acts indemnified against until such additional indemnity
is furnished.
SECTION
7.06. CONSEQUENTIAL
DAMAGES.
THE
AGENT SHALL NOT BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER
PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH
MAY
BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY
OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION
7.07. Payee
of Note Treated as Owner.
The
Agent may deem and treat the payee of any Note as the owner thereof for all
purposes hereof unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent and the provisions of Section
9.07(c) have been satisfied. Any requests, authority or consent of any Person
who at the time of making such request or giving such authority or consent
is
the holder of any Note shall be conclusive and binding on any subsequent holder,
transferee or assignee of that Note or of any Note or Notes issued in exchange
therefor or replacement thereof. Each Bank acknowledges that each Person
designated as an “Arranger,” a “Documentation Agent” or a “Syndication Agent”
shall have no right, duty or responsibility, and shall incur no liability under
this Agreement or any other Loan Document in its capacity as an “Arranger,” a
“Documentation Agent” or a “Syndication Agent.”
SECTION
7.08. Non-Reliance
on Agent and Other Banks.
Each
Bank agrees that it has, independently and without reliance on the Agent or
any
other Bank, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Borrower and decision to enter
into this Agreement and that it will, independently and without reliance upon
the Agent or any other Bank, and based on such documents and information as
it
shall deem appropriate at the time, continue to make its own analysis and
decisions in taking or not taking action under this Agreement or any of the
other Loan Documents. The Agent shall not be required to keep itself (or any
Bank) informed as to the performance or observance by the Borrower of this
Agreement or any of the other Loan Documents or any other document referred
to
or provided for herein or therein or to inspect the properties or books of
the
Borrower or any other Person. Except for notices, reports and other documents
and information expressly required to be furnished to the Banks by the Agent
hereunder or under the other Loan Documents, the Agent shall not have any duty
or responsibility to provide any Bank with any credit or other information
concerning the affairs, financial condition or business of the Borrower or
any
other Person (or any of their Affiliates) which may come into the possession
of
the Agent.
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SECTION
7.09. Failure
to Act.
Except
for action expressly required of the Agent hereunder or under the other Loan
Documents, the Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Banks of their indemnification obligations
under Section 7.05 against any and all liability and expense which may be
incurred by the Agent by reason of taking, continuing to take, or failing to
take any such action.
SECTION
7.10. Resignation
or Removal of Agent.
Subject
to the appointment and acceptance of a successor Agent as provided below, the
Agent may resign at any time by giving notice thereof to the Banks and the
Borrower and the Agent may be removed at any time with or without cause by
the
Required Banks. Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent. If no successor Agent shall have
been so appointed by the Required Banks and shall have accepted such appointment
within 30 days after the retiring Agent’s notice of resignation or the Required
Banks’ removal of the retiring Agent, then the retiring Agent may, on behalf of
the Banks, appoint a successor Agent. Any successor Agent shall be a bank which
has a combined capital and surplus of at least $500,000,000. Upon the acceptance
of any appointment as Agent hereunder by a successor Agent, such successor
Agent
shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Agent, and the retiring Agent shall be
discharged from its duties and obligations hereunder. After any retiring Agent’s
resignation or removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any actions taken or
omitted to be taken by it while it was acting as the Agent
hereunder.
ARTICLE
VIII
CHANGE
IN
CIRCUMSTANCES; COMPENSATION
SECTION
8.01. Basis
for Determining Interest Rate Inadequate or Unfair.
If on
or prior to the first day of any Interest Period:
(a) the
Agent
determines that deposits in Dollars (in the applicable amounts) are not being
offered in the relevant market for such Interest Period, or
(b) the
Required Banks advise the Agent that the London Interbank Offered Rate as
determined by the Agent will not adequately and fairly reflect the cost to
such
Banks of funding the relevant type of Euro-Dollar Loans for such Interest
Period,
the
Agent
shall forthwith give notice thereof to the Borrower and the Banks, whereupon
until the Agent notifies the Borrower that the circumstances giving rise to
such
suspension no longer exist, the obligations of the Banks to make the type of
Euro-Dollar Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days before the date
of
any Euro-Dollar Borrowing for which a Notice of Borrowing has previously been
given that it elects not to borrow on such date, such borrowing shall instead
be
made as a Base Rate Borrowing.
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SECTION
8.02. Illegality.
If,
after the date hereof, the adoption of any applicable law, rule or regulation,
or any change in any existing or future law, rule or regulation, or any change
in the interpretation or administration thereof by any governmental authority,
central bank or comparable agency charged with the interpretation or
administration thereof (any such authority, bank or agency being referred to
as
an “Authority” and any such event being referred to as a “Change of Law”), or
compliance by any Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority shall make it unlawful
or impossible for any Bank (or its Lending Office) to make, maintain or fund
its
Euro-Dollar Loans and such Bank shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Banks and the Borrower, whereupon
until such Bank notifies the Borrower and the Agent that the circumstances
giving rise to such suspension no longer exist, the obligation of such Bank
to
make Euro-Dollar Loans shall be suspended. Before giving any notice to the
Agent
pursuant to this Section, such Bank shall designate a different Lending Office
if such designation will avoid the need for giving such notice and will not,
in
the judgment of such Bank, be otherwise disadvantageous to such Bank. If such
Bank shall determine that it may not lawfully continue to maintain and fund
any
of its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon and any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base
Rate
Loan.
SECTION
8.03. Increased
Cost and Reduced Return.
(a) If
after the date hereof, a Change of Law or compliance by any Bank (or its Lending
Office) with any request or directive (whether or not having the force of law)
of any Authority:
(i) shall
subject any Bank (or its Lending Office) to any tax, duty or other charge with
respect to its Euro-Dollar Loans, its Notes or its obligation to make
Euro-Dollar Loans, or shall change the basis of taxation of payments to any
Bank
(or its Lending Office) of the principal of or interest on its Euro-Dollar
Loans
or any other amounts due under this Agreement in respect of its Euro-Dollar
Loans or its obligation to make Euro-Dollar Loans (except for changes in the
rate of tax on the overall net income of such Bank or its Lending Office imposed
by the jurisdiction in which such Bank’s principal executive office or Lending
Office is located); or
(ii) shall
impose, modify or deem applicable any reserve, special deposit or similar
requirement (including, without limitation, any such requirement imposed by
the
Board of Governors of the Federal Reserve System, but excluding with respect
to
any Euro-Dollar Loan any such requirement included in an applicable Euro-Dollar
Reserve Percentage) against assets of, deposits with or for the account of,
or
credit extended by, any Bank (or its Lending Office); or
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(iii) shall
impose on any Bank (or its Lending Office) or on the London interbank market
any
other condition affecting its Euro-Dollar Loans, its Notes or its obligation
to
make Euro-Dollar Loans;
and
the
result of any of the foregoing is to increase the cost to such Bank (or its
Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the
amount of any sum received or receivable by such Bank (or its Lending Office)
under this Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within 15 days after demand by
such Bank (with a copy to the Agent), the Borrower shall pay to such Bank such
additional amount or amounts as will compensate such Bank for such increased
cost or reduction.
(b) If
any
Bank shall have determined that after the date hereof the adoption of any
applicable law, rule or regulation regarding capital adequacy, or any change
in
any existing or future law, rule or regulation, or any change in the
interpretation or administration thereof, or compliance by any Bank (or its
Lending Office) with any request or directive regarding capital adequacy
(whether or not having the force of law) of any Authority, has or would have
the
effect of reducing the rate of return on such Bank’s capital as a consequence of
its obligations hereunder to a level below that which such Bank could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank’s policies with respect to capital adequacy) by an amount deemed by
such Bank to be material, then from time to time, within 15 days after
demand by such Bank, the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction.
(c) Each
Bank
will promptly notify the Borrower and the Agent of any event of which it has
knowledge, occurring after the date hereof, which will entitle such Bank to
compensation pursuant to this Section and will designate a different Lending
Office if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the judgment of such Bank, be otherwise
disadvantageous to such Bank. A certificate of any Bank claiming compensation
under this Section and setting forth the additional amount or amounts to be
paid
to it hereunder shall be conclusive in the absence of manifest error. In
determining such amount, such Bank may use any reasonable averaging and
attribution methods.
(d) The
provisions of this Section 8.03 shall be applicable with respect to any
Participant, Assignee or other Transferee, and any calculations required by
such
provisions shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION
8.04. Base
Rate Loans Substituted for Euro-Dollar Loans.
If
(i) the obligation of any Bank to make or maintain Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least 5
Euro-Dollar Business Days’ prior notice to such Bank through the Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
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(a) all
Loans
which would otherwise be made by such Bank as Euro-Dollar Loans shall be made
instead as Base Rate Loans (in all cases interest and principal on such Loans
shall be payable contemporaneously with the related Euro-Dollar Loans of the
other Banks), and
(b) after
each of its Euro-Dollar Loans has been repaid, all payments of principal which
would otherwise be applied to repay such Euro-Dollar Loans shall be applied
to
repay its Base Rate Loans instead.
In
the
event that the Borrower shall elect that the provisions of this Section shall
apply to any Bank, the Borrower shall remain liable for, and shall pay to such
Bank as provided herein, all amounts due such Bank under Section 8.03 in respect
of the period preceding the date of conversion of such Bank’s Loans resulting
from the Borrower’s election.
SECTION
8.05. Compensation.
Upon
the request of any Bank, delivered to the Borrower and the Agent, the Borrower
shall pay to such Bank such amount or amounts as shall compensate such Bank
for
any loss, cost or expense incurred by such Bank as a result of:
(a) any
payment or prepayment (pursuant to Section 2.10, Section 2.11, Section 8.02
or
otherwise) of a Euro-Dollar Loan or a Money Market Loan on a date other than
the
last day of an Interest Period for such Euro-Dollar Loan or Money Market Loan,
as the case may be;
(b) any
failure by the Borrower to prepay a Euro-Dollar Loan or a Money Market Loan
on
the date for such prepayment specified in the relevant notice of prepayment
hereunder;
(c) any
failure by the Borrower to borrow a Euro-Dollar Loan on the date for the
Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part specified in
the
applicable Notice of Borrowing delivered pursuant to Section 2.02;
or
(d) any
failure by the Borrower to borrow a Money Market Loan (with respect to which
the
Borrower has accepted a Money Market Quote) on the date for the Money Market
Borrowing of which such Money Market Loan is a part specified in the applicable
Money Market Quote Request delivered pursuant to Section 2.03;
such
compensation to include, without limitation, an amount equal to the excess,
if
any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of
such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on (i) deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
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ARTICLE
IX
MISCELLANEOUS
SECTION
9.01. Notices; Effectiveness; Electronic Communication.
(a) Notices
Generally.
Except
in the case of notices and other communications expressly permitted to be given
by telephone (and except as provided in paragraph (b) below), all notices,
requests and other communications to any party hereunder shall be in writing
(including facsimile transmission or similar writing) and shall be given to
such
party at its address or telecopy number set forth on the signature pages hereof
or such other address or telecopy number as such party may hereafter specify
for
the purpose by notice to each other party. Notices sent by hand or overnight
courier service, or mailed by certified or registered mail, shall be deemed
to
have been given when received; notices sent by telecopier shall be deemed to
have been given when sent (except that, if not given during normal business
hours for the recipient, shall be deemed to have been given at the opening
of
business on the next business day for the recipient); provided
that
notices to the Agent under Article II or Article VIII shall not be
effective until received. Notices delivered through electronic communications
to
the extent provided in paragraph (b) below, shall be effective as provided
in
said paragraph (b).
(b) Electronic
Communications.
Notices
and other communications to the Banks hereunder may be delivered or furnished
by
electronic communication (including e-mail and Internet or intranet websites)
pursuant to procedures approved by the Agent; provided
that the
foregoing shall not apply to notices to any Bank pursuant to Article II or
Article VIII if such Bank, as applicable, has notified the Agent that it is
incapable of receiving notices under such Article by electronic communication.
The Agent or the Borrower may, in its discretion, agree to accept notices and
other communications to it hereunder by electronic communications pursuant
to
procedures approved by it; provided
that
approval of such procedures may be limited to particular notices or
communications.
Unless
the Agent otherwise prescribes, (i) notices and other communications sent to
an
e-mail address shall be deemed received upon the sender’s receipt of an
acknowledgement from the intended recipient (such as by the “return receipt
requested” function, as available, return e-mail or other written
acknowledgement); provided
that if
such notice or other communication is not sent during the normal business hours
of the recipient, such notice or communication shall be deemed to have been
sent
at the opening of business on the next business day for the recipient, and
(ii)
notices or communications posted to an internet or intranet website shall be
deemed received upon the deemed receipt by the intended recipient at its e-mail
address as described in the foregoing clause (i) of notification that such
notice or communication is available and identifying the website address
therefore.
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(c) Change
of Address, Etc.
Any
party hereto may change in address or telecopier number for notices and other
communications hereunder by notice to the other parties hereto.
SECTION
9.02. No
Waivers.
No
failure or delay by the Agent or any Bank in exercising any right, power or
privilege hereunder or under any Note or other Loan Document shall operate
as a
waiver thereof nor shall any single or partial exercise thereof preclude any
other or further exercise thereof or the exercise of any other right, power
or
privilege. The rights and remedies herein provided shall be cumulative and
not
exclusive of any rights or remedies provided by law.
SECTION
9.03. Expenses;
Documentary Taxes; Indemnification.
(a) The
Borrower shall pay (i) all out-of-pocket expenses of the Agent, including fees
and disbursements of special counsel for the Agent, in connection with the
preparation of this Agreement and the other Loan Documents, any waiver or
consent hereunder or thereunder or any amendment hereof or thereof or any
Default or alleged Default hereunder or thereunder and (ii) if a Default occurs,
all out-of-pocket expenses incurred by the Agent or any Bank, including fees
and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents.
(b) The
Borrower shall indemnify the Agent, the Arranger and each Bank against any
transfer taxes, documentary taxes, assessments or charges made by any Authority
by reason of the execution and delivery of this Agreement or the other Loan
Documents.
(c) The
Borrower shall indemnify the Agent, the Arranger, the Banks and each Affiliate
thereof and their respective directors, officers, employees and agents from,
and
hold each of them harmless against, any and all losses, liabilities, claims
or
damages to which any of them may become subject, insofar as such losses,
liabilities, claims or damages arise out of or result from any actual or
proposed use by the Borrower of the proceeds of any extension of credit by
any
Bank hereunder or breach by the Borrower of this Agreement or any other Loan
Document or from investigation, litigation (including, without limitation,
any
actions taken by the Agent or any of the Banks to enforce this Agreement or
any
of the other Loan Documents) or other proceeding (including, without limitation,
any threatened investigation or proceeding) relating to the foregoing, and
the
Borrower shall reimburse the Agent, the Arranger and each Bank, and each
Affiliate thereof and their respective directors, officers, employees and
agents, upon demand for any expenses (including, without limitation, legal
fees)
incurred in connection with any such investigation or proceeding; but excluding
any such losses, liabilities, claims, damages or expenses incurred by reason
of
the gross negligence or willful misconduct of the Person to be
indemnified.
SECTION
9.04. Setoffs;
Sharing of Set-Offs.
(a) The
Borrower hereby grants to each Bank, as security for the full and punctual
payment and performance of the obligations of the Borrower under this Agreement,
a continuing lien on and security interest in all deposits and other sums
credited by or due from such Bank to the Borrower or subject to withdrawal
by
the
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Borrower;
and regardless of the adequacy of any collateral or other means of obtaining
repayment of such obligations, each Bank may at any time upon or after the
occurrence of any Event of Default, and without notice to the Borrower, set
off
the whole or any portion or portions of any or all such deposits and other
sums
against such obligations, whether or not any other Person or Persons could
also
withdraw money therefrom.
(b) Each
Bank
agrees that if it shall, by exercising any right of set-off or counterclaim
or
otherwise, receive payment of a proportion of the aggregate amount of principal
and interest owing with respect to the Syndicated Notes held by it which is
greater than the proportion received by any other Bank in respect of the
aggregate amount of all principal and interest owing with respect to the
Syndicated Notes held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
Syndicated Notes held by the other Banks owing to such other Banks, and/or
such
other adjustments shall be made, as may be required so that all such payments
of
principal and interest with respect to the Syndicated Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided
that (i)
nothing in this Section shall impair the right of any Bank to exercise any
right
of set-off or counterclaim it may have and to apply the amount subject to such
exercise to the payment of indebtedness (including, without limitation, Money
Market Loans) of the Borrower other than its indebtedness under the Syndicated
Notes, and (ii) if all or any portion of such payment received by the purchasing
Bank is thereafter recovered from such purchasing Bank, such purchase from
each
other Bank shall be rescinded and such other Bank shall repay to the purchasing
Bank the purchase price of such participation to the extent of such recovery
together with an amount equal to such other Bank’s ratable share (according to
the proportion of (x) the amount of such other Bank’s required repayment to (y)
the total amount so recovered from the purchasing Bank) of any interest or
other
amount paid or payable by the purchasing Bank in respect of the total amount
so
recovered. The Borrower agrees, to the fullest extent it may effectively do
so
under applicable law, that any holder of a participation in a Syndicated Note,
whether or not acquired pursuant to the foregoing arrangements, may exercise
rights of set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
SECTION
9.05. Amendments
and Waivers.
(a) Any
provision of this Agreement, the Notes or any other Loan Documents may be
amended or waived if, but only if, such amendment or waiver is in writing and
is
signed by the Borrower and the Required Banks (and, if the rights or duties
of
the Agent are affected thereby, by the Agent); provided
that no
such amendment or waiver shall, unless signed by all the Banks, (i) change
the
Commitment of any Bank or subject any Bank to any additional obligation, (ii)
change the principal of or reduce the rate of interest on any Loan or any fees
hereunder or any of the Obligations (as defined in the Guaranty) under the
Guaranty, (iii) change the date fixed for any payment of principal of or
interest on any Loan or any fees hereunder or any of the Obligations (as defined
in the Guaranty) under the Guaranty, (iv) change the amount of principal, or
reduce the amount of interest or fees due on any date fixed for the payment
thereof under this Agreement, the Notes or any other Loan Documents, (v) change
the percentage of the Commitments or of the aggregate unpaid principal amount
of
the Notes, or the percentage of Banks, which shall be required for the Banks
or
any of them to take any action under this Section or any other provision of
this
Agreement or modify the
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definition
of Required Banks, (vi) change the manner of application of any payments
made under this Agreement, the Guaranty or the Notes, or (vii) release,
discharge or terminate any guaranty given to support payment of the Loans
(including without limitation the Guaranty); provided further that no such
amendment or waiver shall, unless signed by the Swing Line Lender, change
any
provision of this Agreement (including without limitation Section 2.14) relating
to the Swing Line Loans.
(b) The
Borrower will not solicit, request or negotiate for or with respect to any
proposed waiver or amendment of any of the provisions of this Agreement unless
each Bank shall be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the Borrower with
sufficient information to enable it to make an informed decision with respect
thereto. Executed or true and correct copies of any waiver or consent effected
pursuant to the provisions of this Agreement shall be delivered by the Borrower
to each Bank forthwith following the date on which the same shall have been
executed and delivered by the requisite percentage of Banks. The Borrower will
not, directly or indirectly, pay or cause to be paid any remuneration, whether
by way of supplemental or additional interest, fee or otherwise, to any Bank
(in
its capacity as such) as consideration for or as an inducement to the entering
into by such Bank of any waiver or amendment of any of the terms and provisions
of this Agreement unless such remuneration is concurrently paid, on the same
terms, ratably to all such Banks.
SECTION
9.06. Margin
Stock Collateral.
Each of
the Banks represents to the Agent and each of the other Banks that it in good
faith is not, directly or indirectly (by negative pledge or otherwise), relying
upon any Margin Stock as collateral in the extension or maintenance of the
credit provided for in this Agreement.
SECTION
9.07. Successors
and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any
Bank
may at any time sell to one or more Persons (each a “Participant”) participating
interests in any Loan owing to such Bank, any Note held by such Bank, any
Commitment hereunder or any other interest of such Bank hereunder. In the event
of any such sale by a Bank of a participating interest to a Participant, such
Bank’s obligations under this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank shall remain
the holder of any such Note for all purposes under this Agreement, and the
Borrower and the Agent shall continue to deal solely and directly with such
Bank
in connection with such Bank’s rights and obligations under this Agreement. In
no event shall a Bank that sells a participation be obligated to the Participant
to take or refrain from taking any action hereunder except that such Bank may
agree that it will not (except as provided below), without the consent of the
Participant, agree to (i) the change of any date fixed for the payment of
principal of or interest on the related Loan or Loans, (ii) the change of the
amount of any principal, or the reduction of any interest or fees due on any
date fixed for the payment thereof with respect to the related Loan or Loans,
(iii) the change of the principal of the related
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Loan
or
Loans, (iv) any reduction in the rate at which either interest is payable
thereon or (if the Participant is entitled to any part thereof) commitment
fee
is payable hereunder from the rate at which the Participant is entitled to
receive interest or commitment fee (as the case may be) in respect of such
participation, (v) the release or substitution of all or any substantial
part of any Collateral held as security for the Loans, or (vi) the release
of
any guaranty given to support payment of the Loans. Each Bank selling a
participating interest in any Loan, Note, Commitment or other interest under
this Agreement shall, within 10 Domestic Business Days of such sale, provide
the
Borrower and the Agent with written notification stating that such sale has
occurred and identifying the Participant and the interest purchased by such
Participant. The Borrower agrees that each Participant shall be entitled
to the
benefits of Article VIII with respect to its participation in Loans
outstanding from time to time.
(c) Any
Bank
may at any time assign to one or more banks or financial institutions (each
an
“Assignee”) all, or a proportionate part of all, of its rights and obligations
under this Agreement, the Notes and the other Loan Documents, and such Assignee
shall assume all such rights and obligations, pursuant to an Assignment and
Acceptance in the form attached hereto as Exhibit
J,
executed by such Assignee, such transferor Bank and the Agent (and, in the
case
of: (i) an Assignee that is not then a Bank or an Affiliate of a Bank; and
(ii)
an assignment not made during the existence of a Default or an Event of Default,
by the Borrower); provided that (i) no interest may be sold by a Bank
pursuant to this paragraph (c) unless the Assignee shall agree to assume ratably
equivalent portions of the transferor Bank’s Commitment, (ii) the amount of
the Commitment being assigned pursuant to such assignment shall be equal to
$10,000,000 (or any larger multiple of $1,000,000) (except that any such
assignment may be in the aggregate amount of the Commitment of the transferor
Bank), (iii) no interest may be sold by a Bank pursuant to this paragraph
(c) to any Assignee that is not then a Bank or an Affiliate of a Bank without
the consent of the Borrower, which consent shall not be unreasonably withheld,
provided that the Borrower’s consent shall not be necessary with respect to any
assignment made during the existence of a Default or an Event of Default;
(iv) a Bank may not have more than two (2) Assignees that are not then
Banks (or affiliates of a Bank) at any one time, and (v) no interest may be
sold
by a Bank pursuant to this paragraph (c) to any Assignee that is not then a
Bank
or an Affiliate of a Bank, without the consent of the Agent, which consent
shall
not be unreasonably withheld, provided, that although the Agent’s consent may
not be necessary with respect to an Assignee that is then a Bank or an Affiliate
of a Bank, no such assignment shall be effective until the conditions set forth
in the following sentence are satisfied. Upon (A) execution of the
Assignment and Acceptance by such transferor Bank, such Assignee, the Agent
and
(if applicable) the Borrower, (B) delivery of an executed copy of the
Assignment and Acceptance to the Borrower and the Agent, (C) payment by
such Assignee to such transferor Bank of an amount equal to the purchase price
agreed between such transferor Bank and such Assignee, and (D) payment to the
Agent by the assigning Bank of a processing and recordation fee of $1,000,
if
the assignee is then a Bank or affiliate of a Bank or $3,500 if the assignee
is
not then a Bank or an affiliate of a Bank, such Assignee shall for all purposes
be a Bank party to this Agreement and shall have all the rights and obligations
of a Bank under this Agreement (including, without limitation, the rights of
a
Bank under Section 2.03) to the same extent as if it were an original party
hereto with a Commitment as set forth in such instrument of assumption, and
the
transferor Bank shall be released from its obligations hereunder to a
corresponding extent, and no further
WCSR
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consent
or action by the Borrower, the Banks or the Agent shall be required. Upon
the
consummation of any transfer to an Assignee pursuant to this paragraph (c),
the
transferor Bank, the Agent and the Borrower shall make appropriate arrangements
so that, if required, a new Note is issued to each of such Assignee and such
transferor Bank.
(d) Subject
to the provisions of Section 9.08, the Borrower authorizes each Bank to
disclose to any Participant, Assignee or other transferee (each a “Transferee”)
and any prospective Transferee any and all financial and other information
in
such Bank’s possession concerning the Borrower which has been delivered to such
Bank by the Borrower pursuant to this Agreement or which has been delivered
to
such Bank by the Borrower in connection with such Bank’s credit evaluation prior
to entering into this Agreement.
(e) No
Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive
with respect to the rights transferred, unless such transfer is made with the
Borrower’s prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different Lending
Office under certain circumstances or at a time when the circumstances giving
rise to such greater payment did not exist.
(f) Anything
in this Section 9.07 to the contrary notwithstanding, any Bank may assign and
pledge all or any portion of the Loans and/or obligations owing to it to any
Federal Reserve Bank or the United States Treasury as collateral security
pursuant to Regulation A of the Board of Governors of the Federal Reserve System
and Operating Circular issued by such Federal Reserve Bank, provided that any
payment in respect of such assigned Loans and/or obligations made by the
Borrower to the assigning and/or pledging Bank in accordance with the terms
of
this Agreement shall satisfy the Borrower’s obligations hereunder in respect of
such assigned Loans and/or obligations to the extent of such payment. No such
assignment shall release the assigning and/or pledging Bank from its obligations
hereunder.
SECTION
9.08. Confidentiality.
Each
Bank agrees to exercise its best efforts to keep any information delivered
or
made available by the Borrower to it which is clearly indicated to be
confidential information, confidential from anyone other than persons employed
or retained by such Bank who are or are expected to become engaged in
evaluating, approving, structuring or administering the Loans; provided,
however,
that
nothing herein shall prevent any Bank from disclosing such information (i)
to
any other Bank, (ii) upon the order of any court or administrative agency,
(iii)
upon the request or demand of any regulatory agency or authority having
jurisdiction over such Bank, (iv) which has been publicly disclosed, (v) to
the
extent reasonably required in connection with any litigation to which the Agent,
any Bank or their respective Affiliates may be a party, (vi) to the extent
reasonably required in connection with the exercise of any remedy hereunder,
(vii) to such Bank’s legal counsel, Affiliates and independent auditors and
(viii) to any actual or proposed Participant, Assignee or other Transferee
of
all or part of its rights hereunder which has agreed in writing to be bound
by
the provisions of this Section 9.08.
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SECTION
9.09. Representation
by Banks.
Each
Bank hereby represents that it is a commercial lender or financial institution
which makes loans in the ordinary course of its business and that it will make
its Loans hereunder for its own account in the ordinary course of such business;
provided,
however,
that,
subject to Section 9.07, the disposition of the Note or Notes held by that
Bank
shall at all times be within its exclusive control.
SECTION
9.10. Obligations
Several.
The
obligations of each Bank hereunder are several, and no Bank shall be responsible
for the obligations or commitment of any other Bank hereunder. Nothing contained
in this Agreement and no action taken by the Banks pursuant hereto shall be
deemed to constitute the Banks to be a partnership, an association, a joint
venture or any other kind of entity. The amounts payable at any time hereunder
to each Bank shall be a separate and independent debt, and each Bank shall
be
entitled to protect and enforce its rights arising out of this Agreement or
any
other Loan Document and it shall not be necessary for any other Bank to be
joined as an additional party in any proceeding for such purpose.
SECTION
9.11. Survival
of Certain Obligations.
Sections 8.03(a), 8.03(b), 8.05 and 9.03, and the obligations of the
Borrower thereunder, shall survive, and shall continue to be enforceable
notwithstanding, the termination of this Agreement and the Commitments and
the
payment in full of the principal of and interest on all Loans.
SECTION
9.12. North
Carolina.
This
Agreement and each Note shall be construed in accordance with and governed
by
the law of the State of North Carolina.
SECTION
9.13. Severability.
In case
any one or more of the provisions contained in this Agreement, the Notes or
any
of the other Loan Documents should be invalid, illegal or unenforceable in
any
respect, the validity, legality and enforceability of the remaining provisions
contained herein and therein shall not in any way be affected or impaired
thereby and shall be enforced to the greatest extent permitted by
law.
SECTION
9.14. Interest.
In no
event shall the amount of interest due or payable hereunder or under the Notes
exceed the maximum rate of interest allowed by applicable law, and in the event
any such payment is inadvertently made to any Bank by the Borrower or
inadvertently received by any Bank, then such excess sum shall be credited
as a
payment of principal, unless the Borrower shall notify such Bank in writing
that
it elects to have such excess sum returned forthwith. It is the express intent
hereof that the Borrower not pay and the Banks not receive, directly or
indirectly in any manner whatsoever, interest in excess of that which may
legally be paid by the Borrower under applicable law.
SECTION
9.15. Interpretation.
No
provision of this Agreement or any of the other Loan Documents shall be
construed against or interpreted to the disadvantage of any party hereto by
any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured or dictated such provision.
WCSR
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62
SECTION
9.16. Waiver
of Jury Trial; Consent to Jurisdiction.
The
Borrower (a) and each of the Banks and the Agent irrevocably waives, to the
fullest extent permitted by law, any and all right to trial by jury in any
legal
proceeding arising out of this Agreement, any of the other Loan Documents,
or
any of the transactions contemplated hereby or thereby, (b) submits to personal
jurisdiction in the State of North Carolina, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this Agreement,
the Notes and the other Loan Documents, (c) waives any and all personal rights
under the law of any jurisdiction to object on any basis (including, without
limitation, inconvenience of forum) to jurisdiction or venue within the State
of
North Carolina for the purpose of litigation to enforce this Agreement, the
Notes or the other Loan Documents, and (d) agrees that service of process may
be
made upon it in the manner prescribed in Section 9.01 for the giving of notice
to the Borrower. Nothing herein contained, however, shall: (i) prevent the
Agent
from bringing any action or exercising any rights against any security and
against the Borrower personally, and against any assets of the Borrower, within
any other state or jurisdiction; or (ii) affect the right to serve legal process
in any other manner permitted by law.
SECTION
9.17. Counterparts.
This
Agreement may be signed in any number of counterparts, each of which shall
be an
original, with the same effect as if the signatures thereto and hereto were
upon
the same instrument.
SECTION
9.18. Florida
Taxes.
In
connection with this transaction there may or may not be due certain documentary
stamp taxes and/or intangible taxes imposed by the State of Florida (the
“Florida Taxes”). In addition to (and not in limitation of) the indemnification
with respect to tax liabilities set forth herein, the Borrower agrees to
indemnify the Agent, the Arranger and each Bank, their directors, officers,
agents and employees from and against any and all liability, damage, loss,
cost,
expense or reasonable attorney fees which may accrue to or be sustained by
the
Agent, the Arranger, a Bank or their directors, officers, agents or employees
on
account of or arising from any claim or action raised by, filed or brought
by or
in the name of any Florida governmental or administrative department with
respect to non-payment of the Florida Taxes against the Agent, a Bank, or any
of
their directors, officers, agents or employees.
SECTION
9.19. Arbitration;
Preservation and Limitation of Remedies.
(a)
Upon demand of any party hereto, whether made before or after institution of
any
judicial proceeding, any dispute, claim or controversy arising out of, connected
with or relating to this Agreement or any other Loan Document (“Disputes”)
between or among the Borrower, its Subsidiaries, the Agent and the Banks, or
any
of them, shall be resolved by binding arbitration as provided herein.
Institution of a judicial proceeding by a party does not waive the right of
that
party to demand arbitration hereunder. Disputes may include, without limitation,
tort claims, counterclaims, claims brought as class actions, claims arising
from
documents executed in the future, disputes as to whether a matter is subject
to
arbitration, or claims arising out of or connected with the transactions
contemplated by this Agreement and the other Loan Documents. Arbitration shall
be conducted under and governed by the Commercial Financial Disputes Arbitration
Rules (the “Arbitration Rules”) of the American Arbitration Association (the
“AAA”), as in effect from time to time, and the Federal Arbitration Act, Title 9
of the U.S. Code, as amended. All arbitration hearings shall be conducted in
the
city in which the principal office of the Agent is
WCSR
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63
located.
A hearing shall begin within ninety (90) days of demand for arbitration and
all
hearings shall be concluded within 120 days of demand for arbitration. These
time limitations may not be extended unless a party shows cause for extension
and then for no more than a total of sixty (60) days. The expedited procedures
set forth in Rule 51 et seq.
of the
Arbitration Rules shall be applicable to claims of less than $1,000,000. All
applicable statutes of limitation shall apply to any Dispute. A judgment upon
the award may be entered in any court having jurisdiction. The panel from which
all arbitrators are selected shall be comprised of licensed attorneys selected
from the Commercial Financial Dispute Arbitration Panel of the AAA. The single
arbitrator selected for expedited procedure shall be a retired judge from the
highest court of general jurisdiction, state or federal, of the state where
the
hearing will be conducted. The parties do not waive applicable federal or state
substantive law except as provided herein.
(b) Notwithstanding
the preceding binding arbitration provisions, the parties hereto agree to
preserve, without diminution, certain remedies that any party hereto may employ
or exercise freely, either alone, in conjunction with or during a Dispute.
Any
party hereto shall have the right to proceed in any court of proper jurisdiction
or by self-help to exercise or prosecute the following remedies, as applicable:
(i) obtaining provisional or ancillary remedies, including injunctive relief,
sequestration, garnishment, attachment, appointment of a receiver and filing
an
involuntary bankruptcy proceeding; and (ii) when applicable, a judgment by
confession of judgment. Any claim or controversy with regard to any party’s
entitlement to such remedies is a Dispute. Preservation of these remedies does
not limit the power of an arbitrator to grant similar remedies that may be
requested by a party in a Dispute. The parties hereto agree that no party shall
have a remedy of punitive or exemplary damages against any other party in any
Dispute, and each party hereby waives any right or claim to punitive or
exemplary damages that it has now or that may arise in the future in connection
with any Dispute, whether such Dispute is resolved by arbitration or judicially.
The parties acknowledge that by agreeing to binding arbitration they have
irrevocably waived any right they may have to a jury trial with regard to a
Dispute. The Borrower agrees to pay the reasonable fees and expenses of counsel
to the Agent and the Banks in connection with any Dispute subject to arbitration
as provided herein.
SECTION
9.20. Amended,
Restated and Replacement Agreement.
This
Agreement amends, restates and replaces in its entirety the Existing Credit
Agreement, all effective as of the Closing Date. Effective as of the Closing
Date, the Commitments of each Bank shall be the amount set forth opposite the
name of such Bank on the signature pages hereof. The provisions of the Existing
Credit Agreement and the other Loan Documents (as defined in the Existing Credit
Agreement) executed in connection therewith, to the extent restated, amended
and
modified hereby or by the other corresponding Loan Documents, are hereby
superseded and replaced by the provisions hereof and of the corresponding other
Loan Documents. The Notes restate, amend, modify, replace, are substituted
for
and supersede, but do not extinguish, the Obligations (as defined in the
Existing Credit Agreement) arising under the Notes (as defined in the Existing
Credit Agreement) issued pursuant to the Existing Credit Agreement. The
execution and delivery of the Loan Documents, and the performance by the
Borrower of its obligations thereunder shall not constitute a
novation.
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WCSR
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed, under seal, by their respective authorized officers as of the day
and
year first above written.
OUTBACK
STEAKHOUSE, INC.
By:
/s/ Xxxx X. Montgomery____________(SEAL)
Xxxx
X.
Xxxxxxxxxx, Senior Vice President
and
Chief
Financial Officer
Outback
Steakhouse, Inc.
0000
Xxxxx Xxxxxxxxx Xxxx., 0xx
Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxxxxx
Senior
Vice President and Chief Financial Officer
Telecopy
number: (000)
000-0000
Telephone
number: (000)
000-0000
with
a
copy to:
Outback
Steakhouse, Inc.
0000
Xxxxx Xxxxxxxxx Xxxx., 0xx
Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxxxx X. Xxxxx
Executive
Vice President, Chief Officer-Legal and Corporate Affairs and
Secretary
Telecopy
number: (000)
000-0000
Telephone
number: (000)
000-0000
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WCSR
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COMMITMENTS WACHOVIA
BANK, NATIONAL ASSOCIATION, as Agent and as a Bank
$75,000,000.00
Swing
Line Commitment
$10,000,000.00
By:
/s/ Xxxx X. Culbreath_____________ (SEAL)
Xxxx
X.
Xxxxxxxxx, Senior Vice President
Lending
Office
Wachovia
Bank, National Association
Charlotte
Plaza
000
Xxxxx
Xxxxxxx Xxxxxx, XX-0
Xxxxxxxxx,
Xxxxx Xxxxxxxx 00000-0000
Attention:
Syndication Agency Services, Xxx Xxxxxxxxx
Telecopy
number: 000-000-0000
Telephone
number: 000-000-0000
with
a
copy to:
Wachovia
Bank, National Association
000
Xxxxx
Xxxxxx Xxxxx, XX0000
Xxxxx
0000
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx X. Xxxxxxxxx
Senior
Vice President
Telecopy
number: (000)
000-0000
Telephone
number: (000)
000-0000
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WCSR
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$40,000,000.00 SUNTRUST
BANK
By:
/s/ Xxxxx X. Lewis________________ (SEAL)
Title:
Vice President
Lending
Office
SunTrust
Bank
000
Xxxxx
Xxxxxx Xxxxxx
SunTrust
Center, 10th
Floor,
MC1106
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxx Xxx
Telecopy
number: 000-000-0000
Telephone
number: 000-000-0000
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WCSR
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$35,000,000.00
BANK
OF
AMERICA, N.A.
By:
/s/ Xxxx X. Ware_______________ (SEAL)
Title:
Vice President
Lending
Office
Bank
of
America, N.A.
000
Xxxx
Xxxxxxx Xxxx., 0xx
Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxx Xxxxx
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
[The
remainder of this page intentionally left blank.]
WCSR
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68
$30,000,000.00 LASALLE
BANK NATIONAL ASSOCIATION
By:
/s/ Xxx X. Kehoe___________ (SEAL)
Title:
FVP
Lending
Office
LaSalle
Bank, National Association
000
X.
Xxxxxxx Xxxxxx, Xxxxx 0000
Xxxxx,
Xxxxxxx 00000
Attention:
Xxxxxx Xxxxxxx
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
[The
remainder of this page intentionally left blank.]
WCSR
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69
$35,000,000.00 XXXXX
FARGO BANK, NATIONAL ASSOCIATION
By:
/s/ Alex Idichandy___________ (SEAL)
Title:
SVP
By:
/s/ Xxxxx X. Combs__________ (SEAL)
Title:
VP
Lending
Office
Xxxxx
Fargo Bank, National Association
0000
Xxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxx,
Xxxxxxx 00000
Attention:
Xxxxx Xxxxx
Telecopy
number: (000) 000-0000
Telephone
number: (000) 000-0000
[The
remainder of this page intentionally left blank.]
WCSR
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$10,000,000.00 HIBERNIA
NATIONAL BANK
By:
/s/ Xxxxxx Disbrow__________ (SEAL)
Title:
Assistant Vice President
Lending
Office
Hibernia
National Bank
313
Carondelet Street,
6th
Floor -
US Corporate
Xxx
Xxxxxxx, Xxxxxxxxx 00000
Attention:
Xxxxx Xxxxxx, Portfolio Manager
Telecopy
number: 000-000-0000
Telephone
number: 000-000-0000
TOTAL
COMMITMENTS:
$225,000,000.00
WCSR
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