5-YEAR REVOLVING CREDIT AGREEMENT
DATED AS OF DECEMBER 3, 2004
AMONG
XXXXXXXX'X INTERNATIONAL, INC.
as the Borrower
THE LENDERS FROM TIME TO TIME PARTIES HERETO,
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
and
FLEET NATIONAL BANK, SUNTRUST BANK, CITICORP LEASING, INC. and
THE BANK OF TOKYO-MITSUBISHI, LTD., CHICAGO BRANCH,
as Syndication Agents
================================================================================
X.X. XXXXXX SECURITIES INC.,
as Sole Lead Arranger and Sole Book Runner
================================================================================
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS......................................................................................1
1.1. Certain Defined Terms.......................................................................1
1.2. References..................................................................................17
ARTICLE II THE CREDITS......................................................................................17
2.1. Commitment..................................................................................17
2.2. Swing Line Loans............................................................................17
2.2.1. Amount of Swing Line Loans.............................................................17
2.2.2. Borrowing Notice.......................................................................17
2.2.3. Making of Swing Line Loans.............................................................18
2.2.4. Repayment of Swing Line Loans..........................................................18
2.3. Required Payments; Termination..............................................................19
2.3.1. Required Payments......................................................................19
2.3.2. Termination............................................................................19
2.4. Ratable Loans...............................................................................19
2.5. Types of Advances...........................................................................19
2.6. Commitment Fee; Reductions in Aggregate Commitment; Increases in Aggregate Commitment.......19
2.6.1. Commitment Fee.........................................................................19
2.6.2. Reductions in Aggregate Commitment.....................................................19
2.6.3. Increase of Aggregate Commitment.......................................................20
2.7. Minimum Amount of Each Advance..............................................................22
2.8. Optional Principal Payments.................................................................22
2.9. Method of Selecting Types and Interest Periods for New Advances; Method of Borrowing........22
2.9.1. Method of Selecting Types and Interest Periods for New Advances........................22
2.9.2. Method of Borrowing....................................................................23
2.10. Conversion and Continuation of Outstanding Advances.........................................23
2.11. Changes in Interest Rate, etc...............................................................24
2.12. Rates Applicable After Default..............................................................24
2.13. Method of Payment...........................................................................24
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2.14. Noteless Agreement; Evidence of Indebtedness................................................25
2.15. Telephonic Notices..........................................................................25
2.16. Interest Payment Dates; Interest and Fee Basis..............................................26
2.17. Notification of Advances, Interest Rates, Prepayments and Commitment Reductions.............26
2.18. Lending Installations.......................................................................26
2.19. Non-Receipt of Funds by the Administrative Agent............................................27
2.20. Replacement of Lender.......................................................................27
2.21. Facility LCs................................................................................28
2.21.1. Issuance; Transitional Facility LCs....................................................28
2.21.2. Participations.........................................................................28
2.21.3. Notice.................................................................................28
2.21.4. LC Fees................................................................................29
2.21.5. Administration; Reimbursement by Lenders...............................................29
2.21.6. Reimbursement by Borrower..............................................................30
2.21.7. Obligations Absolute...................................................................30
2.21.8. Actions of LC Issuers..................................................................30
2.21.9. Indemnification........................................................................31
2.21.10. Lenders' Indemnification...............................................................31
2.21.11. Facility LC Collateral Account.........................................................32
2.21.12. Rights as a Lender.....................................................................32
ARTICLE III YIELD PROTECTION; TAXES..........................................................................32
3.1. Yield Protection............................................................................32
3.2. Changes in Capital Adequacy Regulations.....................................................33
3.3. Availability of Types of Advances...........................................................34
3.4. Funding Indemnification.....................................................................34
3.5. Taxes.......................................................................................34
3.6. Lender Statements; Survival of Indemnity....................................................36
ARTICLE IV CONDITIONS PRECEDENT.............................................................................36
4.1. Initial Credit Extension....................................................................36
4.2. Each Credit Extension.......................................................................38
ARTICLE V REPRESENTATIONS AND WARRANTIES...................................................................38
5.1. Existence and Standing......................................................................38
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5.2. Authorization and Validity..................................................................38
5.3. No Conflict; Government Consent.............................................................39
5.4. Financial Statements........................................................................39
5.5. Material Adverse Change.....................................................................39
5.6. Taxes.......................................................................................39
5.7. Litigation and Contingent Obligations.......................................................40
5.8. Subsidiaries................................................................................40
5.9. Accuracy of Information.....................................................................40
5.10. Regulation U................................................................................40
5.11. Material Agreements.........................................................................40
5.12. Compliance With Laws........................................................................40
5.13. Ownership of Properties.....................................................................41
5.14. ERISA; Foreign Pension Matters..............................................................41
5.15. Plan Assets; Prohibited Transactions........................................................41
5.16. Environmental Matters.......................................................................41
5.17. Investment Company Act......................................................................42
5.18. Public Utility Holding Company Act..........................................................42
5.19. Insurance...................................................................................42
ARTICLE VI COVENANTS........................................................................................42
6.1. Financial Reporting.........................................................................42
6.2. Use of Proceeds.............................................................................43
6.3. Notice of Default...........................................................................44
6.4. Conduct of Business.........................................................................44
6.5. Taxes.......................................................................................44
6.6. Insurance...................................................................................44
6.7. Compliance with Laws........................................................................44
6.8. Maintenance of Properties...................................................................44
6.9. Inspection; Keeping of Books and Records....................................................44
6.10. Addition of Guarantors......................................................................45
6.11. Dividends and Distributions.................................................................45
6.12. Intentionally Omitted.......................................................................45
6.13. Merger......................................................................................45
6.14. Sale of Assets..............................................................................45
6.15. Investments and Acquisitions................................................................46
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6.16. Liens.......................................................................................48
6.17. Transactions with Affiliates................................................................48
6.18. Financial Contracts.........................................................................49
6.19. ERISA.......................................................................................49
6.20. Environmental Compliance....................................................................49
6.21. Financial Covenants.........................................................................50
6.21.1. Maximum Leverage Ratio.................................................................50
6.21.2. Minimum Fixed Charge Coverage Ratio....................................................50
6.21.3. Maximum Ratio of Indebtedness to Total Capitalization..................................50
ARTICLE VII DEFAULTS.........................................................................................50
7.1. Breach of Representations or Warranties.....................................................50
7.2. Failure to Make Payments When Due...........................................................50
7.3. Breach of Covenants.........................................................................50
7.4. Other Breaches..............................................................................50
7.5. Default as to Other Indebtedness............................................................50
7.6. Voluntary Bankruptcy; Appointment of Receiver; Etc..........................................51
7.7. Involuntary Bankruptcy; Appointment of Receiver; Etc........................................51
7.8. Custody or Control of Property..............................................................51
7.9. Judgments...................................................................................52
7.10. Unfunded Liabilities........................................................................52
7.11. Other ERISA Liabilities.....................................................................52
7.12. Environmental Matters.......................................................................52
7.13. Change in Control...........................................................................52
7.14. The Guaranty................................................................................52
7.15. The Loan Documents..........................................................................52
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES...................................................52
8.1. Acceleration................................................................................52
8.2. Amendments..................................................................................54
8.3. Preservation of Rights......................................................................55
ARTICLE IX GENERAL PROVISIONS...............................................................................55
9.1. Survival of Representations.................................................................55
9.2. Governmental Regulation.....................................................................55
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9.3. Headings....................................................................................55
9.4. Entire Agreement............................................................................55
9.5. Several Obligations; Benefits of this Agreement.............................................55
9.6. Expenses; Indemnification...................................................................56
9.7. Numbers of Documents........................................................................56
9.8. Accounting..................................................................................56
9.9. Severability of Provisions..................................................................57
9.10. Nonliability of Lenders.....................................................................57
9.11. Confidentiality.............................................................................57
9.12. Lenders Not Utilizing Plan Assets...........................................................58
9.13. Nonreliance.................................................................................58
9.14. Disclosure..................................................................................58
9.15. Subordination of Intercompany Indebtedness..................................................58
9.16. USA Patriot Act.............................................................................59
ARTICLE X THE AGENTS.......................................................................................59
10.1. Appointment; Nature of Relationship.........................................................59
10.2. Powers......................................................................................60
10.3. General Immunity............................................................................60
10.4. No Responsibility for Loans, Recitals, etc..................................................60
10.5. Action on Instructions of Lenders...........................................................60
10.6. Employment of Agents and Counsel............................................................61
10.7. Reliance on Documents; Counsel..............................................................61
10.8. Agents' Reimbursement and Indemnification...................................................61
10.9. Notice of Default...........................................................................61
10.10. Rights as a Lender..........................................................................62
10.11. Lender Credit Decision......................................................................62
10.12. Successor Agents............................................................................62
10.13. Agent and Arranger Fees.....................................................................63
10.14. Delegation to Affiliates....................................................................63
10.15. Release of Guarantors.......................................................................63
ARTICLE XI SETOFF; RATABLE PAYMENTS.........................................................................63
11.1. Setoff......................................................................................63
11.2. Ratable Payments............................................................................63
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ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.................................................64
12.1. Successors and Assigns; Designated Lenders..................................................64
12.1.1. Successors and Assigns.................................................................64
12.1.2. Designated Lenders.....................................................................64
12.2. Participations..............................................................................65
12.2.1. Permitted Participants; Effect.........................................................66
12.2.2. Voting Rights..........................................................................66
12.2.3. Benefit of Certain Provisions..........................................................66
12.3. Assignments.................................................................................66
12.3.1. Permitted Assignments..................................................................67
12.3.2. Effect; Effective Date.................................................................67
12.3.3. The Register...........................................................................67
12.4. Dissemination of Information................................................................68
12.5. Tax Treatment...............................................................................68
ARTICLE XIII NOTICES..........................................................................................68
13.1. Notices.....................................................................................68
13.2. Change of Address...........................................................................68
ARTICLE XIV COUNTERPARTS.....................................................................................69
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL.....................................69
15.1. CHOICE OF LAW...............................................................................69
15.2. CONSENT TO JURISDICTION.....................................................................69
15.3. WAIVER OF JURY TRIAL........................................................................69
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EXHIBITS
Exhibit A-1 - Form of Borrower's and Guarantors' Counsel's Opinion
Exhibit A-2 - Form of Administrative Agent's Counsel's Opinion
Exhibit B - Form of Compliance Certificate
Exhibit C - Form of Assignment Agreement
Exhibit D - Form of Loan/Credit Related Money Transfer Instruction
Exhibit E - Form of Promissory Note (if requested)
Exhibit F - List of Closing Documents
Exhibit G - Form of Designation Agreement
Exhibit H - Form of Guaranty
Exhibit I - Form of Commitment and Acceptance
SCHEDULES
Pricing Schedule
Commitment Schedule
Schedule 2.21 - Existing Letters of Credit
Schedule 5.8 - Subsidiaries
Schedule 5.16 - Environmental Matters
Schedule 6.15 - Existing Investments
Schedule 6.16 - Existing Liens
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5-YEAR REVOLVING CREDIT AGREEMENT
This 5-Year Revolving Credit Agreement, dated as of December 3, 2004, is among
XXXXXXXX'X INTERNATIONAL, INC., the institutions from time to time parties
hereto as Lenders (whether by execution of this Agreement or an assignment
pursuant to Section 12.3), JPMORGAN CHASE BANK, N.A., a national banking
association, as Swing Line Lender, LC Issuer and Administrative Agent, Fleet
National Bank, SunTrust Bank, Citicorp Leasing, Inc. and The Bank of
Tokyo-Mitsubishi, Ltd., Chicago Branch, as Syndication Agents. The parties
hereto agree as follows:
ARTICLE I
DEFINITIONS
1.1. Certain Defined Terms. As used in this Agreement:
"Accounting Changes" is defined in Section 9.8 hereof.
"Acquisition" means any transaction, or any series of related
transactions, consummated on or after the date of this Agreement, by which the
Borrower or any of its Subsidiaries (i) acquires any going business or all or
substantially all of the assets of any Person, or division thereof, whether
through purchase of assets, merger or otherwise or (ii) directly or indirectly
acquires (in one transaction or as the most recent transaction in a series of
transactions) at least a majority (in number of votes) of the securities of a
corporation which have ordinary voting power for the election of directors
(other than securities having such power only by reason of the happening of a
contingency) or a majority (by percentage of voting power) of the outstanding
ownership interests of a partnership or limited liability company.
"Administrative Agent" means JPMCB in its capacity as contractual
representative of the Lenders pursuant to Article X, and not in its individual
capacity as a Lender, and any successor Administrative Agent appointed pursuant
to Article X.
"Advance" means a borrowing hereunder consisting of the aggregate
amount of several Loans (i) made by some or all of the Lenders on the same
Borrowing Date, or (ii) converted or continued by the Lenders on the same date
of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period. The term "Advance" shall include Swing Line
Loans unless otherwise expressly provided.
"Affected Lender" is defined in Section 2.20.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person is the
"beneficial owner" (as defined in Rule 13d-3 under the Securities Exchange Act
of 1934) of ten percent (10%) or more of any class of voting securities (or
other voting interests) of the controlled Person or possesses, directly or
indirectly, the power to direct or cause the direction of the management or
policies of the controlled Person, whether through ownership of voting
securities, by contract or otherwise. Notwithstanding the previous sentence, any
institutional investors who purchase their interest in the Borrower in a public
market shall not be considered Affiliates of the Borrower.
"Agent" means any of the Administrative Agent and the Syndication
Agents, as appropriate, and "Agents" means, collectively, the Administrative
Agent and the Syndication Agents.
"Aggregate Commitment" means the aggregate of the Commitments of all
the Lenders, as may be adjusted from time to time pursuant to the terms hereof.
The initial Aggregate Commitment is $150,000,000.
"Aggregate Outstanding Credit Exposure" means, at any time, the
aggregate of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this 5-Year Revolving Credit Agreement, as it may be
amended, restated, supplemented or otherwise modified and as in effect from time
to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect in the United States from time to time, applied in a
manner consistent with that used in preparing the financial statements of the
Borrower referred to in Section 5.4; provided, however, that except as provided
in Section 9.8, with respect to the calculation of financial ratios and other
financial tests required by this Agreement, "Agreement Accounting Principles"
means generally accepted accounting principles as in effect in the United States
as of the date of this Agreement, applied in a manner consistent with that used
in preparing the financial statements of the Borrower referred to in Section 5.4
hereof.
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Rate for such day and (ii) the sum of (a)
the Federal Funds Effective Rate for such day and (b) one-half of one percent
(0.5%) per annum.
"Applicable Fee Rate" means, at any time, the percentage rate per annum
at which Commitment Fees are accruing on the unused portion of the Aggregate
Commitment at such time as set forth in the Pricing Schedule.
"Applicable Margin" means, with respect to Advances of any Type at any
time, the percentage rate per annum which is applicable at such time with
respect to Advances of such Type as set forth in the Pricing Schedule.
"Arranger" means X.X. Xxxxxx Securities Inc., and its successors, in
its capacity as Lead Arranger and Sole Book Runner.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Assignment Agreement" is defined in Section 12.3.1.
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"Authorized Officer" means any of the chief executive officer, chief
financial officer, chief accounting officer or treasurer of the Borrower, acting
singly.
"Available Aggregate Commitment" means, at any time, the Aggregate
Commitment then in effect minus the Aggregate Outstanding Credit Exposure at
such time.
"Borrower" means Xxxxxxxx'x International, Inc., a Delaware
corporation, and its permitted successors and assigns (including, without
limitation, a debtor-in-possession on its behalf).
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.9.1.
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks are not authorized or required to close in Chicago, Illinois or New
York City for the conduct of substantially all of their commercial lending
activities, interbank wire transfers can be made on the Fedwire system and
dealings in United States dollars are carried on in the London interbank market
and (ii) for all other purposes, a day (other than a Saturday or Sunday) on
which banks are not authorized or required to close in Chicago, Illinois or New
York City for the conduct of substantially all of their commercial lending
activities and interbank wire transfers can be made on the Fedwire system.
"Buying Lender" is defined in Section 2.6.3(ii).
"Capitalized Lease" of a Person means any lease of Property by such
Person as lessee which would be capitalized on a balance sheet of such Person
prepared in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Capital Stock" means (i) in the case of a corporation, corporate
stock, (ii) in the case of an association or business entity, any and all
shares, interests, participations, rights or other equivalents (however
designated) of corporate stock, (iii) in the case of a partnership, partnership
interests (whether general or limited) and (iv) any other interest or
participation that confers on a Person the right to receive a share of the
profits and losses of, or distributions of assets of, the issuing Person.
"Cash Equivalent Investments" means, as to any Person, (i) securities
issued or directly and fully guaranteed or insured by the United States or any
agency or instrumentality thereof (provided that the full faith and credit of
the United States is pledged in support thereof) having maturities of not more
than one year from the date of acquisition, (ii) time deposits and certificates
of deposit of any investment grade commercial bank having, or which is the
principal banking subsidiary of an investment grade bank holding company
3
organized under the laws of the United States, any State thereof, the District
of Columbia or any foreign jurisdiction having capital, surplus and undivided
profits aggregating in excess of $500,000,000, with maturities of not more than
one year from the date of acquisition by such Person, (iii) repurchase
obligations with a term of not more than ninety (90) days for underlying
securities of the types described in clause (i) above entered into with any bank
meeting the qualifications specified in clause (ii) above, provided that such
repurchase obligations are secured by a first priority security interest in such
underlying securities which have, on the date of purchase thereof, a fair market
value of at least 100% of the amount of the repurchase obligations, (iv)
commercial paper issued by any Person incorporated in the United States rated at
least A-1 by S&P or P-1 by Xxxxx'x and in each case maturing not more than 270
days after the date of acquisition by such Person, (v) municipal or preferred
short term auction rate securities that are rated at least A by S&P, Xxxxx'x or
Fitch, Inc., a wholly-owned subsidiary of Fimalac S.A., and in each case with an
interest rate re-set auction date of not more than 270 days after the date of
acquisition by such Person (vi) investments in money market funds substantially
all of the assets of which are comprised of securities of the types described in
clauses (i) through (v) above, and (vii) demand deposit accounts maintained in
the ordinary course of business.
"Change" is defined in Section 3.2.
"Change in Control" means (i) the acquisition by any Person, or two or
more Persons acting in concert, of beneficial ownership (within the meaning of
Rule 13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of thirty-three percent (33%) or
more of the outstanding shares of voting stock of the Borrower; or (ii) the
majority of the Board of Directors of the Borrower fails to consist of
Continuing Directors; or (iii) except as expressly permitted under the terms of
this Agreement, the Borrower consolidates with or merges into another Person or
conveys, transfers or leases all or substantially all of its property to any
Person, or any Person consolidates with or merges into the Borrower, in either
event pursuant to a transaction in which the outstanding Capital Stock of the
Borrower is reclassified or changed into or exchanged for cash, securities or
other property.
"Closing Date" means December 3, 2004.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time, and any rule or regulation issued
thereunder.
"Collateral Shortfall Amount" is defined in Section 8.1(i).
"Commitment" means, for each Lender, the obligation of such Lender to
make Revolving Loans to, and participate in Swing Line Loans and in Facility LCs
issued upon the application of, the Borrower in an aggregate amount not
exceeding the amount set forth on the Commitment Schedule or in an Assignment
Agreement executed pursuant to Section 12.3 or in a Commitment and Acceptance
executed pursuant to Section 2.6.3, as it may be modified as a result of any
assignment that has become effective pursuant to Section 12.3.2 or as otherwise
modified from time to time pursuant to the terms hereof.
"Commitment and Acceptance" is identified in Section 2.6.3.
"Commitment Fee" is defined in Section 2.6.1.
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"Commitment Increase Notice" is defined in Section 2.6.3(i) hereof.
"Commitment Schedule" means the Schedule identifying each Lender's
Commitment as of the Closing Date attached hereto and identified as such.
"Consolidated Funded Indebtedness" means at any time the Funded
Indebtedness of the Borrower and its Subsidiaries calculated on a consolidated
basis as of such time.
"Consolidated Indebtedness" means at any time the Indebtedness of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Interest Expense" means, for any period, the total gross
interest expense of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period, whether paid or accrued, including, without
duplication, the interest component of Capitalized Leases, commitment and letter
of credit fees, the discount or implied interest component of Off-Balance Sheet
Liabilities, capitalized interest expense, pay-in-kind interest expense,
amortization of debt documents and net payments (if any) pursuant to Financial
Contracts relating to interest rate protection (other than any such payments
pursuant to Financial Contracts in effect prior to the date hereof which are
being terminated substantially concurrently with the execution and delivery
hereof).
"Consolidated Net Income" means, with reference to any period, the net
after-tax income (or loss) of the Borrower and its Subsidiaries calculated on a
consolidated basis for such period, excluding the net after-tax income (or loss)
allocated to minority interests in accordance with Agreement Accounting
Principles.
"Consolidated Net Worth" means at any time the consolidated
stockholders' equity of the Borrower and its Subsidiaries calculated on a
consolidated basis as of such time.
"Consolidated Rentals" means, for any period, the Rentals of the
Borrower and its Subsidiaries calculated on a consolidated basis for such
period.
"Consolidated Total Assets" means at any time the total assets of the
Borrower and its Subsidiaries calculated on a consolidated basis as of such
time.
"Consolidated Total Capitalization" means at any time the sum of
Consolidated Indebtedness plus Consolidated Net Worth, each calculated as of
such time.
"Contingent Obligation" of a Person means any agreement, undertaking or
arrangement by which such Person assumes, guarantees, endorses, contingently
agrees to purchase or provide funds for the payment of, or otherwise becomes or
is contingently liable upon, the obligation or liability of any other Person, or
agrees to maintain the net worth or working capital or other financial condition
of any other Person, or otherwise assures any creditor of such other Person
against loss, including, without limitation, any comfort letter, operating
agreement, take-or-pay contract or the obligations of any such Person as general
partner of a partnership with respect to the liabilities of the partnership.
When measuring "Contingent Obligations", the amount of any Contingent Obligation
5
will be (i) the fair market value thereof as determined in accordance with, and
as permitted by, Agreement Accounting Principles, as so reported in the
Borrower's annual and quarterly financial statements required to be delivered
under Section 6.1 or (ii) the full amount of the total obligation in the case
that the Borrower has not performed a fair market value assessment under
Agreement Accounting Principles.
"Continuing Director" means, with respect to any Person as of any date
of determination, any member of the board of directors of such Person who (a)
was a member of such board of directors on the Closing Date, or (b) was
nominated for election or elected to such board of directors with the approval
of the required majority of the Continuing Directors who were members of such
board at the time of such nomination or election.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property owned
by it is bound.
"Controlled Group" means all members of a controlled group of
corporations or other business entities and all trades or businesses (whether or
not incorporated) under common control which, together with the Borrower or any
of its Subsidiaries, are treated as a single employer under Section 414 of the
Code.
"Conversion/Continuation Notice" is defined in Section 2.10.
"Credit Extension" means the making of an Advance or the issuance of a
Facility LC hereunder.
"Credit Extension Date" means the Borrowing Date for an Advance or the
issuance date for a Facility LC.
"Default" means an event described in Article VII.
"Designated Lender" means, with respect to each Designating Lender,
each Eligible Designee designated by such Designating Lender pursuant to Section
12.1.2.
"Designating Lender" means, with respect to each Designated Lender, the
Lender that designated such Designated Lender pursuant to Section 12.1.2.
"Designation Agreement" is defined in Section 12.1.2.
"Domestic Subsidiary" means a Subsidiary of the Borrower organized
under the laws of a jurisdiction located in the United States of America.
"EBITDA" means, for any period, Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii)
depreciation, (iv) amortization, (v) extraordinary losses incurred other than in
the ordinary course of business, and (vi) other non-cash losses (except any
non-cash losses that require accrual of a reserve for anticipated future cash
payments for any period other than accrual for future obligations made pursuant
to SFAS Xx. 00, Xx. 000 or No. 116, as amended) deducted in calculating net
6
income (or net loss) (including, without limitation, loss on the disposition of
assets), minus, to the extent included in Consolidated Net Income, (x)
extraordinary gains realized other than in the ordinary course of business, (y)
the income of any joint venture, except to the extent of cash dividends or
distributions actually paid by such joint venture to the Borrower or any of its
Subsidiaries and (z) other non-cash gains (including, without limitation, gain
on the disposition of assets), in each case of the Borrower and its
Subsidiaries, determined in accordance with Agreement Accounting Principles for
such period.
"EBITR" means, for any period, Consolidated Net Income plus, to the
extent deducted from revenues in determining Consolidated Net Income, (i)
Consolidated Interest Expense, (ii) expense for taxes paid or accrued, (iii)
Consolidated Rentals, (iv) extraordinary losses incurred other than in the
ordinary course of business, and (v) other non-cash losses (except any non-cash
losses that require accrual of a reserve for anticipated future cash payments
for any period other than accrual for future obligations made pursuant to SFAS
Xx. 00, Xx. 000 or No. 116, as amended) deducted in calculating net income (or
net loss) (including, without limitation, loss on the disposition of assets),
minus, to the extent included in Consolidated Net Income, (x) extraordinary
gains realized other than in the ordinary course of business, (y) the income of
any joint venture, except to the extent of cash dividends or distributions
actually paid by such joint venture to the Borrower or any of its Subsidiaries
and (z) other non-cash gains (including, without limitation, gain on the
disposition of assets), in each case of the Borrower and its Subsidiaries,
determined in accordance with Agreement Accounting Principles for such period.
"Effective Commitment Amount" is defined in Section 2.6.3(i) hereof.
"Eligible Designee" means a special purpose corporation, partnership,
limited partnership or limited liability company that is administered by a
Lender or an Affiliate of a Lender and (i) is organized under the laws of the
United States of America or any state thereof, (ii) is engaged primarily in
making, purchasing or otherwise investing in commercial loans in the ordinary
course of its business and (iii) issues (or the parent of which issues)
commercial paper rated at least A-1 or the equivalent thereof by S&P or at least
P-1 or the equivalent thereof by Xxxxx'x.
"Environmental Laws" means any and all federal, state, local and
foreign statutes, laws, judicial decisions, regulations, ordinances, rules,
judgments, orders, decrees, plans, injunctions, permits, concessions, grants,
franchises, licenses, agreements and other governmental restrictions relating to
(i) the protection of the environment, (ii) the effect of the environment on
human health, (iii) emissions, discharges or releases of pollutants,
contaminants, hazardous substances or wastes into surface water, ground water or
land, or (iv) the manufacture, processing, distribution, use, treatment,
storage, disposal, transport or handling of pollutants, contaminants, hazardous
substances or wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, including (unless the context otherwise requires) any
rules or regulations promulgated thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the applicable Eurodollar Rate.
7
"Eurodollar Base Rate" means, with respect to a Eurodollar Advance for
the relevant Interest Period, the applicable British Bankers' Association LIBOR
rate for deposits in U.S. dollars as reported by Bloomberg or, if Bloomberg is
not available, by any other generally recognized financial information service
as of 11:00 a.m. (London time) two Business Days prior to the first day of such
Interest Period, and having a maturity equal to such Interest Period, provided
that, if no such British Bankers' Association LIBOR rate is available to the
Administrative Agent, the applicable Eurodollar Base Rate for the relevant
Interest Period shall instead be the rate determined by the Administrative Agent
to be the rate at which JPMCB or one of its Affiliate banks offers to place
deposits in U.S. dollars with first-class banks in the London interbank market
at approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period, in the approximate amount of JPMCB's relevant
Eurodollar Loan and having a maturity equal to such Interest Period.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.12, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, the sum of (i) the quotient of (a) the Eurodollar Base
Rate applicable to such Interest Period, divided by (b) one minus the Reserve
Requirement (expressed as a decimal) applicable to such Interest Period, plus
(ii) the then Applicable Margin, changing as and when the Applicable Margin
changes.
"Excluded Taxes" means, in the case of each Lender or applicable
Lending Installation and each Agent, taxes imposed on its overall net income,
and franchise taxes imposed on it, by (i) the jurisdiction under the laws of
which such Lender or Agent is incorporated or organized or any political
combination or subdivision or taxing authority thereof or (ii) the jurisdiction
in which such Agent's or Lender's principal executive office or such Lender's
applicable Lending Installation is located or in which, other than as a direct
result of the transaction evidenced by this Agreement, such Agent or Lender
otherwise is, or at any time was, engaged in business.
"Exhibit" refers to an exhibit to this Agreement, unless another
document is specifically referenced.
"Existing Credit Agreement" means that certain 3-Year Credit Agreement
dated as of November 5, 2001 among the Borrower, the lenders parties thereto and
JPMorgan Chase Bank, N.A. (successor by merger to Bank One, NA (Main Office
Chicago)), as Administrative Agent, as the same has been amended, supplemented
or otherwise modified from time to time prior to the Closing Date.
"Facility LC" is defined in Section 2.21.1.
"Facility LC Application" is defined in Section 2.21.3.
"Facility LC Collateral Account" is defined in Section 2.21.11.
"Facility Termination Date" means the earlier of (a) December 3, 2009,
and (b) the date of termination in whole of the Aggregate Commitment pursuant to
Section 2.6.2 hereof or the Commitments pursuant to Section 8.1 hereof.
8
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 10:00 a.m. (Chicago
time) on such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics or (ii) any agreement, device or
arrangement providing for payments related to fluctuations of interest rates,
exchange rates, forward rates or commodity prices, including, but not limited
to, interest rate swap or exchange agreements, forward currency exchange
agreements, interest rate cap or collar protection agreements, forward rate
currency and interest rate options, puts or warrants.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, changing when
and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.12, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan or portion thereof, which, except as
otherwise provided in Section 2.12, bears interest at the Floating Rate.
"Foreign Pension Plan" means any employee benefit plan as described in
Section 3(3) of ERISA for which the Borrower or any member of its Controlled
Group is a sponsor or administrator and which (i) is maintained or contributed
to for the benefit of employees of the Borrower, any of its respective
Subsidiaries or any member of its Controlled Group, (ii) is not covered by ERISA
pursuant to Section 4(b)(4) of ERISA, and (iii) under applicable local law, is
required to be funded through a trust or other funding vehicle.
"Foreign Subsidiary" means a Subsidiary of the Borrower which is not a
Domestic Subsidiary.
"Funded Indebtedness" means at any time the aggregate dollar amount of
(i) Indebtedness which has actually been funded and is outstanding at such time,
whether or not such amount is due or payable at such time, (ii) the undrawn
amount of standby letters of credit and (iii) Contingent Obligations with
respect to the Funded Indebtedness of any other Person.
"Guarantor" shall mean each Subsidiary of the Borrower that is a
Domestic Subsidiary as of the Closing Date and each other Subsidiary that has
become a guarantor of the Obligations hereunder in accordance with the terms of
Section 6.10.
"Guaranty" means that certain Guaranty (and any and all supplements
thereto) executed from time to time by each Guarantor in favor of the
9
Administrative Agent for the benefit of itself and the Lenders, in substantially
the form of Exhibit H attached hereto, as amended, restated, supplemented or
otherwise modified from time to time.
"Indebtedness" of a Person means, without duplication, such Person's
(i) obligations for borrowed money, (ii) obligations representing the deferred
purchase price of Property or services (other than accounts payable arising in
the ordinary course of such Person's business payable on terms customary in the
trade), (iii) obligations, whether or not assumed, secured by Liens or payable
out of the proceeds or production from Property now or hereafter owned or
acquired by such Person, (iv) obligations which are evidenced by notes,
acceptances, or other instruments, (v) obligations of such Person to purchase
securities or other Property arising out of or in connection with the sale of
the same or substantially similar securities or Property, (vi) Capitalized Lease
Obligations, (vii) obligations, contingent or otherwise, with respect to letters
of credit and bankers' acceptances, (viii) Contingent Obligations, (ix) Net
Xxxx-to-Market Exposure under Financial Contracts, (x) Off-Balance Sheet
Liabilities, and (xi) any other obligation for borrowed money or other financial
accommodation which in accordance with Agreement Accounting Principles would be
shown as a liability on a consolidated balance sheet of such Person.
"Indebtedness" of the Borrower includes the Indebtedness of any joint venture,
unless it is nonrecourse to the Borrower and its Subsidiaries.
"Interest Period" means, with respect to a Eurodollar Advance, a period
of one, two, three or six months or such other period agreed to by the Lenders
and the Borrower, commencing on a Business Day selected by the Borrower pursuant
to this Agreement. Such Interest Period shall end on but exclude the day which
corresponds numerically to such date one, two, three or six months or such other
agreed upon period thereafter, provided, however, that if there is no such
numerically corresponding day in such next, second, third or sixth succeeding
month or such other succeeding period, such Interest Period shall end on the
last Business Day of such next, second, third or sixth succeeding month or such
other succeeding period. If an Interest Period would otherwise end on a day
which is not a Business Day, such Interest Period shall end on the next
succeeding Business Day, provided, however, that if said next succeeding
Business Day falls in a new calendar month, such Interest Period shall end on
the immediately preceding Business Day.
"Investment" of a Person means any loan, advance, extension of credit
(other than accounts receivable arising in the ordinary course of business on
terms customary in the trade, but including accounts receivable from other
Persons which are not current assets or did not arise from sales to such other
Person in the ordinary course of business) or contribution of capital by such
Person; stocks, bonds, mutual funds, partnership interests, notes, debentures or
other securities owned by such Person; and any structured notes, Financial
Contracts, derivative financial instruments and other similar instruments or
contracts owned by such Person. Notwithstanding the foregoing, an Acquisition
shall not be deemed to be an Investment.
"JPMCB" means JPMorgan Chase Bank, N.A., a national banking
association, in its individual capacity, and its successors.
"LC Fee" is defined in Section 2.21.4.
10
"LC Issuer" means JPMCB (or any Affiliate of JPMCB designated by JPMCB)
or any of the other Lenders, as applicable, in its respective capacity as issuer
of Facility LCs hereunder.
"LC Obligations" means, at any time, the sum, without duplication, of
(i) the aggregate undrawn stated amount of all Facility LCs outstanding at such
time plus (ii) the aggregate unpaid amount at such time of all Reimbursement
Obligations.
"LC Payment Date" is defined in Section 2.21.5.
"Lender Increase Notice" is defined in Section 2.6.3(i) hereof.
"Lenders" means the lending institutions listed on the signature pages
of this Agreement and their respective successors and assigns. Unless otherwise
specified, the term "Lender" includes JPMCB in its capacity as Swing Line
Lender.
"Lending Installation" means, with respect to a Lender or an Agent, the
office, branch, subsidiary or affiliate of such Lender or Agent listed on the
administrative information sheets provided to the Administrative Agent in
connection herewith, or on a Schedule or otherwise selected by such Lender or
Agent pursuant to Section 2.18.
"Leverage Ratio" is defined in Section 6.21.1.
"Lien" means any lien (statutory or other), mortgage, pledge,
hypothecation, assignment, deposit arrangement, encumbrance or preference,
priority or other security interest or preferential arrangement of any kind or
nature whatsoever (including, without limitation, the interest of a vendor or
lessor under any conditional sale, Capitalized Lease or other title retention
agreement, and, in the case of stock, stockholders agreements, voting trust
agreements and all similar arrangements).
"Loan" means a Revolving Loan or a Swing Line Loan, as applicable.
"Loan Documents" means this Agreement, the Facility LC Applications,
the Guaranty, and all other documents, instruments, notes (including any Notes
issued pursuant to Section 2.14, if requested) and agreements executed in
connection therewith or contemplated thereby, as the same may be amended,
restated or otherwise modified and in effect from time to time.
"Loan Party" is defined in Section 4.1(i).
"Material Adverse Effect" means a material adverse effect on (i) the
business, Property, condition (financial or otherwise), operations, performance,
properties, results of operations or prospects of the Borrower and its
Subsidiaries taken as a whole, (ii) the ability of the Borrower or any of its
Subsidiaries to perform its respective obligations under the Loan Documents to
which it is a party, or (iii) the validity or enforceability of any of the Loan
Documents or the rights or remedies of the Agents, the LC Issuers or the Lenders
thereunder.
"Material Indebtedness" means Indebtedness in an outstanding principal
amount of $20,000,000 or more in the aggregate (or the equivalent thereof in any
currency other than U.S. dollars).
11
"Material Indebtedness Agreement" means any agreement under which any
Material Indebtedness was created or is governed or which provides for the
incurrence of Indebtedness in an amount which would constitute Material
Indebtedness (whether or not an amount of Indebtedness constituting Material
Indebtedness is outstanding thereunder).
"Modify" and "Modification" are defined in Section 2.21.1.
"Xxxxx'x" means Xxxxx'x Investors Service, Inc. and any successor
thereto.
"Multiemployer Plan" means a Plan maintained pursuant to a collective
bargaining agreement or any other arrangement to which the Borrower or any
member of the Controlled Group is a party to which more than one employer is
obligated to make contributions.
"Net Xxxx-to-Market Exposure" of a Person means, as of any date of
determination, the excess (if any) of all unrealized losses over all unrealized
profits of such Person arising from Financial Contracts. "Unrealized losses"
means the fair market value of the cost to such Person of replacing each
Financial Contract as of the date of determination (assuming such Financial
Contract were to be terminated as of that date), and "unrealized profits" means
the fair market value of the gain to such Person of replacing such Financial
Contract as of the date of determination (assuming such Financial Contract were
to be terminated as of that date).
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" is defined in Section 2.14(iv).
"Obligations" means all Loans, Reimbursement Obligations, advances,
debts, liabilities, obligations, covenants and duties owing by the Borrower to
any of the Agents, any LC Issuer, any Lender, the Arranger, any affiliate of the
Agents, any LC Issuer, or any Lender, the Arranger, or any indemnitee under the
provisions of Section 9.6 or any other provisions of the Loan Documents, in each
case of any kind or nature, present or future, arising under this Agreement or
any other Loan Document, whether or not evidenced by any note, guaranty or other
instrument, whether or not for the payment of money, whether arising by reason
of an extension of credit, loan, foreign exchange risk, guaranty,
indemnification, or in any other manner, whether direct or indirect (including
those acquired by assignment), absolute or contingent, due or to become due, now
existing or hereafter arising and however acquired. The term includes, without
limitation, all interest, charges, expenses, fees, attorneys' fees and
disbursements, paralegals' fees (in each case whether or not allowed), and any
other sum chargeable to the Borrower or any of its Subsidiaries under this
Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of borrowing but which does not constitute a liability on the balance
sheets of such Person, but excluding from this clause (iv) Operating Leases.
12
"Operating Lease" of a Person means any lease of Property (other than a
Capitalized Lease) by such Person as lessee which has an original term
(including any required renewals and any renewals effective at the option of the
lessor) of one year or more.
"Other Taxes" is defined in Section 3.5(ii).
"Outstanding Credit Exposure" means, as to any Lender at any time, the
sum of (i) the aggregate principal amount of its Revolving Loans outstanding at
such time, plus (ii) an amount equal to its Pro Rata Share of the obligations to
purchase participations in Swing Line Loans, plus (iii) an amount equal to its
Pro Rata Share of the LC Obligations at such time.
"Participants" is defined in Section 12.2.1.
"Payment Date" means the last day of each March, June, September and
December and the Facility Termination Date.
"PBGC" means the Pension Benefit Guaranty Corporation, or any successor
thereto.
"Permitted Acquisition" is defined in Section 6.15(vii).
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"Plan" means an employee benefit plan which is covered by Title IV of
ERISA or subject to the minimum funding standards under Section 412 of the Code
as to which the Borrower or any member of the Controlled Group may have any
liability.
"Pricing Schedule" means the Schedule identifying the Applicable Margin
and Applicable Fee Rate attached hereto and identified as such.
"Prime Rate" means a rate per annum equal to the prime rate of interest
announced from time to time by JPMCB or its parent (which is not necessarily the
lowest rate charged to any customer), changing when and as said prime rate
changes.
"Property" of a Person means any and all property, whether real,
personal, tangible, intangible, or mixed, of such Person, or other assets owned,
leased or operated by such Person.
"Proposed New Lender" is defined in Section 2.6.3(i) hereof.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment at such time (in
each case, as adjusted from time to time in accordance with the provisions of
this Agreement) and the denominator of which is the Aggregate Commitment at such
time, or, if the Aggregate Commitment has been terminated, a fraction the
numerator of which is such Lender's Outstanding Credit Exposure at such time and
the denominator of which is the sum of the Aggregate Outstanding Credit
Exposure.
13
"Purchase Price" means the total consideration and other amounts
payable in connection with any Acquisition, including, without limitation, any
portion of the consideration payable in cash, the value of any Capital Stock or
other equity interests of the Borrower (other than treasury stock of the
Borrower repurchased prior to the Closing Date) or any Subsidiary issued as
consideration for such Acquisition, all Indebtedness and other monetary
liabilities incurred or assumed in connection with such Acquisition and all
transaction costs and expenses incurred in connection with such Acquisition.
"Purchasers" is defined in Section 12.3.1.
"Regulation D" means Regulation D of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor thereto
or other regulation or official interpretation of said Board of Governors
relating to reserve requirements applicable to member banks of the Federal
Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by and to brokers and dealers of securities for the purpose
of purchasing or carrying margin stock (as defined therein).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks, non-banks and non-broker lenders for the purpose
of purchasing or carrying margin stocks applicable to member banks of the
Federal Reserve System.
"Regulation X" means Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by foreign lenders for the purpose of purchasing or carrying
margin stock (as defined therein).
"Reimbursement Obligations" means with respect to any LC Issuer, at any
time, the aggregate of all obligations of the Borrower then outstanding under
Section 2.21 to reimburse such LC Issuer for amounts paid by such LC Issuer in
respect of any one or more drawings under Facility LCs issued by such LC Issuer;
or, as the context may require, all such Reimbursement Obligations then
outstanding to reimburse all of the LC Issuers.
"Rentals" of a Person means the aggregate fixed amounts payable by such
Person under any Operating Lease.
"Reportable Event" means a reportable event, as defined in Section 4043
of ERISA and the regulations issued under such section, with respect to a Plan,
excluding, however, such events as to which the PBGC has by regulation or
otherwise waived the requirement of Section 4043(a) of ERISA that it be notified
within thirty (30) days of the occurrence of such event, provided, however, that
a failure to meet the minimum funding standard of Section 412 of the Code and of
Section 302 of ERISA shall be a Reportable Event regardless of the issuance of
any such waiver of the notice requirement in accordance with either Section
4043(a) of ERISA or Section 412(d) of the Code.
14
"Required Lenders" means Lenders in the aggregate having at least
fifty-one percent (51%) of the Aggregate Commitment or, if the Aggregate
Commitment has been terminated, Lenders in the aggregate holding at least
fifty-one percent (51%) of the Aggregate Outstanding Credit Exposure.
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on "Eurodollar
liabilities" (as defined in Regulation D).
"Revolving Loan" means, with respect to a Lender, each loan made by
such Lender pursuant to its commitment to lend set forth in Section 2.1 (or any
conversion or continuation thereof).
"Risk Based Capital Guidelines" is defined in Section 3.2.
"S&P" means Standard and Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc. and any successor thereto.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless
another document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Selling Lender" is defined in Section 2.6.3(ii).
"Single Employer Plan" means a Plan maintained by the Borrower or any
member of the Controlled Group for employees of the Borrower or any member of
the Controlled Group.
"Subsidiary" of a Person means (i) any corporation more than fifty
percent (50%) of the outstanding securities having ordinary voting power of
which shall at the time be owned or controlled, directly or indirectly, by such
Person or by one or more of its Subsidiaries or by such Person and one or more
of its Subsidiaries, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization more than fifty
percent (50%) of the ownership interests having ordinary voting power of which
shall at the time be so owned or controlled. Unless otherwise expressly
provided, all references herein to a "Subsidiary" shall mean a Subsidiary of the
Borrower.
"Substantial Portion" means, with respect to the Property of the
Borrower and its Subsidiaries, Property which (i) represents more than ten
percent (10%) of the consolidated assets of the Borrower and its Subsidiaries as
would be shown in the consolidated financial statements of the Borrower and its
Subsidiaries as at the end of the four fiscal quarter period ending with the
fiscal quarter immediately prior to the fiscal quarter in which such
15
determination is made, or (ii) is responsible for more than ten percent (10%) of
the Consolidated Net Income of the Borrower and its Subsidiaries as reflected in
the financial statements referred to in clause (i) above.
"Swing Line Borrowing Notice" is defined in Section 2.2.2.
"Swing Line Lender" means JPMCB or such other Lender which may succeed
to its rights and obligations as Swing Line Lender pursuant to the terms of this
Agreement.
"Swing Line Loan" means a Loan made available to the Borrower by the
Swing Line Lender pursuant to Section 2.2.
"Syndication Agent" means each of Fleet National Bank, SunTrust Bank,
Citicorp Leasing, Inc. and The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch,
in each case in its capacity as the syndication agent for the Lenders pursuant
to Article X, and not in its individual capacity as a Lender, and any successor
Syndication Agent appointed pursuant to Article X. "Taxes" means any and all
present or future taxes, duties, levies, imposts, deductions, charges or
withholdings, and any and all liabilities with respect to the foregoing, but
excluding Excluded Taxes.
"Transferee" is defined in Section 12.4.
"Transferred Credit" is defined in Section 2.6.3(ii).
"Type" means, with respect to any Advance, its nature as a Floating
Rate Advance or a Eurodollar Advance, and with respect to any Loan, its nature
as a Floating Rate Loan or a Eurodollar Loan.
"Unfunded Liabilities" means the amount (if any) by which the present
value of all vested and unvested accrued benefits under all Single Employer
Plans exceeds the fair market value of all such Plan assets allocable to such
benefits, all determined as of the then most recent valuation date for such
Plans using PBGC actuarial assumptions for single employer plan terminations.
"Unmatured Default" means an event which but for the lapse of time or
the giving of notice, or both, would constitute a Default.
"Wholly-Owned Subsidiary" of a Person means (i) any Subsidiary all of
the outstanding voting securities of which shall at the time be owned or
controlled, directly or indirectly, by such Person or one or more Wholly-Owned
Subsidiaries of such Person, or by such Person and one or more Wholly-Owned
Subsidiaries of such Person, or (ii) any partnership, limited liability company,
association, joint venture or similar business organization 100% of the
ownership interests having ordinary voting power of which shall at the time be
so owned or controlled.
The foregoing definitions shall be equally applicable to both the
singular and plural forms of the defined terms.
16
Any accounting terms used in this Agreement which are not specifically
defined herein shall have the meanings customarily given them in accordance with
Agreement Accounting Principles.
1.2. References. Any references to the Borrower's Subsidiaries
shall not in any way be construed as consent by the Administrative Agent or any
Lender to the establishment, maintenance or acquisition of any Subsidiary,
except as may otherwise be permitted hereunder.
ARTICLE II
THE CREDITS
2.1. Commitment. From and including the date of this Agreement and
prior to the Facility Termination Date, upon the satisfaction of the conditions
precedent set forth in Sections 4.1 and 4.2, as applicable, each Lender
severally and not jointly agrees, on the terms and conditions set forth in this
Agreement, to (i) make Revolving Loans to the Borrower, (ii) to participate in
Swing Line Loans and (iii) participate in Facility LCs issued upon the request
of the Borrower, provided that, after giving effect to the making of each
Revolving Loan, the making of each Swing Line Loan and the issuance of each such
Facility LC, such Lender's Outstanding Credit Exposure shall not exceed its
Commitment. Subject to the terms of this Agreement, the Borrower may borrow,
repay and reborrow Revolving Loans at any time prior to the Facility Termination
Date. The Commitments to lend hereunder shall expire automatically on the
Facility Termination Date. The LC Issuers will issue Facility LCs hereunder on
the terms and conditions set forth in Section 2.21.
2.2. Swing Line Loans.
2.2.1. Amount of Swing Line Loans. Upon the satisfaction of the
conditions precedent set forth in Section 4.2 and, if such Swing Line Loan is to
be made on the date of the initial Advance hereunder, the satisfaction of the
conditions precedent set forth in Section 4.1 as well, from and including the
date of this Agreement and prior to the Facility Termination Date, the Swing
Line Lender, on the terms and conditions set forth in this Agreement, shall make
Swing Line Loans to the Borrower from time to time in an aggregate principal
amount not to exceed $10,000,000, provided that the Aggregate Outstanding Credit
Exposure shall not at any time exceed the Aggregate Commitment, and provided
further that at no time shall the sum of (i) the Swing Line Lender's share of
the obligations to participate in the Swing Line Loans, plus (ii) the
outstanding Revolving Loans made by the Swing Line Lender pursuant to Section
2.1, plus (iii) the Swing Line Lender's Pro Rata Share of the LC Obligations,
exceed the Swing Line Lender's Commitment at such time. Subject to the terms of
this Agreement, the Borrower may borrow, repay and reborrow Swing Line Loans at
any time prior to the Facility Termination Date.
2.2.2. Borrowing Notice. The Borrower shall deliver to the
Administrative Agent and the Swing Line Lender irrevocable notice (a "Swing Line
Borrowing Notice") not later than 12:00 noon (Chicago time) on the Borrowing
Date of each Swing Line Loan, specifying (i) the applicable Borrowing Date
(which date shall be a Business Day), and (ii) the amount of the requested Swing
Line Loan which shall be an amount not less than $300,000 and integral multiples
17
of $100,000 in excess thereof. Each Swing Line Loan shall bear interest on the
outstanding principal amount thereof, for each day from and including the day
such Swing Line Loan is made to but excluding the date it is paid, at a rate per
annum equal, at the Borrower's option, to the Floating Rate or at a rate per
annum agreed to by the Borrower and the Swing Line Lender at the time of
borrowing.
2.2.3. Making of Swing Line Loans. Promptly after receipt of a Swing
Line Borrowing Notice, the Administrative Agent shall notify each Lender by fax,
or other similar form of transmission, of the requested Swing Line Loan. Not
later than 2:00 p.m. (Chicago time) on the applicable Borrowing Date, the Swing
Line Lender shall make available the Swing Line Loan, in funds immediately
available in Chicago, to the Administrative Agent at its address specified
pursuant to Article XIII. The Administrative Agent will promptly deposit the
funds so received from the Swing Line Lender in the Borrower's account with the
Administrative Agent on the Borrowing Date.
2.2.4. Repayment of Swing Line Loans. Each Swing Line Loan shall be
paid in full by the Borrower on or before the fifth (5th) Business Day after the
Borrowing Date for such Swing Line Loan. In addition, the Swing Line Lender (i)
may at any time in its sole discretion with respect to any outstanding Swing
Line Loan, or (ii) shall on the fifth (5th) Business Day after the Borrowing
Date of any Swing Line Loan, require each Lender (including the Swing Line
Lender) to make a Revolving Loan (subject to the limitations set forth in
Section 2.1) in the amount of such Lender's Pro Rata Share of such Swing Line
Loan (including, without limitation, any interest accrued and unpaid thereon),
for the purpose of repaying such Swing Line Loan. Each Lender shall make
available its required Revolving Loan, in funds immediately available in Chicago
to the Administrative Agent at its address specified pursuant to Article XIII,
by no later than (i) 4:00 p.m. (Chicago time) on the date of any notice received
on or before 2:00 p.m. (Chicago time) on such date pursuant to this Section
2.2.4 and (ii) 10:00 a.m. (Chicago time) on the Business Day immediately
following the date of any such notice received after 2:00 p.m. (Chicago time) on
such date. Revolving Loans made pursuant to this Section 2.2.4 shall initially
be Floating Rate Loans and thereafter may be continued as Floating Rate Loans or
converted into Eurodollar Loans in the manner provided in Section 2.10 and
subject to the other conditions and limitations set forth in this Article II.
Unless a Lender shall have notified the Swing Line Lender, prior to its making
any Swing Line Loan, that any applicable condition precedent set forth in
Sections 4.1 or 4.2 had not then been satisfied, such Lender's obligation to
make Revolving Loans pursuant to this Section 2.2.4 to repay Swing Line Loans
shall be unconditional, continuing, irrevocable and absolute and shall not be
affected by any circumstances, including, without limitation, (a) any set-off,
counterclaim, recoupment, defense or other right which such Lender may have
against any Agent, the Swing Line Lender or any other Person, (b) the occurrence
or continuance of a Default or Unmatured Default, (c) any adverse change in the
condition (financial or otherwise) of the Borrower, or (d) any other
circumstances, happening or event whatsoever. In the event that any Lender fails
to make payment to the Administrative Agent of any amount due under this Section
2.2.4, the Administrative Agent shall be entitled to receive, retain and apply
against such obligation the principal and interest otherwise payable to such
Lender hereunder until the Administrative Agent receives such payment from such
Lender or such obligation is otherwise fully satisfied. In addition to the
foregoing, if for any reason any Lender fails to make, or is prohibited from
making, payment to the Administrative Agent of any amount due under this Section
2.2.4, such Lender shall be deemed, at the option of the Administrative Agent,
to have unconditionally and irrevocably purchased from the Swing Line Lender,
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without recourse or warranty, an undivided interest and participation in the
applicable Swing Line Loan in the amount of such Revolving Loan, and such
interest and participation may be recovered from such Lender together with
interest thereon at the Federal Funds Effective Rate for each day during the
period commencing on the date of demand and ending on the date such amount is
received. On the Facility Termination Date, the Borrower shall repay in full the
outstanding principal balance of the Swing Line Loans.
2.3. Required Payments; Termination.
2.3.1. Required Payments. The Aggregate Outstanding Credit Exposure
and all other unpaid Obligations (other than LC Obligations that have been
cash collateralized pursuant to Section 8.1), shall be paid in full by the
Borrower on the Facility Termination Date.
2.3.2. Termination. Notwithstanding the termination of this
Agreement on the Facility Termination Date, until all of the Obligations (other
than contingent indemnity obligations) shall have been fully paid and satisfied
and all financing arrangements among the Borrower and the Lenders hereunder and
under the other Loan Documents shall have been terminated, all of the rights and
remedies under this Agreement and the other Loan Documents shall survive and the
Administrative Agent shall be entitled to retain its security interest in and to
all existing and future collateral (if any).
2.4. Ratable Loans. Each Advance hereunder (other than any Swing
Line Loan) shall consist of Revolving Loans made from the several Lenders
ratably according to their Pro Rata Shares.
2.5. Types of Advances. The Advances may be Revolving Loans
consisting of Floating Rate Advances or Eurodollar Advances, or a combination
thereof, selected by the Borrower in accordance with Sections 2.9 and 2.10, or
Swing Line Loans selected by the Borrower in accordance with Section 2.2.
2.6. Commitment Fee; Reductions in Aggregate Commitment; Increases
in Aggregate Commitment.
2.6.1. Commitment Fee. The Borrower agrees to pay to the
Administrative Agent for the account of each Lender a commitment fee (the
"Commitment Fee") at a per annum rate equal to the Applicable Fee Rate on the
daily unused portion of such Lender's Commitment from the Closing Date to and
including the Facility Termination Date, payable quarterly in arrears on each
Payment Date hereafter including, without limitation, the Facility Terminate
Date. Swing Line Loans shall count as usage of any Lender's Commitment (in the
amount of such Lender's Pro Rata Share thereof) for the purpose of calculating
the Commitment Fee due hereunder.
2.6.2. Reductions in Aggregate Commitment. The Borrower may
permanently reduce the Aggregate Commitment in whole, or in part ratably among
the Lenders in a minimum amount of $3,000,000 (and in multiples of $3,000,000
if in excess thereof), upon at least three (3) Business Days' prior written
notice to the Administrative Agent of such reduction, which notice shall specify
the amount of any such reduction; provided, however, that the amount of the
Aggregate Commitment may not be reduced below the Aggregate Outstanding Credit
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Exposure. All accrued Commitment Fees shall be payable on the effective date
of any termination of all of the obligations of the Lenders to make Credit
Extensions hereunder.
2.6.3. Increase of Aggregate Commitment. (i) At any time, the
Borrower may request that the Aggregate Commitment be increased, provided that,
without the prior written consent of all of the Lenders, (a) the Aggregate
Commitment shall at no time exceed $200,000,000; (b) the Borrower shall not
previously have reduced the Aggregate Commitment; and (c) the Borrower shall not
be entitled to make such request more than twice. Such request shall be made
in a written notice given to the Administrative Agent and the Lenders by the
Borrower not less than twenty (20) Business Days prior to the proposed effective
date of such increase, which notice (a "Commitment Increase Notice") shall
specify the amount of the proposed increase in the Aggregate Commitment and the
proposed effective date of such increase. In the event of such a Commitment
Increase Notice, each of the Lenders shall be given the opportunity to
participate in the requested increase ratably in proportions that their
respective Commitments bear to the Aggregate Commitment. No Lender shall have
any obligation to increase its Commitment pursuant to a Commitment Increase
Notice. On or prior to the date that is fifteen (15) Business Days after receipt
of the Commitment Increase Notice, each Lender shall submit to the
Administrative Agent a notice indicating the maximum amount by which it is
willing to increase its Commitment in connection with such Commitment Increase
Notice (any such notice to the Administrative Agent being herein a "Lender
Increase Notice"). Any Lender which does not submit a Lender Increase Notice to
the Administrative Agent prior to the expiration of such fifteen (15) Business
Day period shall be deemed to have denied any increase in its Commitment. In the
event that the increases of Commitments set forth in the Lender Increase Notices
exceed the amount requested by the Borrower in the Commitment Increase Notice,
the Administrative Agent and the Arranger shall have the right, in consultation
with the Borrower, to allocate the amount of increases necessary to meet the
Borrower's Commitment Increase Notice. In the event that the Lender Increase
Notices are less than the amount requested by the Borrower, not later than three
(3) Business Days prior to the proposed effective date the Borrower may notify
the Administrative Agent of any financial institution that shall have agreed to
become a "Lender" party hereto (a "Proposed New Lender") in connection with the
Commitment Increase Notice. Any Proposed New Lender shall be subject to the
consent of the Administrative Agent (which consent shall not be unreasonably
withheld). If the Borrower shall not have arranged any Proposed New Lender(s)
to commit to the shortfall (if any) from the Lender Increase Notices, then the
Borrower shall have the option to reduce the amount of its Commitment Increase
Notice to the aggregate amount set forth in the Lender Increase Notices or to
withdraw its Commitment Increase Notice. Based upon the Lender Increase
Notices, any allocations made in connection therewith and any notice regarding
any Proposed New Lender, if applicable, the Administrative Agent shall notify
the Borrower and the Lenders on or before the Business Day immediately prior to
the proposed effective date of the amount of each Lender's and Proposed New
Lenders' Commitment (the "Effective Commitment Amount") and the amount of the
Aggregate Commitment, which amount shall be effective on the following Business
Day. Any increase in the Aggregate Commitment shall be subject to the following
conditions precedent: (A) the Borrower shall have obtained the consent thereto
of each Guarantor and its reaffirmation of the Loan Document(s) executed by it,
which consent and reaffirmation shall be in writing and in form and substance
reasonably satisfactory to the Administrative Agent, (B) as of the date of the
Commitment Increase Notice and as of the proposed effective date of the increase
in the Aggregate Commitment, all representations and warranties made by any Loan
Party in any Loan Document shall be true and correct in all material respects as
though made on such date and no event shall have occurred and then be continuing
which constitutes a Default or Unmatured Default, (C) the Borrower, the
Administrative Agent and each Proposed New Lender or Lender that shall have
20
agreed to provide a "Commitment" in support of such increase in the Aggregate
Commitment shall have executed and delivered a "Commitment and Acceptance"
substantially in the form of Exhibit I hereto, (D) counsel for the Borrower and
for the Guarantors shall have provided to the Administrative Agent supplemental
opinions in form and substance reasonably satisfactory to the Administrative
Agent and (E) the Borrower and each Proposed New Lender shall otherwise have
executed and delivered such other instruments and documents as may be required
under Article IV or that the Administrative Agent shall have reasonably
requested in connection with such increase. If any fee shall be charged by the
Lenders whose Commitment is increasing in connection with any such increase,
such fee shall be in accordance with then prevailing market conditions, which
market conditions shall have been reasonably documented by the Administrative
Agent to the Borrower. Upon satisfaction of the conditions precedent to any
increase in the Aggregate Commitment, the Administrative Agent shall promptly
advise the Borrower and each Lender of the effective date of such increase. Upon
the effective date of any increase in the Aggregate Commitment that is provided
by a Proposed New Lender, such Proposed New Lender shall be a party to this
Agreement as a Lender and shall have the rights and obligations of a Lender
hereunder. Nothing contained herein shall constitute, or otherwise be deemed to
be, a commitment on the part of any Lender to increase its Commitment hereunder
at any time.
(ii) For purposes of this clause (ii), (A) the term "Buying
Lender(s)" shall mean (1) each Lender the Effective Commitment Amount of which
is greater than its Commitment prior to the effective date of any increase in
the Aggregate Commitment and (2) each Proposed New Lender that is allocated an
Effective Commitment Amount in connection with any Commitment Increase Notice,
and (b) the term "Selling Lender(s)" shall mean each Lender whose Commitment is
not being increased from that in effect prior to such increase in the Aggregate
Commitment. Effective on the effective date of any increase in the Aggregate
Commitment pursuant to clause (i) above, each Selling Lender hereby sells,
grants, assigns and conveys to each Buying Lender, without recourse, warranty,
or representation of any kind, except as specifically provided herein, an
undivided percentage of such Selling Lender's right, title and interest in and
to its Outstanding Credit Exposure (the "Transferred Credit") in the respective
dollar amounts and percentages necessary so that, from and after such sale, each
such Selling Lender's Outstanding Credit Exposure shall equal such Selling
Lender's Pro Rata Share (calculated based upon the Effective Commitment Amounts)
of the Aggregate Outstanding Credit Exposure. Effective on the effective date of
the increase in the Aggregate Commitment pursuant to clause (i) above, each
Buying Lender hereby purchases and accepts such grant, assignment and conveyance
of the Transferred Credit from the Selling Lenders. Each Buying Lender hereby
agrees that its respective purchase price for the Transferred Credit purchased
hereby shall equal the respective dollar amount necessary so that, from and
after such payments, each Buying Lender's Outstanding Credit Exposure shall
equal such Buying Lender's Pro Rata Share (calculated based upon the Effective
Commitment Amounts) of the Aggregate Outstanding Credit Exposure. Such amount
shall be payable on the effective date of the increase in the Aggregate
Commitment by wire transfer of immediately available funds to the Administrative
Agent. The Administrative Agent, in turn, shall wire transfer any such funds
received to the Selling Lenders, in same day funds, for the sole account of the
Selling Lenders. Each Selling Lender hereby represents and warrants to each
Buying Lender that such Selling Lender owns the Outstanding Credit Exposure
being sold and assigned hereby for its own account and has not sold, transferred
21
or encumbered any or all of its interest in such Outstanding Credit Exposure,
except for participations which will be extinguished upon payment to Selling
Lender of an amount equal to the portion of the Outstanding Credit Exposure
being sold by such Selling Lender. Each Buying Lender hereby acknowledges and
agrees that, except for each Selling Lender's representations and warranties
contained in the foregoing sentence, each such Buying Lender has entered into
its Commitment and Acceptance with respect to such increase on the basis of its
own independent investigation and has not relied upon, and will not rely upon,
any explicit or implicit written or oral representation, warranty or other
statement of the Lenders or the Administrative Agent concerning the
authorization, execution, legality, validity, effectiveness, genuineness,
enforceability or sufficiency of this Agreement or the other Loan Documents. The
Borrower hereby agrees to compensate each Selling Lender for all losses,
expenses and liabilities incurred by each Lender in connection with the sale and
assignment of any Eurodollar Loan hereunder on the terms and in the manner as
set forth in Section 3.4.
2.7. Minimum Amount of Each Advance. Each Eurodollar Advance shall
be in the minimum amount of $3,000,000 (and in multiples of $1,000,000 if in
excess thereof), and each Floating Rate Advance shall be in the minimum amount
of $3,000,000 (and in multiples of $1,000,000 if in excess thereof), provided,
however, that any Floating Rate Advance may be in the amount of the Available
Aggregate Commitment.
2.8. Optional Principal Payments. The Borrower may from time to
time pay, without penalty or premium, all outstanding Floating Rate Advances, or
any portion of the outstanding Floating Rate Advances, in a minimum aggregate
amount of $3,000,000 or any integral multiple of $1,000,000 in excess thereof,
upon prior notice to the Administrative Agent at or before 10:00 a.m. (Chicago
time) on the date of such payment. The Borrower may from time to time pay,
subject to the payment of any funding indemnification amounts required by
Section 3.4 but without penalty or premium, all outstanding Eurodollar Advances
or, in a minimum aggregate amount of $3,000,000 or any integral multiple of
$1,000,000 in excess thereof, any portion of the outstanding Eurodollar
Advances upon three (3) Business Days' prior notice to the Administrative Agent.
The Borrower may at any time pay, without penalty or premium, all outstanding
Swing Line Loans or, in a minimum amount of $300,000 and increments of $100,000
in excess thereof, any portion of the outstanding Swing Line Loans, with notice
to the Administrative Agent and the Swing Line Lender by 11:00 a.m. (Chicago
time) on the date of repayment.
2.9. Method of Selecting Types and Interest Periods for New
Advances; Method of Borrowing.
2.9.1. Method of Selecting Types and Interest Periods for New
Advances. Other than with respect to Swing Line Loans (which shall be governed
by Section 2.2), the Borrower shall select the Type of Advance and, in the case
of each Eurodollar Advance, the Interest Period applicable thereto from time to
time; provided that there shall be no more than seven (7) Interest Periods in
effect with respect to all of the Revolving Loans at any time, unless such limit
22
has been waived by the Administrative Agent in its sole discretion. The
Borrower shall give the Administrative Agent irrevocable notice (a "Borrowing
Notice") not later than 10:00 a.m. (Chicago time) on the Borrowing Date of each
Floating Rate Advance and three (3) Business Days before the Borrowing Date
for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto.
2.9.2. Method of Borrowing. On each Borrowing Date, each Lender
shall make available its Loan or Loans not later than noon, Chicago time, in
Federal or other funds immediately available to the Administrative Agent, in
Chicago, Illinois at its address specified in or pursuant to Article XIII. The
Administrative Agent will deposit the funds so received from the Lenders in the
Borrower's account with the Administrative Agent at the Administrative Agent's
aforesaid address. Notwithstanding the foregoing provisions of this Section
2.9.2, to the extent that a Loan made by a Lender matures on the Borrowing Date
of a requested Loan, such Lender shall apply the proceeds of the Loan it is then
making to the repayment of principal of the maturing Loan.
2.10. Conversion and Continuation of Outstanding Advances. Floating
Rate Advances shall continue as Floating Rate Advances unless and until such
Floating Rate Advances are converted into Eurodollar Advances pursuant to this
Section 2.10 or are repaid in accordance with Section 2.8. Each Eurodollar
Advance shall continue as a Eurodollar Advance until the end of the then
applicable Interest Period therefor, at which time each such Eurodollar Advance
shall be automatically converted into a Floating Rate Advance unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.8 or (y) the
Borrower shall have given the Administrative Agent a Conversion/Continuation
Notice (as defined below) requesting that, at the end of such Interest Period,
such Eurodollar Advance continue as a Eurodollar Advance for the same or another
Interest Period. Subject to the terms of Section 2.7, the Borrower may elect
from time to time to convert all or any part of a Floating Rate Advance (other
than a Swing Line Loan) into a Eurodollar Advance, provided that any conversion
of any Eurodollar Advance shall be made on, and only on, the last day of the
Interest Period applicable thereto. The Borrower shall give the Administrative
Agent irrevocable notice (a "Conversion/Continuation Notice") of each conversion
of a Floating Rate Advance into a Eurodollar Advance or continuation of a
Eurodollar Advance not later than 10:00 a.m. (Chicago time) at least three (3)
Business Days prior to the date of the requested conversion or continuation,
specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to be
converted or continued, and
(iii) the amount of such Advance which is to be converted into or
continued as a Eurodollar Advance and the duration of the
Interest Period applicable thereto.
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Promptly after receipt of any Conversion/Continuation Notice, the Administrative
Agent shall provide the Lenders with notice thereof.
2.11. Changes in Interest Rate, etc. Each Floating Rate Advance
shall bear interest on the outstanding principal amount thereof, for each day
from and including the date such Advance is made or is automatically converted
from a Eurodollar Advance into a Floating Rate Advance pursuant to Section 2.10,
to but excluding the date it is paid or is converted into a Eurodollar Advance
pursuant to Section 2.10 hereof, at a rate per annum equal to the Floating Rate
for such day. Changes in the rate of interest on that portion of any Advance
maintained as a Floating Rate Advance will take effect simultaneously with each
change in the Alternate Base Rate. Each Eurodollar Advance shall bear interest
on the outstanding principal amount thereof from and including the first day of
the Interest Period applicable thereto to (but not including) the last day of
such Interest Period at the interest rate determined by the Administrative Agent
as applicable to such Eurodollar Advance based upon the Borrower's selections
under Sections 2.9 and 2.10 and otherwise in accordance with the terms hereof.
No Interest Period may end after the Facility Termination Date.
2.12. Rates Applicable After Default. Notwithstanding anything to
the contrary contained in Section 2.9, 2.10 or 2.11, during the continuance of a
Default or Unmatured Default the Required Lenders may, at their option, by
notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that no
Advance may be made as, converted into or continued as a Eurodollar Advance.
During the continuance of a Default the Required Lenders may, at their option,
by notice to the Borrower (which notice may be revoked at the option of the
Required Lenders notwithstanding any provision of Section 8.2 requiring
unanimous consent of the Lenders to changes in interest rates), declare that (i)
each Eurodollar Advance shall bear interest for the remainder of the applicable
Interest Period at the rate otherwise applicable to such Interest Period plus 2%
per annum, (ii) each Floating Rate Advance shall bear interest at a rate per
annum equal to the Floating Rate in effect from time to time plus 2% per annum
and (iii) the LC Fee shall be increased by 2% per annum, provided that, during
the continuance of a Default under Section 7.6 or 7.7, the interest rates set
forth in clauses (i) and (ii) above and the increase in the LC Fee set forth in
clause (iii) above shall be applicable to all Credit Extensions without any
election or action on the part of the Administrative Agent or any Lender.
2.13. Method of Payment. All payments of the Obligations hereunder
shall be made, without setoff, deduction, or counterclaim, in immediately
available funds to the Administrative Agent at the Administrative Agent's
address specified pursuant to Article XIII, or at any other Lending Installation
of the Administrative Agent specified in writing by the Administrative Agent to
the Borrower, by 12:00 noon (Chicago time) on the date when due and shall
(except (i) in the case of Reimbursement Obligations for which the applicable LC
Issuer has not been fully indemnified by the Lenders or (ii) with respect to
repayments of Swing Line Loans) be applied ratably by the Administrative Agent
among the Lenders. Each payment delivered to the Administrative Agent for the
account of any Lender shall be delivered promptly by the Administrative Agent to
such Lender in the same type of funds that the
24
Administrative Agent received at such Lender's address specified pursuant to
Article XIII or at any Lending Installation specified in a notice received
by the Administrative Agent from such Lender. Each reference to the
Administrative Agent in this Section 2.13 shall also be deemed to refer, and
shall apply equally, to the applicable LC Issuer, in the case of payments
required to be made by the Borrower to such LC Issuer pursuant to Section
2.21.6. The Administrative Agent is hereby authorized, upon the occurrence and
during the continuance of a Default, to charge the account of the Borrower
maintained with JPMCB or any of its Affiliates for each payment of principal,
interest and fees as it becomes due hereunder.
2.14. Noteless Agreement; Evidence of Indebtedness.
(i) Each Lender shall maintain in accordance with its usual
practice an account or accounts evidencing the indebtedness of the Borrower to
such Lender resulting from each Loan made by such Lender from time to time,
including the amounts of principal and interest payable and paid to such Lender
from time to time hereunder.
(ii) The Administrative Agent shall also maintain accounts in
which it will record (a) the date and the amount of each Revolving Loan made
hereunder, the Type thereof and the Interest Period, if any, applicable thereto,
(b) the amount of any principal or interest due and payable or to become due and
payable from the Borrower to each Lender hereunder, (c) the effective date and
amount of each Assignment Agreement delivered to and accepted by it and the
parties thereto pursuant to Section 12.3, (d) the original stated amount
of each Facility LC and the amount of LC Obligations outstanding at any time,
(e) the amount of any sum received by the Administrative Agent hereunder from
the Borrower and each Lender's share thereof, and (f) all other appropriate
debits and credits as provided in this Agreement, including, without limitation,
all fees, charges, expenses and interest.
(iii) The entries maintained in the accounts maintained pursuant to
clauses (i) and (ii) above shall be prima facie evidence of the existence and
amounts of the Obligations therein recorded; provided, however, that the failure
of the Administrative Agent or any Lender to maintain such accounts or any error
therein shall not in any manner affect the obligation of the Borrower to repay
the Obligations in accordance with their terms.
(iv) Any Lender may request that its Loans be evidenced by a
promissory note or, in the case of the Swing Line Lender, promissory notes
representing its Revolving Loans and Swing Line Loans, respectively,
substantially in the form of Exhibit E, with appropriate changes for notes
evidencing Swing Line Loans (each, a "Note"). In such event, the Borrower shall
prepare, execute and deliver to such Lender such Note or Notes payable to the
order of such Lender. Thereafter, the Loans evidenced by each such Note and
interest thereon shall at all times (prior to any assignment pursuant to Section
12.3) be represented by one or more Notes payable to the order of the payee
named therein, except to the extent that any such Lender subsequently returns
any such Note for cancellation and requests that such Loans once again be
evidenced as described in clauses (i) and (ii) above.
2.15. Telephonic Notices. The Borrower hereby authorizes the
Lenders and the Administrative Agent to extend, convert or continue Advances,
effect selections of Types of Advances and transfer funds based on telephonic
notices made by any person or persons the Administrative Agent or any Lender in
good faith believes to be acting on behalf of the Borrower, it being understood
25
that the foregoing authorization is specifically intended to allow Borrowing
Notices and Conversion/Continuation Notices to be given telephonically. The
Borrower agrees to deliver promptly to the Administrative Agent a written
confirmation, signed by an Authorized Officer, if such confirmation is requested
by the Administrative Agent or any Lender, of each telephonic notice. If the
written confirmation differs in any material respect from the action taken by
the Administrative Agent and the Lenders, the records of the Administrative
Agent and the Lenders shall govern absent manifest error.
2.16. Interest Payment Dates; Interest and Fee Basis. Interest
accrued on each Floating Rate Advance and Swing Line Loan shall be payable in
arrears on each Payment Date, commencing with the first such date to occur after
the Closing Date, on any date on which the Floating Rate Advance or Swing Line
Loan is prepaid, whether due to acceleration or otherwise, and at maturity.
Interest accrued on that portion of the outstanding principal amount of any
Floating Rate Advance converted into a Eurodollar Advance on a day other than a
Payment Date shall be payable on the date of conversion. Interest accrued on
each Eurodollar Advance shall be payable on the last day of its applicable
Interest Period, on any date on which the Eurodollar Advance is prepaid,
whether by acceleration or otherwise, and at maturity; provided that interest
accrued on each Eurodollar Advance having an Interest Period longer than three
(3) months shall also be payable on the last day of each three-month interval
during such Interest Period. Interest on Eurodollar Advances, Swing Line
Loans, LC Fees and Commitment Fees shall be calculated for actual days elapsed
on the basis of a 360-day year; interest on Floating Rate Advances shall be
calculated for actual days elapsed on the basis of a 365/366-day year. Interest
shall be payable for the day an Advance is made but not for the day of any
payment on the amount paid if payment is received prior to 12:00 noon (Chicago
time) at the place of payment. If any payment of principal of or interest on an
Advance, any fees or any other amounts payable to any Agent or any Lender
hereunder shall become due on a day which is not a Business Day, such payment
shall be made on the next succeeding Business Day and, in the case of a
principal payment, such extension of time shall be included in computing
interest, fees and commissions in connection with such payment.
2.17. Notification of Advances, Interest Rates, Prepayments and
Commitment Reductions. Promptly after receipt thereof, the Administrative Agent
will notify each Lender of the contents of each Aggregate Commitment reduction
notice, Borrowing Notice, Swing Line Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder. Promptly after notice
from the applicable LC Issuer, the Administrative Agent will notify each Lender
of the contents of each request for issuance of a Facility LC hereunder. The
Administrative Agent will notify each Lender of the interest rate applicable to
each Eurodollar Advance promptly upon determination of such interest rate and
will give each Lender prompt notice of each change in the Alternate Base Rate.
2.18. Lending Installations. Subject to Section 3.6, each Lender
may book its Loans and its participation in any LC Obligations and Swing Line
Loans and the LC Issuers may book the Facility LCs at any Lending Installation
selected by such Lender or the applicable LC Issuer, as the case may be, and may
change its Lending Installation from time to time. All terms of this Agreement
shall apply to any such Lending Installation and the Loans, Facility LCs,
participations in LC Obligations and Swing Line Loans and any Notes issued
hereunder shall be deemed held by each Lender or the applicable LC Issuer, as
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the case may be, for the benefit of any such Lending Installation. Each Lender
and each LC Issuer may, by written notice to the Administrative Agent and the
Borrower in accordance with Article XIII, designate replacement or additional
Lending Installations through which Loans will be made or participated in by it
or Facility LCs will be issued by it and for whose account Loan payments or
payments with respect to Facility LCs are to be made.
2.19. Non-Receipt of Funds by the Administrative Agent. Unless the
Borrower or a Lender, as the case may be, notifies the Administrative Agent
prior to the time on which it is scheduled to make payment to the Administrative
Agent of (i) in the case of a Lender, the proceeds of a Loan or (ii) in the case
of the Borrower, a payment of principal, interest or fees to the Administrative
Agent for the account of the Lenders, that it does not intend to make such
payment, the Administrative Agent may assume that such payment has been made.
The Administrative Agent may, but shall not be obligated to, make the amount of
such payment available to the intended recipient in reliance upon such
assumption. If such Lender or the Borrower, as the case may be, has not in fact
made such payment to the Administrative Agent, the recipient of such payment
shall, on demand by the Administrative Agent, repay to the Administrative Agent
the amount so made available together with interest thereon in respect of each
day during the period commencing on the date such amount was so made available
by the Administrative Agent until the date the Administrative Agent recovers
such amount at a rate per annum equal to (x) in the case of payment by a Lender,
the Federal Funds Effective Rate for such day for the first three (3) days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by the Borrower, the interest rate applicable to the relevant Loan,
including the interest rate applicable pursuant to Section 2.12.
2.20. Replacement of Lender. The Borrower shall have the right, in
its sole discretion, at any time and from time to time to terminate the
Commitment of any Lender (an "Affected Lender"), in whole, upon at least thirty
(30) days' prior notice to the Administrative Agent and such Lender, (a) if such
Lender has failed or refused to make available the full amount of any Revolving
Loan as required by its Commitment hereunder, or (b) if such Lender has demanded
that the Borrower make any additional payment to such Lender pursuant to Section
3.1, 3.2 or 3.5, or if such Lender's obligation to make or continue, or convert
Floating Rate Advances into, Eurodollar Advances has been suspended pursuant to
Section 3.3; provided that no Default or Unmatured Default shall have occurred
and be continuing at the time of such replacement, and that, concurrently with
such replacement, (i) another bank or other entity which is reasonably
satisfactory to the Borrower and the Administrative Agent shall agree, as of
such date, to purchase for cash the Advances and other Obligations due to the
Affected Lender pursuant to an Assignment Agreement substantially in the form of
Exhibit C and to become a Lender for all purposes under this Agreement and to
assume all obligations of the Affected Lender to be terminated as of such date
and to comply with the requirements of Section 12.3 applicable to assignments,
and (ii) the Borrower shall pay to such Affected Lender in immediately available
funds on the day of such replacement (A) all interest, fees and other amounts
then accrued but unpaid to such Affected Lender by the Borrower hereunder to and
including the date of termination, including without limitation payments due to
such Affected Lender under Sections 3.1, 3.2 and 3.5, to the extent applicable,
and (B) an amount, if any, equal to the payment which would have been due to
such Lender on the day of such replacement under Section 3.4 had the Loans of
such Affected Lender been prepaid on such date rather than sold to the
replacement Lender.
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2.21. Facility LCs.
2.21.1. Issuance; Transitional Facility LCs.
(i) Issuance. The LC Issuers hereby agree, on the terms and
conditions set forth in this Agreement, to issue standby and performance letters
of credit (each, together with the letters of credit deemed issued by the LC
Issuers hereunder pursuant to Section 2.21.1(ii), a "Facility LC") and to renew,
extend, increase, decrease or otherwise modify each Facility LC ("Modify," and
each such action a "Modification"), from time to time from and including the
date of this Agreement and prior to the Facility Termination Date upon the
request of the Borrower; provided that immediately after each such Facility LC
is issued or Modified, (i) the aggregate amount of the outstanding LC
Obligations shall not exceed $40,000,000 and (ii) the Aggregate Outstanding
Credit Exposure shall not exceed the Aggregate Commitment. No Facility LC shall
have an expiry date later than one year after its issuance; provided that any
Facility LC may provide for the renewal thereof for additional one-year periods.
If any Facility LCs remain outstanding five (5) days prior to the Facility
Termination Date, the Borrower shall comply with Sections 2.21.11 and 8.1
(whether or not any Default exists at such time) with respect to such Facility
LCs and the Facility LC Collateral Account.
(ii) Transitional Provision. Schedule 2.21 contains a schedule of
certain letters of credit issued by JPMCB for the account of the Borrower prior
to the Closing Date. Subject to the satisfaction of the conditions contained in
Sections 4.1 and 4.2, from and after the Closing Date such letters of credit
shall be deemed to be Facility LCs issued pursuant to this Section 2.21.
2.21.2. Participations. On the date of this Agreement, with respect
to the Facility LCs identified on Schedule 2.21, and upon the issuance or
Modification by the applicable LC Issuer of a Facility LC in accordance with
this Section 2.21, such LC Issuer shall be deemed, without further action by any
party hereto, to have unconditionally and irrevocably sold to each Lender, and
each Lender shall be deemed, without further action by any party hereto, to have
unconditionally and irrevocably purchased from such LC Issuer, a participation
in such Facility LC (and each Modification thereof) and the related LC
Obligations in proportion to its Pro Rata Share.
2.21.3. Notice. Subject to Section 2.21.1, the Borrower shall give
the applicable LC Issuer notice prior to 10:00 a.m. (Chicago time) at least
three (3) Business Days prior to the proposed date of issuance or Modification
of each Facility LC, specifying the beneficiary, the proposed date of
issuance (or Modification) and the expiry date of such Facility LC, and
describing the proposed terms of such Facility LC and the nature of the
transactions proposed to be supported thereby. Upon receipt of such notice, the
applicable LC Issuer shall promptly notify the Administrative Agent, and the
Administrative Agent shall promptly notify each Lender, of the contents thereof
and of the amount of such Lender's participation in such proposed Facility LC.
The issuance or Modification by any LC Issuer of any Facility LC shall, in
addition to the conditions precedent set forth in Article IV (the satisfaction
of which such LC Issuer shall have no duty to ascertain), be subject to the
conditions precedent that such Facility LC shall be satisfactory to such LC
Issuer and that the Borrower shall have executed and delivered such application
agreement and/or such other instruments and agreements relating to such Facility
LC as the applicable LC Issuer shall have reasonably requested (each, a
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"Facility LC Application"). In the event of any conflict between the terms of
this Agreement and the terms of any Facility LC Application, the terms of this
Agreement shall control.
2.21.4. LC Fees. The Borrower shall pay to the Administrative Agent,
for the account of the Lenders ratably in accordance with their respective Pro
Rata Shares, (i) with respect to each standby Facility LC, a letter of credit
fee at a per annum rate equal to the Applicable Margin for Eurodollar Loans in
effect from time to time on the average daily undrawn stated amount under such
standby Facility LC, such fees to be payable in arrears on each Payment Date,
and (ii) with respect to each commercial Facility LC, a one-time letter of
credit fee in an amount equal to the product of (A) 50% of the Applicable Margin
for Eurodollar Loans in effect from time to time times (B) the initial stated
amount (or, with respect to a Modification of any such commercial Facility LC
which increases the stated amount thereof, such increase in the stated amount)
thereof, such fee to be payable on the date of such issuance or increase (each
such fee described in this sentence being an "LC Fee"). The Borrower shall also
pay to each LC Issuer for its own account (x) at the time of such LC Issuer's
issuance of each standby Facility LC, a fronting fee equal to 0.125% of the
initial stated amount (or, with respect to a Modification of any such standby
Facility LC which increases the stated amount thereof, such increase in the
stated amount) of such Facility LC issued by such LC Issuer, and (y) documentary
and processing charges in connection with the issuance or Modification of and
draws under Facility LCs in accordance with the applicable LC Issuer's standard
schedule for such charges as in effect from time to time.
2.21.5. Administration; Reimbursement by Lenders. Upon receipt from
the beneficiary of any Facility LC of any demand for payment under such Facility
LC, the applicable LC Issuer shall notify the Administrative Agent and the
Administrative Agent shall promptly notify the Borrower and each other Lender as
to the amount to be paid by such LC Issuer as a result of such demand and the
proposed payment date (the "LC Payment Date"). The responsibility of each LC
Issuer to the Borrower and each Lender shall be only to determine that the
documents (including each demand for payment) delivered under each Facility LC
issued by such LC Issuer in connection with such presentment shall be in
conformity in all material respects with such Facility LC. Each LC Issuer shall
endeavor to exercise the same care in the issuance and administration of the
Facility LCs issued by such LC Issuer as it does with respect to letters of
credit in which no participations are granted, it being understood that in the
absence of any gross negligence or willful misconduct by the applicable LC
Issuer, each Lender shall be unconditionally and irrevocably liable without
regard to the occurrence of any Unmatured Default or Default or any condition
precedent whatsoever, to reimburse such LC Issuer on demand for (i) such
Lender's Pro Rata Share of the amount of each payment made by such LC Issuer
under each Facility LC issued by such LC Issuer to the extent such amount is not
reimbursed by the Borrower pursuant to Section 2.21.6 below, plus (ii) interest
on the foregoing amount to be reimbursed by such Lender, for each day from the
date of the applicable LC Issuer's demand for such reimbursement (or, if such
demand is made after 11:00 a.m. (Chicago time) on such date, from the next
succeeding Business Day) to the date on which such Lender pays the amount to be
reimbursed by it, at a rate of interest per annum equal to the Federal Funds
Effective Rate for the first three days and, thereafter, at a rate of interest
equal to the rate applicable to Floating Rate Advances.
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2.21.6. Reimbursement by Borrower. The Borrower shall be irrevocably
and unconditionally obligated to reimburse each LC Issuer on or before the
applicable LC Payment Date for any amounts to be paid by such LC Issuer upon any
drawing under any Facility LC issued by such LC Issuer, without presentment,
demand, protest or other formalities of any kind; provided that neither the
Borrower nor any Lender shall hereby be precluded from asserting any claim for
direct (but not consequential) damages suffered by the Borrower or such Lender
to the extent, but only to the extent, caused by (i) the willful misconduct or
gross negligence of the applicable LC Issuer in determining whether a request
presented under any Facility LC issued by it complied with the terms of such
Facility LC or (ii) the applicable LC Issuer's failure to pay under any Facility
LC issued by it after the presentation to it of a request strictly complying
with the terms and conditions of such Facility LC. All such amounts paid by any
LC Issuer and remaining unpaid by the Borrower shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to (x) the rate
applicable to Floating Rate Advances for such day if such day falls on or before
the applicable LC Payment Date and (y) the sum of 2% plus the rate applicable to
Floating Rate Advances for such day if such day falls after such LC Payment
Date. Each LC Issuer will pay to each Lender ratably in accordance with its Pro
Rata Share all amounts received by it from the Borrower for application in
payment, in whole or in part, of the Reimbursement Obligation in respect of any
Facility LC issued by such LC Issuer, but only to the extent such Lender has
made payment to such LC Issuer in respect of such Facility LC pursuant to
Section 2.21.5. Subject to the terms and conditions of this Agreement (including
without limitation the submission of a Borrowing Notice in compliance with
Section 2.9 and the satisfaction of the applicable conditions precedent set
forth in Article IV), the Borrower may request an Advance hereunder for the
purpose of satisfying any Reimbursement Obligation.
2.21.7. Obligations Absolute. The Borrower's obligations under this
Section 2.21 shall be absolute and unconditional under any and all circumstances
and irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any LC Issuer, any Lender or any
beneficiary of a Facility LC. The Borrower further agrees with the LC Issuers
and the Lenders that the LC Issuers and the Lenders shall not be responsible
for, and the Borrower's Reimbursement Obligation in respect of any Facility LC
shall not be affected by, among other things, the validity or genuineness of
documents or of any endorsements thereon, even if such documents should in fact
prove to be in any or all respects invalid, fraudulent or forged, or any dispute
between or among the Borrower, any of its Affiliates, the beneficiary of any
Facility LC or any financing institution or other party to which any Facility LC
may be transferred or any claims or defenses whatsoever of the Borrower or of
any of its Affiliates against the beneficiary of any Facility LC or any such
transferee. No LC Issuer shall be liable for any error, omission, interruption
or delay in transmission, dispatch or delivery of any message or advice, however
transmitted, in connection with any Facility LC. The Borrower agrees that any
action taken or omitted by any LC Issuer or any Lender under or in connection
with any Facility LC and the related drafts and documents, if done without gross
negligence or willful misconduct, shall be binding upon the Borrower and shall
not put any LC Issuer or any Lender under any liability to the Borrower. Nothing
in this Section 2.21.7 is intended to limit the right of the Borrower to make a
claim against any LC Issuer for damages as contemplated by the proviso to the
first sentence of Section 2.21.6.
2.21.8. Actions of LC Issuers. Each LC Issuer shall be entitled to
rely, and shall be fully justified in relying, upon any Facility LC, draft,
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writing, resolution, notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order or other
document believed by it in good faith to be genuine and correct and to have been
signed, sent or made by the proper Person or Persons, and upon advice and
statements of legal counsel, independent accountants and other experts selected
by such LC Issuer. Each LC Issuer shall be fully justified in failing or
refusing to take any action under this Agreement unless it shall first have
received such advice or concurrence of the Required Lenders as it reasonably
deems appropriate or it shall first be indemnified to its reasonable
satisfaction by the Lenders against any and all liability and expense which may
be incurred by it by reason of taking or continuing to take any such action.
Notwithstanding any other provision of this Section 2.21, each LC Issuer shall
in all cases be fully justified in acting, or in refraining from acting, under
this Agreement in accordance with a request of the Required Lenders, and such
request and any action taken or failure to act pursuant thereto shall be binding
upon the Lenders and any future holders of a participation in any Facility LC.
2.21.9. Indemnification. The Borrower hereby agrees to indemnify and
hold harmless each Lender, each LC Issuer and the Administrative Agent, and
their respective directors, officers, agents and employees from and against any
and all claims and damages, losses, liabilities, costs or expenses which such
Person may incur (or which may be claimed against such Person by any other
Person whatsoever) by reason of or in connection with the issuance, execution
and delivery or transfer of or payment or failure to pay under any Facility LC
or any actual or proposed use of any Facility LC, including, without limitation,
any claims, damages, losses, liabilities, costs or expenses which any LC Issuer
may incur by reason of or in connection with (i) the failure of any Lender to
fulfill or comply with its obligations to such LC Issuer hereunder (but nothing
herein contained shall affect any rights the Borrower may have against any
defaulting Lender) or (ii) by reason of or on account of such LC Issuer issuing
any Facility LC which specifies that the term "Beneficiary" included therein
includes any successor by operation of law of the named Beneficiary, but which
Facility LC does not require that any drawing by any such successor Beneficiary
be accompanied by a copy of a legal document, satisfactory to such LC Issuer,
evidencing the appointment of such successor Beneficiary; provided that the
Borrower shall not be required to indemnify any such Person for any claims,
damages, losses, liabilities, costs or expenses to the extent, but only to the
extent, caused by (x) the willful misconduct or gross negligence of the
applicable LC Issuer in determining whether a request presented under any
Facility LC issued by such LC Issuer complied with the terms of such Facility LC
or (y) any LC Issuer's failure to pay under any Facility LC issued by such LC
Issuer after the presentation to it of a request strictly complying with the
terms and conditions of such Facility LC. Nothing in this Section 2.21.9 is
intended to limit the obligations of the Borrower under any other provision of
this Agreement.
2.21.10. Lenders' Indemnification. Each Lender shall, ratably in
accordance with its Pro Rata Share, indemnify each LC Issuer, its affiliates and
their respective directors, officers, agents and employees (to the extent not
reimbursed by the Borrower) against any cost, expense (including reasonable
counsel fees and disbursements), claim, demand, action, loss or liability
(except such as result from such indemnitees' gross negligence or willful
misconduct or the applicable LC Issuer's failure to pay under any Facility LC
issued by such LC Issuer after the presentation to it of a request strictly
complying with the terms and conditions of such Facility LC) that such
indemnitees may suffer or incur in connection with this Section 2.21 or any
action taken or omitted by such indemnitees hereunder.
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2.21.11. Facility LC Collateral Account. The Borrower agrees that it
will, as required by Section 8.1 and until the final expiration date of any
Facility LC and thereafter as long as any amount is payable to the LC Issuers or
the Lenders in respect of any Facility LC, maintain a special collateral account
pursuant to arrangements satisfactory to the Administrative Agent (the "Facility
LC Collateral Account") at the Administrative Agent's office at the address
specified pursuant to Article XIII, in the name of such Borrower but under the
sole dominion and control of the Administrative Agent, for the benefit of the
Lenders and in which such Borrower shall have no interest other than as set
forth in Section 8.1. The Borrower hereby pledges, assigns and grants to the
Administrative Agent, on behalf of and for the ratable benefit of the Lenders
and the LC Issuers, a security interest in all of the Borrower's right, title
and interest in and to all funds which may from time to time be on deposit in
the Facility LC Collateral Account to secure the prompt and complete payment and
performance of the Obligations. The Administrative Agent will invest any funds
on deposit from time to time in the Facility LC Collateral Account in
certificates of deposit of JPMCB having a maturity not exceeding 30 days.
Nothing in this Section 2.21.11 shall either obligate the Administrative Agent
to require the Borrower to deposit any funds in the Facility LC Collateral
Account or limit the right of the Administrative Agent to release any funds held
in the Facility LC Collateral Account in each case other than as required by
Section 8.1.
2.21.12. Rights as a Lender. In its capacity as a Lender, each LC
Issuer shall have the same rights and obligations as any other Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1. Yield Protection. If, on or after the date of this Agreement,
the adoption of any law or any governmental or quasi-governmental rule,
regulation, policy, guideline or directive (whether or not having the force of
law), or any change in any such law, rule, regulation, policy, guideline or
directive or in the interpretation or administration thereof by any
governmental or quasi-governmental authority, central bank or comparable agency
charged with the interpretation or administration thereof, or compliance by any
Lender or applicable Lending Installation or any LC Issuer with any request or
directive (whether or not having the force of law) of any such authority,
central bank or comparable agency:
(i) subjects any Lender or any applicable Lending Installation or
any LC Issuer to any Taxes, or changes the basis of taxation
of payments (other than with respect to Excluded Taxes) to
any Lender or any LC Issuer in respect of its Eurodollar
Loans, Facility LCs or participations therein, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar
requirement against assets of, deposits with or for the
account of, or credit extended by, any Lender or any
applicable Lending Installation or any LC Issuer (other than
reserves and assessments taken into account in determining
the interest rate applicable to Eurodollar Advances), or
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(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending
Installation or any LC Issuer of making, funding or
maintaining its Eurodollar Loans or Commitment or of issuing
or participating in Facility LCs, or reduces any amount
receivable by any Lender or any applicable Lending
Installation or any LC Issuer in connection with its
Eurodollar Loans or Commitment, Facility LCs or
participations therein, or requires any Lender or any
applicable Lending Installation or any LC Issuer to make any
payment calculated by reference to the amount of Eurodollar
Loans or Commitment, Facility LCs or participations therein
held or interest or LC Fees received by it, by an amount
deemed material by such Lender or such LC Issuer as the case
may be,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Installation or such LC Issuer, as the case may be, of making
or maintaining its Eurodollar Loans or Commitment or of issuing or participating
in Facility LCs or to reduce the return received by such Lender or applicable
Lending Installation or such LC Issuer, as the case may be, in connection with
such Eurodollar Loans or Commitment, Facility LCs or participations therein,
then, within fifteen (15) days of demand by such Lender or such LC issuer, the
Borrower shall pay such Lender or such LC Issuer such additional amount or
amounts as will compensate such Lender or such LC Issuer, as the case may be,
for such increased cost or reduction in amount received.
3.2. Changes in Capital Adequacy Regulations. If a Lender or any
LC Issuer determines the amount of capital required or expected to be maintained
by such Lender, such LC Issuer, any Lending Installation of such Lender or such
LC Issuer, or any corporation controlling such Lender or such LC Issuer, is
increased as a result of a Change, then, within fifteen (15) days of demand by
such Lender or such LC Issuer, the Borrower shall pay such Lender or such LC
Issuer the amount necessary to compensate for any shortfall in the rate of
return on the portion of such increased capital which such Lender or such LC
Issuer determines is attributable to this Agreement, its Outstanding Credit
Exposure or its Commitment to make Loans and issue or participate in Facility
LCs, as the case may be, hereunder (after taking into account such Lender's or
such LC Issuer's policies as to capital adequacy). "Change" means (i) any change
after the date of this Agreement in the Risk-Based Capital Guidelines or (ii)
any adoption of, change in, or change in the interpretation or administration of
any other law, governmental or quasi-governmental rule, regulation, policy,
guideline, interpretation, or directive (whether or not having the force of law)
after the date of this Agreement which affects the amount of capital required or
expected to be maintained by any Lender or any LC Issuer or any Lending
Installation or any corporation controlling any Lender or any LC Issuer.
"Risk-Based Capital Guidelines" means (i) the risk-based capital guidelines in
effect in the United States on the date of this Agreement, including transition
rules, and (ii) the corresponding capital regulations promulgated by regulatory
authorities outside the United States implementing the July 1988 report of the
Basle Committee on Banking Regulation and Supervisory Practices Entitled
"International Convergence of Capital Measurements and Capital Standards,"
including transition rules, and any amendments to such regulations adopted prior
to the date of this Agreement.
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3.3. Availability of Types of Advances. If (x) any Lender
determines that maintenance of its Eurodollar Loans at a suitable Lending
Installation would violate any applicable law, rule, regulation or directive,
whether or not having the force of law, or (y) the Required Lenders determine
that (i) deposits of a type, currency and maturity appropriate to match fund
Eurodollar Advances are not available or (ii) the interest rate applicable to
Eurodollar Advances does not accurately reflect the cost of making or
maintaining Eurodollar Advances, then the Administrative Agent shall suspend the
availability of Eurodollar Advances and require any affected Eurodollar Advances
to be repaid or converted to Floating Rate Advances, subject to the payment of
any funding indemnification amounts required by Section 3.4.
3.4. Funding Indemnification. If any payment of a Eurodollar
Advance occurs on a date which is not the last day of the applicable Interest
Period, whether because of acceleration, prepayment or otherwise, or a
Eurodollar Advance is not made on the date specified by the Borrower for any
reason other than default by the Lenders, or a Eurodollar Advance is not
prepaid, converted or continued on the date specified by the Borrower for any
reason, the Borrower will indemnify each Lender for any loss or cost incurred by
it resulting therefrom, including, without limitation, any loss or cost in
liquidating or employing deposits acquired to fund or maintain such Eurodollar
Advance.
3.5. Taxes.
(i) All payments by the Borrower to or for the account of any
Lender, LC Issuer or Agent hereunder or under any Note or Facility LC
Application shall be made free and clear of and without deduction for any and
all Taxes. If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder to any Lender, LC Issuer or Agent, (a)
the sum payable shall be increased as necessary so that after making all
required deductions (including deductions applicable to additional sums payable
under this Section 3.5) such Lender, LC Issuer or Agent (as the case may be)
receives an amount equal to the sum it would have received had no such
deductions been made, (b) the Borrower shall make such deductions, (c) the
Borrower shall pay the full amount deducted to the relevant authority in
accordance with applicable law and (d) the Borrower shall furnish to the
Administrative Agent the original copy of a receipt evidencing payment thereof
within thirty (30) days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any present or
future stamp or documentary taxes and any other excise or property taxes,
charges or similar levies which arise from any payment made hereunder or under
any Note or Facility LC Application or from the execution or delivery of, or
otherwise with respect to, this Agreement or any Note or Facility LC Application
("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the Agents, the LC
Issuers and each Lender for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed on amounts payable under
this Section 3.5) paid by the Agents, the LC Issuers or such Lender as a result
of its Commitment, any Loans made by it hereunder, or otherwise in connection
with its participation in this Agreement and any liability (including penalties,
interest and expenses) arising therefrom or with respect thereto. Payments due
under this indemnification shall be made within thirty (30) days of the date the
Agents, the LC Issuers or such Lender makes demand therefor pursuant to Section
3.6.
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(iv) Each Lender that is not organized under the laws of the
United States of America or a state thereof (each a "Non-U.S. Lender") agrees
that it will, not more than ten (10) Business Days after the date on which it
becomes a party to this Agreement, (i) deliver to the Administrative Agent two
(2) duly completed copies of United States Internal Revenue Service Form W-8BEN
or W-8ECI, certifying in either case that such Lender is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes, and (ii) deliver to the Administrative Agent a
United States Internal Revenue Form W-8 or W-9, as the case may be, and certify
that it is entitled to an exemption from United States backup withholding tax.
Each Non-U.S. Lender further undertakes to deliver to each of the Borrower and
the Administrative Agent (x) renewals or additional copies of such form (or any
successor form) on or before the date that such form expires or becomes
obsolete, and (y) after the occurrence of any event requiring a change in the
most recent forms so delivered by it, such additional forms or amendments
thereto as may be reasonably requested by the Borrower or the Administrative
Agent. All forms or amendments described in the preceding sentence shall certify
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, unless an
event (including without limitation any change in treaty, law or regulation) has
occurred prior to the date on which any such delivery would otherwise be
required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed to
provide the Borrower with an appropriate form pursuant to clause (iv), above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps as such Non-U.S. Lender shall reasonably request
to assist such Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or reduction
of withholding tax with respect to payments under this Agreement or any Note
pursuant to the law of any relevant jurisdiction or any treaty shall deliver to
the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Administrative Agent of a change in
35
circumstances which rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the Administrative Agent fully
for all amounts paid, directly or indirectly, by the Administrative Agent as
tax, withholding therefor, or otherwise, including penalties and interest, and
including taxes imposed by any jurisdiction on amounts payable to the
Administrative Agent under this subsection, together with all costs and expenses
related thereto (including reasonable attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may be employees of the
Administrative Agent); provided that no Lender shall be liable for any of the
foregoing to the extent any of the foregoing is found in a final, non-appealable
judgment in a court of competent jurisdiction to have resulted from the gross
negligence or willful misconduct of the Administrative Agent. The obligations
of the Lenders under this Section 3.5(vii) shall survive the payment of the
Obligations and termination of this Agreement.
3.6. Lender Statements; Survival of Indemnity. To the extent
reasonably possible, each Lender shall designate an alternate Lending
Installation with respect to its Eurodollar Loans to reduce any liability of the
Borrower to such Lender under Sections 3.1, 3.2 and 3.5 or to avoid the
unavailability of Eurodollar Advances under Section 3.3, so long as such
designation is not, in the good faith judgment of such Lender, disadvantageous
to such Lender. Each Lender shall deliver a written statement of such Lender to
the Borrower (with a copy to the Administrative Agent) as to the amount due, if
any, under Section 3.1, 3.2, 3.4 or 3.5. Such written statement shall set forth
in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the absence
of manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type,
currency and maturity corresponding to the deposit used as a reference in
determining the Eurodollar Rate applicable to such Loan, whether in fact that is
the case or not. Unless otherwise provided herein, the amount specified in the
written statement of any Lender shall be payable on demand after receipt by the
Borrower of such written statement. The obligations of the Borrower under
Section 3.1, 3.2, 3.4 or 3.5 shall survive payment of the Obligations and
termination of this Agreement. If any Lender fails to notify the Borrower of any
event or circumstance that will entitle such Lender to compensation pursuant to
Sections 3.1, 3.2 or 3.5 within 90 days after such Lender obtains knowledge of
such event or circumstance, then such Lender shall not be entitled to receive
such compensation from the Borrower for any amount arising prior to the date
that is 90 days before the date on which such Lender notifies the Borrower of
such event or circumstance.
ARTICLE IV
CONDITIONS PRECEDENT
4.1. Initial Credit Extension. The Lenders shall not be required
to make the initial Credit Extension hereunder unless (a) the representations
and warranties contained in Article V are true and correct as of such date and
(b) the Borrower has furnished to the Agents with sufficient copies for the
Lenders:
(i) Copies of the articles or certificates of incorporation (or
similar constitutive documents) of the Borrower and each
Guarantor (each a "Loan Party"), together with all amendments
thereto, and a certificate of good standing, each certified
by the appropriate governmental officer in its jurisdiction
of organization.
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(ii) Copies, certified by the Secretary or Assistant Secretary of
each Loan Party, of such Loan Party's by-laws (or similar
constitutive documents) and of its Board of Directors'
resolutions and of resolutions or actions of any other body
authorizing the execution of the Loan Documents to which it
is a party.
(iii) An incumbency certificate, executed by the Secretary or
Assistant Secretary of each Loan Party, which shall identify
by name and title and bear the signatures of the Authorized
Officers and any other officers of such Loan Party authorized
to sign the Loan Documents to which it is a party and, in the
case of the Borrower, to request Credit Extensions hereunder,
upon which certificate the Agents, the LC Issuers and the
Lenders shall be entitled to rely until informed of any
change in writing by the applicable Loan Party.
(iv) An opening compliance certificate in substantially the form
of Exhibit B, signed by the chief financial officer, chief
accounting officer or treasurer of the Borrower, showing the
calculations necessary to determine compliance with this
Agreement as of the Borrower's fiscal quarter ended September
26, 2004 and stating that on the initial Credit Extension
Date no Default or Unmatured Default has occurred and is
continuing.
(v) (A) A written opinion of the Borrower's and each Guarantor's
counsel and (B) a written opinion of the Administrative
Agent's counsel with respect to the enforceability of this
Agreement, the Notes and the Guaranty, in each case in form
and substance satisfactory to the Agents and addressed to the
Lenders in substantially the form of Exhibit A-1 and Exhibit
A-2 respectively.
(vi) Any Notes requested by a Lender pursuant to Section 2.14
payable to the order of each such requesting Lender.
(vii) If the initial Credit Extension shall be the issuance of a
Facility LC, a properly completed Facility LC Application.
(viii) Written money transfer instructions, in substantially the
form of Exhibit D, addressed to the Administrative Agent and
signed by an Authorized Officer, together with such other
related money transfer authorizations as the Administrative
Agent may have reasonably requested.
(ix) Evidence satisfactory to the Agents that the Existing Credit
Agreement shall have been or shall simultaneously on the
Closing Date be terminated (except for those provisions that
expressly survive the termination thereof) and all loans
outstanding and other amounts owed to the lenders or agents
thereunder shall have been or shall simultaneously with the
initial Advance hereunder be paid in full.
(x) Such other documents as any Lender or its counsel may have
reasonably requested, including, without limitation, each
document identified on the List of Closing Documents attached
hereto as Exhibit F.
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4.2. Each Credit Extension. The Lenders shall not (except as
otherwise set forth in Section 2.2.4 with respect to Revolving Loans for the
purpose of repaying Swing Line Loans) be required to make any Credit Extension
unless on the applicable Credit Extension Date:
(i) There exists no Default or Unmatured Default.
(ii) The representations and warranties contained in Article V are
true and correct as of such Credit Extension Date except to
the extent any such representation or warranty is stated to
relate solely to an earlier date, in which case such
representation or warranty shall have been true and correct
on and as of such earlier date.
(iii) All legal matters incident to the making of such Credit
Extension shall be satisfactory to the Lenders and their
counsel.
Each Borrowing Notice or request for issuance of a Facility LC, or
Swing Line Borrowing Notice, as the case may be, with respect to each Credit
Extension shall constitute a representation and warranty by the Borrower that
the conditions contained in Section 4.2(i) and (ii) have been satisfied.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows to each Lender and the
Agents as of the Closing Date, on the date of the initial Credit Extension
hereunder (if different from the Closing Date) and thereafter on each date as
required by Section 4.2:
5.1. Existence and Standing. The Borrower and each of its
Subsidiaries (other than Rio Bravo Restaurant, Inc. which is to be dissolved
within 180 days after the Closing Date) is a corporation, partnership or limited
liability company duly and properly incorporated or organized, as the case may
be, validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except to the extent that the
failure to have such authority could not reasonably be expected to have a
Material Adverse Effect.
5.2. Authorization and Validity. The Borrower and each of its
Subsidiaries (to the extent applicable) has the power and authority and legal
right to execute and deliver the Loan Documents to which it is a party and to
perform its obligations thereunder. The execution and delivery by the Borrower
and any such Subsidiary of the Loan Documents to which it is a party and the
performance of its obligations thereunder have been duly authorized by proper
corporate proceedings, and the Loan Documents to which such entity is a party
constitute legal, valid and binding obligations of such entity enforceable
against such entity in accordance with their terms, except as enforceability may
be limited by bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally.
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5.3. No Conflict; Government Consent. Neither the execution and
delivery by the Borrower or any of its Subsidiaries of the Loan Documents, nor
the consummation of the transactions therein contemplated, nor compliance with
the provisions thereof will violate (i) any law, rule, regulation, order, writ,
judgment, injunction, decree or award binding on the Borrower or any of its
Subsidiaries or (ii) the Borrower's or any Subsidiary's articles or certificate
of incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating agreement or other management
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which the Borrower or any of its Subsidiaries is a
party or is subject, or by which it, or its Property, is bound, or conflict
with, or constitute a default under, or result in, or require, the creation or
imposition of any Lien in, of or on the Property of the Borrower or a Subsidiary
pursuant to the terms of, any such indenture, instrument or agreement. No order,
consent, adjudication, approval, license, authorization, or validation of, or
filing, recording or registration with, or exemption by, or other action in
respect of any governmental or public body or authority, or any subdivision
thereof, which has not been obtained by the Borrower or any of its Subsidiaries,
is required to be obtained by the Borrower or any of its Subsidiaries in
connection with the execution and delivery of the Loan Documents, the Credit
Extensions under this Agreement, the payment and performance by the Borrower of
the Obligations or the legality, validity, binding effect or enforceability of
any of the Loan Documents.
5.4. Financial Statements. The December 28, 2003 and September 26,
2004 consolidated financial statements of the Borrower and its Subsidiaries
heretofore delivered to the Arranger and the Lenders were prepared in accordance
with generally accepted accounting principles in effect on the date such
statements were prepared and fairly present the consolidated financial condition
and operations of the Borrower and its Subsidiaries at such dates and the
consolidated results of their operations and cash flows for the fiscal year and
nine-month period, respectively, then ended, subject, in the case of the
September 26, 2004 financial statements, to normal year-end adjustments and the
absence of notes.
5.5. Material Adverse Change. Since December 28, 2003 there has
been no change in the business, Property, condition (financial or otherwise),
operations, performance or prospects of the Borrower, or the Borrower and its
Subsidiaries taken as a whole, which could reasonably be expected to have a
Material Adverse Effect.
5.6. Taxes. The Borrower and its Subsidiaries have filed all
United States federal tax returns and all other tax returns which are required
to be filed and have paid all taxes due pursuant to said returns or pursuant to
any assessment received by the Borrower or any of its Subsidiaries, except such
taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided in accordance with Agreement Accounting Principles.
Each of the Borrower's and its Subsidiaries' federal income tax years through
December 26, 1999 have closed and neither the Borrower nor any of its
Subsidiaries has executed, or has been requested to execute, extensions of
statutes of limitation on assessment for any completed fiscal year of the
Borrower or any of its Subsidiaries. No tax liens have been filed and no claims
are being asserted with respect to any such taxes. The charges, accruals and
reserves on the books of the Borrower and its Subsidiaries in respect of any
taxes or other governmental charges are reasonably adequate.
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5.7. Litigation and Contingent Obligations. There is no
litigation, arbitration, governmental investigation, proceeding or inquiry
pending or, to the knowledge of any of their Authorized Officers or general
counsel, threatened against or affecting the Borrower or any of its Subsidiaries
which could reasonably be expected to have a Material Adverse Effect or which
seeks to prevent, enjoin or delay the making of any Credit Extensions. Other
than any liability incident to any litigation, arbitration or proceeding which
could not reasonably be expected to have a Material Adverse Effect, neither the
Borrower nor any of its Subsidiaries has any contingent obligations not provided
for or disclosed in the financial statements referred to in Section 5.4.
5.8. Subsidiaries. Schedule 5.8 (as supplemented from time to time
by the Borrower promptly after the formation, acquisition or dissolution of any
Subsidiary as permitted under this Agreement) contains an accurate list of all
Subsidiaries of the Borrower as of the date of this Agreement, setting forth
their respective jurisdictions of organization and the percentage of their
respective capital stock or other ownership interests owned by the Borrower or
other Subsidiaries. All of the issued and outstanding shares of capital stock or
other ownership interests of such Subsidiaries have been (to the extent such
concepts are relevant with respect to such ownership interests) duly authorized
and issued and are fully paid and non-assessable.
5.9. Accuracy of Information. No information, schedule, exhibit or
report furnished by the Borrower or any of its Subsidiaries to the Arranger, any
Agent or Lender (including, without limitation, the Confidential Information
Memorandum dated October 2004) in connection with the negotiation of, or
compliance with, the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the statements
contained therein, in the light of the circumstances under which they were made,
not misleading; provided that, with respect to projected financial information,
the Borrower represents only that such information was prepared in good faith
based upon assumptions believed to be reasonable at such time.
5.10. Regulation U. Neither the Borrower nor any of its
Subsidiaries is engaged principally, or as one of its important activities, in
the business of extending credit for the purpose, whether immediate, incidental
or ultimate of buying or carrying margin stock (within the meaning of
Regulations U or X); and after applying the proceeds of each Advance, margin
stock (as defined in Regulation U) constitutes less than twenty-five percent
(25%) of the value of those assets of the Borrower and its Subsidiaries which
are subject to any limitation on sale or pledge, or any other restriction
hereunder.
5.11. Material Agreements. Neither the Borrower nor any Subsidiary
is a party to any agreement or instrument or subject to any charter or other
corporate restriction which could reasonably be expected to have a Material
Adverse Effect. Neither the Borrower nor any Subsidiary is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in (i) any agreement to which it is a party, which default
could reasonably be expected to have a Material Adverse Effect or (ii) any
agreement or instrument evidencing or governing Indebtedness.
5.12. Compliance With Laws. The Borrower and its Subsidiaries have
complied in all material respects with all applicable statutes, rules,
40
regulations, orders and restrictions of any domestic or foreign government or
any instrumentality or agency thereof having jurisdiction over the conduct of
their respective businesses or the ownership of their respective Property.
5.13. Ownership of Properties. On the date of this Agreement, the
Borrower and its Subsidiaries will have good title, free of all Liens other than
those permitted by Section 6.16, to all of the Property and assets reflected in
the Borrower's most recent consolidated financial statements provided to the
Arranger and the Lenders as owned by the Borrower and its Subsidiaries, other
than Property and assets sold or otherwise disposed of in the ordinary course of
business.
5.14. ERISA; Foreign Pension Matters. The sum of (a) the Unfunded
Liabilities of all Plans and (b) the present value of the aggregate unfunded
liabilities to provide the accrued benefits under all Foreign Pension Plans do
not in the aggregate exceed an amount equal to the sum of (i) five percent (5%)
of the value (as of any date of determination) of all Plan assets allocable to
Plan benefits guaranteed by ERISA and (ii) five percent (5%) of the fair market
value of the assets held in trust or other funding vehicles for accrued benefits
under all Foreign Pension Plans. Each Plan and each Foreign Pension Plan
complies in all material respects with all applicable requirements of law and
regulations, no Reportable Event has occurred with respect to any Plan, neither
the Borrower nor any other member of the Controlled Group has withdrawn from any
Multiemployer Plan or initiated steps to do so, and no steps have been taken to
terminate any Plan.
5.15. Plan Assets; Prohibited Transactions. The Borrower is not an
entity deemed to hold "plan assets" within the meaning of 29 C.F.R. ss.
2510.3-101 of an employee benefit plan (as defined in Section 3(3) of ERISA)
which is subject to Title I of ERISA or any plan (within the meaning of Section
4975 of the Code), and neither the execution of this Agreement nor the making of
Loans hereunder gives rise to a prohibited transaction within the meaning of
Section 406 of ERISA or Section 4975 of the Code.
5.16. Environmental Matters.
(a) In the ordinary course of its business, the Authorized
Officers and general counsel of the Borrower consider the effect of
Environmental Laws on the business of the Borrower and its Subsidiaries, in the
course of which they identify and evaluate potential risks and liabilities
accruing to the Borrower and its Subsidiaries due to Environmental Laws. On the
basis of this consideration, the Borrower has concluded that Environmental Laws
cannot reasonably be expected to have a Material Adverse Effect. Except as set
forth on Schedule 5.16, neither the Borrower nor any Subsidiary has received any
notice to the effect that its operations are not in compliance with any of the
requirements of applicable Environmental Laws or are the subject of any federal
or state investigation evaluating whether any remedial action is needed to
respond to a release of any toxic or hazardous waste or substance into the
environment, which non-compliance or remedial action could reasonably be
expected to have a Material Adverse Effect.
(b) The Borrower and each of its Subsidiaries have obtained all
necessary governmental permits, licenses and approvals which are material to the
operations conducted on their respective properties, including without
limitation, all required permits, licenses and approvals for (i) the emission of
41
air pollutants or contaminates, (ii) the treatment or pretreatment and discharge
of waste water or storm water, (iii) the treatment, storage, disposal or
generation of hazardous wastes, (iv) the withdrawal and usage of ground water or
surface water, and (v) the disposal of solid wastes, except where a failure to
obtain such permits, licenses and approvals would not result in a Material
Adverse Effect.
5.17. Investment Company Act. Neither the Borrower nor any
Subsidiary is an "investment company" or a company "controlled" by an
"investment company", within the meaning of the Investment Company Act of 1940,
as amended.
5.18. Public Utility Holding Company Act. Neither the Borrower nor
any Subsidiary is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
5.19. Insurance. The Property of the Borrower and its Subsidiaries
is insured with reputable insurance companies not Affiliates of the Borrower, in
such amounts, with such deductibles and covering such risks as are commercially
reasonable.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing:
6.1. Financial Reporting. The Borrower will maintain, for itself
and each Subsidiary, a system of accounting established and administered in
accordance with generally accepted accounting principles, and furnish to the
Lenders:
(i) Within ninety (90) days after the close of each of its fiscal
years, an unqualified audit report certified by independent
certified public accountants acceptable to the Lenders,
prepared in accordance with Agreement Accounting Principles
on a consolidated basis for itself and its Subsidiaries,
including a balance sheet as of the end of such period,
related statements of income, shareholders' equity and cash
flows, accompanied by a certificate of said accountants that,
in the course of their examination necessary for their
certification of the foregoing, they have obtained no
knowledge of any Default or Unmatured Default, or if, in the
opinion of such accountants, any Default or Unmatured Default
shall exist, stating the nature and status thereof.
(ii) Within forty-five (45) days after the close of the first
three (3) quarterly periods of each of its fiscal years, for
itself and its Subsidiaries, a consolidated unaudited balance
sheet as at the close of each such period and consolidated
statements of income, shareholders' equity and cash flows for
the period from the beginning of such fiscal year to the end
of such quarter, all certified by its chief financial
officer, chief accounting officer or treasurer.
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(iii) Together with the financial statements required under
Sections 6.1(i) and (ii), a compliance certificate in
substantially the form of Exhibit B signed by its chief
financial officer, chief accounting officer or treasurer
showing the calculations necessary to determine compliance
with this Agreement and stating that no Default or Unmatured
Default exists, or if any Default or Unmatured Default
exists, stating the nature and status thereof.
(iv) As soon as available, but in any event within sixty (60) days
after the beginning of each fiscal year of the Borrower, a
copy of the projected consolidated and consolidating balance
sheet, income statement and cash flow statement of the
Borrower for such fiscal year.
(v) As soon as practicable after receipt thereof by the Borrower
but in any event within 270 days after the close of each plan
year for each Plan, a statement of any Unfunded Liabilities
of such Plan, certified as correct by an actuary enrolled
under ERISA.
(vi) As soon as possible and in any event within ten (10) days
after the Borrower knows that any Reportable Event has
occurred with respect to any Plan, or any material unfunded
liability has arisen with respect to any Foreign Pension
Plan, a statement, signed by the chief financial officer or
treasurer of the Borrower, describing said Reportable Event
or material unfunded liability and the action which the
Borrower proposes to take with respect thereto.
(vii) As soon as possible and in any event within ten (10) days
after receipt by the Borrower, a copy of (a) any notice or
claim to the effect that the Borrower or any of its
Subsidiaries is or may be liable to any Person as a result of
the release by the Borrower, any of its Subsidiaries, or any
other Person of any toxic or hazardous waste or substance
into the environment, and (b) any notice alleging any
violation of any federal, state or local environmental,
health or safety law or regulation by the Borrower or any of
its Subsidiaries, which, in either case, could reasonably be
expected to have a Material Adverse Effect.
(viii) Promptly upon the furnishing thereof to the shareholders of
the Borrower, copies of all financial statements, reports and
proxy statements so furnished.
(ix) Promptly upon the filing thereof, copies of all registration
statements or other regular reports not otherwise provided
pursuant to this Section 6.1 which the Borrower or any of its
Subsidiaries files with the Securities and Exchange
Commission.
(x) Such other information (including non-financial information)
as any Agent or Lender may from time to time reasonably
request.
6.2. Use of Proceeds. The Borrower will, and will cause each
Subsidiary to, use the proceeds of the Credit Extensions for general corporate
purposes, including for working capital, refinancing the Indebtedness under the
Existing Credit Agreement, dividends, stock repurchases and Permitted
43
Acquisitions. The Borrower shall use the proceeds of Credit Extensions in
compliance with all applicable legal and regulatory requirements and any such
use shall not result in a violation of any such requirements, including, without
limitation, Regulations T, U and X, the Securities Act of 1933 and the
Securities Exchange Act of 1934 and the regulations promulgated thereunder.
6.3. Notice of Default. The Borrower will, and will cause each
Subsidiary to, give prompt notice in writing to the Lenders of the occurrence of
any Default or Unmatured Default and of any other development, financial or
otherwise, which could reasonably be expected to have a Material Adverse Effect.
6.4. Conduct of Business. The Borrower will, and will cause each
Subsidiary to, carry on and conduct its business in substantially the same
manner and only in lines of business similar or related to lines of business
conducted by the Borrower or its Subsidiaries as of the Closing Date, and,
except as otherwise permitted by Section 6.13, do all things necessary to remain
duly incorporated or organized, validly existing and (to the extent such concept
applies to such entity) in good standing as a corporation, partnership or
limited liability company in its jurisdiction of incorporation or organization,
as the case may be, and maintain all requisite authority to conduct its business
in each jurisdiction in which its business is conducted; provided that any
Subsidiary may liquidate or dissolve if (i) the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and (ii) such liquidation or dissolution is not materially
disadvantageous to the Lenders. 6.5. Taxes. The Borrower will, and will cause
each Subsidiary to, file on a timely basis complete and correct United States
federal and applicable foreign, state and local tax returns required by law and
pay when due all taxes, assessments and governmental charges and levies upon it
or its income, profits or Property, except those which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves have been set aside in accordance with Agreement Accounting Principles.
6.6. Insurance. The Borrower will, and will cause each Subsidiary
to, maintain with reputable insurance companies insurance on their Property in
such amounts and covering such risks as is commercially reasonable, and the
Borrower will furnish to any Lender upon request full information as to the
insurance carried.
6.7. Compliance with Laws. The Borrower will, and will cause each
Subsidiary to, comply in all material respects with all laws, rules,
regulations, orders, writs, judgments, injunctions, decrees or awards to which
it may be subject including, without limitation, all Environmental Laws.
6.8. Maintenance of Properties. The Borrower will, and will cause
each Subsidiary to, do all things necessary in its commercially reasonable
judgement to maintain, preserve, protect and keep its Property in good repair,
working order and condition, and make all necessary and proper repairs, renewals
and replacements so that its business carried on in connection therewith may be
properly conducted at all times.
6.9. Inspection; Keeping of Books and Records. The Borrower will,
and will cause each Subsidiary to, permit the Agents and the Lenders, by their
44
respective representatives and agents, to inspect any of the Property, books and
financial records of the Borrower and each Subsidiary, to examine and make
copies of the books of accounts and other financial records of the Borrower and
each Subsidiary, and to discuss the affairs, finances and accounts of the
Borrower and each Subsidiary with, and to be advised as to the same by, their
respective officers at such reasonable times and intervals as the Administrative
Agent or any Lender may designate. The Borrower shall keep and maintain, and
cause each of its Subsidiaries to keep and maintain, in all material respects,
proper books of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in relation
to their respective businesses and activities. If a Default has occurred and is
continuing, the Borrower, upon the Administrative Agent's request, shall turn
over copies of any such records to the Administrative Agent or its
representatives.
6.10. Addition of Guarantors. As promptly as possible but in any
event within ninety (90) days (or such later date as is agreed to by the
Administrative Agent) after any Domestic Subsidiary becomes a Subsidiary of the
Borrower, the Borrower shall cause each such Domestic Subsidiary to deliver to
the Administrative Agent a duly executed supplement to the Guaranty pursuant to
which such Subsidiary agrees to be bound by the terms and provisions of the
Guaranty.
6.11. Dividends and Distributions. The Borrower will not, nor will
it permit any of its Subsidiaries to, declare or pay any dividends on its
capital stock (other than dividends payable in its own capital stock), make any
distributions to any of its equity owners, redeem, repurchase or otherwise
acquire or retire any of its capital stock or other equity interests at any time
outstanding, except that (i) any Subsidiary may, at any time, declare and pay
dividends or make distributions to the Borrower or to a Wholly-Owned Subsidiary
of the Borrower and (ii) the Borrower may declare and pay dividends on its
capital stock and may repurchase its capital stock, provided, in each case, that
no Default or Unmatured Default shall exist before or after giving effect to
such dividends or repurchase or be created as a result thereof.
6.12. Intentionally Omitted.
6.13. Merger. The Borrower will not, nor will it permit any
Subsidiary to, merge or consolidate with or into any other Person, except that,
if after giving effect to any such merger or consolidation no Default or
Unmatured Default would exist, a Subsidiary may merge or consolidate (i) into
the Borrower or a Wholly-Owned Subsidiary such that the Borrower or such
Wholly-Owned Subsidiary is the surviving entity, provided that in any merger or
consolidation involving a Domestic Subsidiary and a Foreign Subsidiary, the
Domestic Subsidiary shall be the surviving entity, or (ii) in connection with a
Permitted Acquisition.
6.14. Sale of Assets. The Borrower will not, nor will it permit any
Subsidiary to, lease, sell, transfer or otherwise dispose of its Property to any
other Person, except:
(i) Sales of inventory and obsolete or excess assets in the
ordinary course of business.
(ii) Sales, leases and transfers of Property (a) from the Borrower
to any Guarantor, and (b) from any Subsidiary of the Borrower
to the Borrower or any Guarantor.
45
(iii) Other sales, assignments, transfers, leases, conveyances or
other dispositions of its Property, provided that (a) such
disposition is for consideration consisting of cash or a
combination of cash and notes, the principal amount of which
notes shall not exceed the greater of $25,000,000 and 25% of
the total consideration, (b) such disposition is for not less
than fair market value (as determined in good faith by the
Borrower's board of directors if the total consideration for
such disposition is equal to or greater than $20,000,000),
(c) after giving effect to such disposition, no Default or
Unmatured Default shall exist, and (d) such Property,
together with all other Property of the Borrower and its
Subsidiaries previously leased, sold or disposed of (other
than inventory and obsolete or excess assets in the ordinary
course of business) calculated at book value (i) during the
immediately preceding twelve-month period, represents the
disposition of not greater than 10% of the Borrower's
Consolidated Total Assets at the end of the fiscal year
immediately preceding that in which such transaction is
proposed to be entered into, and (ii) during the period from
the Closing Date to the date of such proposed transaction,
represents the disposition of not greater than 30% of the
Borrower's Consolidated Total Assets at the end of the fiscal
year immediately preceding that in which such transaction is
proposed to be entered into.
6.15. Investments and Acquisitions. The Borrower will not, nor will
it permit any Subsidiary to, make or suffer to exist any Investments (including,
without limitation, loans and advances to, and other Investments in,
Subsidiaries), or commitments therefor, or to create any Subsidiary or to become
or remain a partner in any partnership or joint venture, or to make any
Acquisition, except:
(i) Cash Equivalent Investments.
(ii) Existing Investments in Subsidiaries and other Investments in
existence on the date hereof and described in Schedule 6.15.
(iii) Investments by any Subsidiary in the Borrower or any
Guarantor, and Investments by any Subsidiary that is not a
Guarantor in any other Subsidiary that is not a Guarantor.
(iv) Investments of insurance premium revenues by Neighborhood
Insurance, Inc.
(v) Investments resulting from the transfers permitted by Section
6.14(iii).
(vi) Investments resulting from Financial Contracts entered into
in the ordinary course of business and which do not violate
the terms of Section 6.18.
(vii) Acquisitions meeting the following requirements or otherwise
approved by the Required Lenders (each such Acquisition
constituting a "Permitted Acquisition"):
(a) as of the date of the consummation of such Acquisition,
no Default or Unmatured Default shall have occurred and be
46
continuing or would result from such Acquisition, and the
representation and warranty contained in Section 5.10 shall
be true both before and after giving effect to such
Acquisition;
(b) such Acquisition is consummated on a non-hostile basis
pursuant to a negotiated acquisition agreement approved by
the board of directors or other applicable governing body of
the seller or entity to be acquired, and no material
challenge to such Acquisition (excluding the exercise of
appraisal rights) shall be pending or threatened by any
shareholder or director of the seller or entity to be
acquired;
(c) the business to be acquired in such Acquisition is
similar or related to one or more of the lines of business in
which the Borrower and its Subsidiaries are engaged on the
Closing Date;
(d) as of the date of the consummation of such Acquisition,
all material approvals required in connection therewith shall
have been obtained;
(e) during any fiscal year, the aggregate Purchase Price paid
in connection with Acquisitions shall not exceed
$200,000,000; and
(f) in the case of any Permitted Acquisition having a
Purchase Price (including the value of treasury stock of the
Borrower repurchased prior to the Closing Date) greater than
$50,000,000, not less than ten (10) days prior to the
consummation of such Permitted Acquisition, the Borrower
shall have delivered to the Administrative Agent, a pro forma
compliance certificate in the form of Exhibit B hereto, which
shall reflect that, on a pro forma basis, the Borrower would
have been in compliance with the financial covenants set
forth in Section 6.21 for the four fiscal quarter period
reflected in the compliance certificate most recently
delivered to the Administrative Agent pursuant to Section
6.1(iii) prior to the consummation of such Permitted
Acquisition (giving effect to such Permitted Acquisition and
all Credit Extensions funded in connection therewith as if
made on the first day of such period).
(viii) Investments, either in the form of loans to franchisees or
reimbursement obligations from franchisees, arising from
obligations under (a) the Master Agreement and Limited
Guaranty dated as of June 1, 2004, executed by the Borrower
in favor of Citicorp Leasing, Inc. or (b) other similar
programs, to the extent the aggregate amount of all such
investments does not exceed $25,000,000 at any time
outstanding.
(ix) Investments by the Borrower or any Guarantor in any
Subsidiary that is not a Guarantor, Investments in joint
ventures, Investments in franchisees of the Borrower or any
Subsidiary and other Investments in any other Persons, loans
or advances made by the Borrower or any of its Subsidiaries
to employees and officers of the Borrower or of any of the
Borrower's Subsidiaries or to any other Persons, provided
that all of the foregoing shall not exceed the amount of
$25,000,000 in the aggregate at any one time outstanding.
47
6.16. Liens. The Borrower will not, nor will it permit any
Subsidiary to, create, incur, or suffer to exist any Lien in, of or on the
Property of the Borrower or any of its Subsidiaries, except:
(i) Liens for taxes, assessments or governmental charges or
levies on its Property if the same shall not at the time be
delinquent or thereafter can be paid without penalty, or are
being contested in good faith and by appropriate proceedings
and for which adequate reserves in accordance with Agreement
Accounting Principles shall have been set aside on its books.
(ii) Liens imposed by law (and exactly similar Liens imposed by
contract in the same jurisdiction where any such Lien is
imposed by law), such as carriers', warehousemen's,
landlords' and mechanics' liens and other similar liens
arising in the ordinary course of business which secure
payment of obligations not more than sixty (60) days past due
or which are being contested in good faith by appropriate
proceedings and for which adequate reserves in accordance
with Agreement Accounting Principles shall have been set
aside on its books.
(iii) Liens arising out of pledges or deposits under workers'
compensation laws, unemployment insurance, old age pensions,
or other social security or retirement benefits, or similar
legislation.
(iv) Utility easements, building restrictions and such other
encumbrances or charges against real property as are of a
nature generally existing with respect to properties of a
similar character and which do not in any material way affect
the marketability of the same or interfere with the use
thereof in the business of the Borrower or its Subsidiaries.
(v) Liens arising out of deposits to secure the performance of
bids, trade contracts (other than for borrowed money), surety
and appeal bonds, performance bonds and other similar
obligations incurred in the ordinary course of business.
(vi) Liens existing on the date hereof and described on Schedule
6.16 and renewals and continuations of such Liens so long as
the Liens so renewed or continued are limited to the Property
which was subject to the Lien so renewed or continued and do
not exceed the principal amount of obligations so secured at
the time of such renewal or extension.
(vii) Liens, if any, securing the Loans and other Obligations
hereunder.
(viii) Other Liens not reflected in clauses (i)-(vii) above securing
Indebtedness or other obligations in the aggregate at any
time not in excess of an amount, at any time the same is to
be determined, equal to twenty percent (20%) of Consolidated
Net Worth as determined at the end of the then most recently
completed fiscal quarter of the Borrower.
6.17. Transactions with Affiliates. The Borrower will not, and will
not permit any Subsidiary to, enter into any transaction (including, without
48
limitation, the purchase or sale of any Property or service) with, or make any
payment or transfer to, any Affiliate except (i) transactions with the Borrower
or any Guarantor, (ii) transactions in the ordinary course of business and
pursuant to the reasonable requirements of the Borrower's or such Subsidiary's
business and upon fair and reasonable terms no less favorable to the Borrower or
such Subsidiary than the Borrower or such Subsidiary would obtain in a
comparable arm's-length transaction or (iii) transactions disclosed in the
Borrower's Form 10K for fiscal year 2003 and the proxy statement filed with the
Securities and Exchange Commission for the annual meeting of the Borrower's
shareholders held on May 13, 2004.
6.18. Financial Contracts. The Borrower shall not, and shall not
permit any of its consolidated Subsidiaries to, enter into any Financial
Contract, other than Financial Contracts pursuant to which the Borrower or such
Subsidiary xxxxxx its actual or anticipated interest rate, foreign currency or
commodity exposure existing or anticipated at the time thereof.
6.19. ERISA. Except to the extent that such act or failure to act
would not result singly, or in the aggregate, after taking into account all
other such acts or failures to act, in a liability which might be reasonably
expected materially to adversely affect the ability of the Borrower and the
members of the Controlled Group, taken as a whole, to carry on business
substantially as now being or heretofore conducted, or to materially adversely
affect the financial condition of the Borrower and the members of the Controlled
Group taken as a whole, the Borrower shall not (i) engage, or permit any
Controlled Group member to engage, in any prohibited transaction described in
Sections 406 of ERISA or 4975 of the Code for which a statutory or class
exemption is not available or a private exemption has not been previously
obtained from the United States Department of Labor; (ii) permit to exist any
accumulated funding deficiency (as defined in Sections 302 of ERISA and 412 of
the Code); (iii) fail, or permit any member of the Controlled Group to fail, to
pay timely required contributions or annual installments due with respect to any
waived funding deficiency of any Plan; (iv) terminate, or permit any member of
the Controlled Group to terminate, any Plan which would result in any liability
of the Borrower or any member of the Controlled Group under Title IV of ERISA;
(v) fail, or permit any member of the Controlled Group to fail, to make any
contribution or payment to any Multiemployer Plan which the Borrower or any
member of the Controlled Group may be required to make under any agreement
relating to such Multiemployer Plan, or any law pertaining thereto; (vi) fail,
or permit any member of the Controlled Group to fail, to pay any required
installment or any other payment required under Section 412 of the Code on or
before the due date for such installment or other payment; or (vii) amend, or
permit any member of the Controlled Group to amend, a Plan resulting in an
increase in current liability for the plan year such that the Borrower or any
member of the Controlled Group is required to provide security to such Plan
under Section 401(a)(29) of the Code.
6.20. Environmental Compliance. The Borrower will not become, or
permit any Subsidiary to become, subject to any liabilities or costs which might
be reasonably expected materially to adversely affect the ability of the
Borrower and its Subsidiaries, taken as a whole, to carry on business
substantially as now being or heretofore conducted, or to materially adversely
affect the financial condition of the Borrower and its Subsidiaries taken as a
whole, arising out of or related to (i) the release or threatened release at any
location of any contaminant into the environment, or any remedial action in
49
response thereto or (ii) any violation of any environmental, health or safety
requirements of law (including, without limitation, any Environmental Laws).
6.21. Financial Covenants.
6.21.1. Maximum Leverage Ratio. As of the last day of each fiscal
quarter, the Borrower shall not permit the ratio (the "Leverage Ratio") of (i)
Consolidated Funded Indebtedness to (ii) EBITDA of the Borrower and its
Subsidiaries, as at the end of and for the period of four consecutive fiscal
quarters ending on such day, to be greater than (i) 2.00 to 1.00.
6.21.2. Minimum Fixed Charge Coverage Ratio. As of the last day of
each fiscal quarter, the Borrower shall not permit the ratio of (i) EBITR to
(ii) the sum of (a) Consolidated Interest Expense plus (b) Consolidated Rentals,
in each case for the period of four consecutive fiscal quarters ending on such
day, to be less than 4.00 to 1.00.
6.21.3. Maximum Ratio of Indebtedness to Total Capitalization. The
Borrower shall not permit the ratio of (i) Consolidated Indebtedness to (ii)
Consolidated Total Capitalization at any time to be greater than 0.50 to 1.00.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall
constitute a Default:
7.1. Breach of Representations or Warranties. Any representation
or warranty made or deemed made by or on behalf of the Borrower or any of its
Subsidiaries to the Lenders, any LC Issuer or the Agents under or in connection
with this Agreement, any Credit Extension, or any certificate or information
delivered in connection with this Agreement or any other Loan Document shall be
false in any material respect on the date as of which made.
7.2. Failure to Make Payments When Due. Nonpayment of (i)
principal of any Loan when due, (ii) any Reimbursement Obligation within one (1)
Business Day after the same becomes due, or (iii) interest upon any Loan or
Reimbursement Obligation or any Commitment Fee, LC Fee or other Obligations
under any of the Loan Documents within five (5) Business Days after such
interest, fee or other Obligation becomes due.
7.3. Breach of Covenants. (i) The breach by the Borrower of any of
the terms or provisions of Section 6.3 or Sections 6.10 through 6.21; or (ii)
the breach by the Borrower of any of the other terms or provisions of Article VI
which is not remedied within five (5) Business Days after the occurrence
thereof.
7.4. Other Breaches. The breach by the Borrower (other than a
breach which constitutes a Default under another Section of this Article VII) of
any of the terms or provisions of this Agreement or any other Loan Document
which is not remedied within thirty (30) days after the occurrence thereof.
7.5. Default as to Other Indebtedness.
50
(i) Failure of the Borrower or any of its Subsidiaries to pay
when due any Material Indebtedness; or
(ii) Any Material Indebtedness of the Borrower or any of its
Subsidiaries shall be declared to be due and payable or required to be prepaid
or repurchased (other than by a regularly scheduled payment) prior to the stated
maturity thereof; or
(iii) The Borrower or any of its Subsidiaries shall fail to pay, or
shall admit in writing its inability to pay, its debts generally as they become
due; or
(iv) The default by the Borrower or any of its Subsidiaries in the
performance (beyond the applicable grace period with respect thereto, if any) of
any term, provision or condition contained in any Material Indebtedness
Agreement, or any other event shall occur or condition exist, the effect of
which default, event or condition is to cause, or to permit the holder(s) of
such Material Indebtedness or the lender(s) under any Material Indebtedness
Agreement to cause such Material Indebtedness to become due prior to its stated
maturity or any commitment to lend under any Material Indebtedness Agreement to
be terminated prior to its stated expiration date.
7.6. Voluntary Bankruptcy; Appointment of Receiver; Etc. The
Borrower or any of its Subsidiaries shall (i) have an order for relief entered
with respect to it under the Federal bankruptcy laws as now or hereafter in
effect, (ii) make an assignment for the benefit of creditors, (iii) apply for,
seek, consent to, or acquiesce in, the appointment of a receiver, custodian,
trustee, examiner, liquidator or similar official for it or any Substantial
Portion of its Property, (iv) institute any proceeding seeking an order for
relief under the Federal bankruptcy laws as now or hereafter in effect or
seeking to adjudicate it a bankrupt or insolvent, or seeking dissolution,
winding up, liquidation, reorganization, arrangement, adjustment or composition
of it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors or fail to file an answer or other pleading
denying the material allegations of any such proceeding filed against it, (v)
take any corporate or partnership action to authorize or effect any of the
foregoing actions set forth in this Section 7.6, or (vi) fail to contest in good
faith any appointment or proceeding described in Section 7.7.
7.7. Involuntary Bankruptcy; Appointment of Receiver; Etc. Without
the application, approval or consent of the Borrower or any of its Subsidiaries,
a receiver, trustee, examiner, liquidator or similar official shall be appointed
for the Borrower or any of its Subsidiaries or any Substantial Portion of its
Property, or a proceeding described in Section 7.6(iv) shall be instituted
against the Borrower or any of its Subsidiaries and such appointment continues
undischarged or such proceeding continues undismissed or unstayed for a period
of thirty (30) consecutive days.
7.8. Custody or Control of Property. Any court, government or
governmental agency shall condemn, seize or otherwise appropriate, or take
custody or control of, all or any portion of the Property of the Borrower and
its Subsidiaries which, when taken together with all other Property of the
Borrower and its Subsidiaries so condemned, seized, appropriated, or taken
custody or control of, during the twelve-month period ending with the month in
which any such action occurs, constitutes a Substantial Portion.
51
7.9. Judgments. The Borrower or any of its Subsidiaries shall fail
within thirty (30) days to pay, bond or otherwise discharge one or more (i)
judgments or orders for the payment of money (except to the extent covered by
independent third-party insurance as to which the insurer has not disclaimed
coverage) in excess of $20,000,000 (or the equivalent amount thereof in
currencies other than U.S. dollars) in the aggregate, or (ii) nonmonetary
judgments or orders which, individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect, which judgment(s), in any such case,
is/are not stayed on appeal or otherwise being appropriately contested in good
faith.
7.10. Unfunded Liabilities. The sum of (a) the Unfunded Liabilities
of all Plans and (b) the present value of the aggregate unfunded liabilities to
provide the accrued benefits under all Foreign Pension Plans exceeds in the
aggregate an amount equal to the sum of (i) five percent (5%) of the value (as
of any date of determination) of all Plan assets allocable to Plan benefits
guaranteed by ERISA and (ii) five percent (5%) of the fair market value of the
assets held in trust or other funding vehicles for accrued benefits under all
Foreign Pension Plans, or any Reportable Event shall occur in connection with
any Plan.
7.11. Other ERISA Liabilities. The Borrower or any other member of
the Controlled Group has incurred withdrawal liability or become obligated to
make contributions to a Multiemployer Plan in an amount which, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Borrower or any other member of the Controlled Group, could reasonably be
expected to have a Material Adverse Effect.
7.12. Environmental Matters. The Borrower or any of its
Subsidiaries shall (i) be the subject of any proceeding or investigation
pertaining to the release by the Borrower, any of its Subsidiaries or any other
Person of any toxic or hazardous waste or substance into the environment, or
(ii) violate any Environmental Law, which, in the case of an event described in
clause (i) or clause (ii), could reasonably be expected to have a Material
Adverse Effect.
7.13. Change in Control. Any Change in Control shall occur.
7.14. The Guaranty. The Guaranty shall for any reason fail to
remain in full force or effect or any action shall be taken to discontinue or to
assert the invalidity or unenforceability of the Guaranty, or any Guarantor
shall fail to comply with any of the terms or provisions of Guaranty, or any
Guarantor shall deny that it has any further liability under the G uaranty or
shall give notice to such effect.
7.15. The Loan Documents. Any Loan Document shall for any reason
fail to remain in full force or effect or any action shall be taken to
discontinue or to assert the invalidity or unenforceability of any Loan
Document.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1. Acceleration. Facility LC Collateral Account.
52
(i) If any Default described in Section 7.6 or 7.7 occurs with
respect to the Borrower, the obligations of the Lenders to make Loans hereunder
and the obligation and power of the LC Issuers to issue Facility LCs shall
automatically terminate and the Obligations shall immediately become due and
payable without any election or action on the part of the Administrative Agent,
any LC Issuer or any Lender, and the Borrower will be and become thereby
unconditionally obligated, without any further notice, act or demand, to pay to
the Administrative Agent an amount in immediately available funds, which funds
shall be held in the Facility LC Collateral Account, equal to the difference of
(x) the amount of LC Obligations at such time plus the aggregate amount of all
fees and expenses that may accrue or arise until all Facility LCs have expired
or been terminated, less (y) the amount on deposit in the Facility LC Collateral
Account at such time which is free and clear of all rights and claims of third
parties and has not been applied against the Obligations (such difference, the
"Collateral Shortfall Amount"). If any other Default occurs, the Required
Lenders (or the Administrative Agent with the consent of the Required Lenders)
may (a) terminate or suspend the obligations of the Lenders to make Loans
hereunder and the obligation and power of the LC Issuers to issue Facility LCs,
or declare the Obligations to be due and payable, or both, whereupon such
obligations and power shall immediately terminate or be suspended and/or the
Obligations shall become immediately due and payable, without presentment,
demand, protest or notice of any kind, all of which the Borrower hereby
expressly waives, and (b) upon notice to the Borrower and in addition to the
continuing right to demand payment of all amounts payable under this Agreement,
make demand on the Borrower to pay, and the Borrower will, forthwith upon such
demand and without any further notice or act, pay to the Administrative Agent
the Collateral Shortfall Amount, which funds shall be deposited in the Facility
LC Collateral Account.
(ii) If at any time while any Default is continuing, the
Administrative Agent determines that the Collateral Shortfall Amount at such
time is greater than zero, the Administrative Agent may make demand on the
Borrower to pay, and the Borrower will, forthwith upon such demand and without
any further notice or act, pay to the Administrative Agent the Collateral
Shortfall Amount, which funds shall be deposited in the Facility LC Collateral
Account.
(iii) The Administrative Agent may at any time while any Default is
continuing and funds are deposited in the Facility LC Collateral Account, apply
such funds to the payment of the Obligations and any other amounts as shall from
time to time have become due and payable by the Borrower to the Lenders or the
LC Issuers under the Loan Documents.
(iv) At any time while any Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall have
any right to withdraw any of the funds held in the Facility LC Collateral
Account. After all of the Obligations have been indefeasibly paid in full and
the Aggregate Commitment has been terminated, any funds remaining in the
Facility LC Collateral Account shall be returned by the Administrative Agent to
the Borrower or paid to whomever may be legally entitled thereto at such time.
(v) If, within thirty (30) days after acceleration of the
maturity of the Obligations or termination of the obligations of the Lenders to
make Loans and the obligation and power of the LC Issuers to issue Facility LCs
hereunder as a result of any Default (other than any Default as described in
53
Section 7.6 or 7.7 with respect to the Borrower) and before any judgment or
decree for the payment of the Obligations due shall have been obtained or
entered, the Required Lenders (in their sole discretion) shall so direct, the
Administrative Agent shall, by notice to the Borrower, rescind and annul such
acceleration and/or termination.
8.2. Amendments. Subject to the provisions of this Section 8.2,
the Required Lenders (or the Administrative Agent with the consent in writing of
the Required Lenders) and the Borrower may enter into agreements supplemental
hereto for the purpose of adding or modifying any provisions to the Loan
Documents or changing in any manner the rights of the Lenders or the Borrower
hereunder or thereunder or waiving any Default hereunder or thereunder;
provided, however, that no such supplemental agreement shall, without the
consent of each Lender affected thereby:
(i) Extend the final maturity of any Loan to a date after the
Facility Termination Date or forgive all or any portion of
the principal amount thereof or any Reimbursement Obligation
related thereto, or reduce the rate or extend the time of
payment of interest or fees thereon or Reimbursement
Obligations related thereto (other than a waiver of the
application of the default rate of interest pursuant to
Section 2.12 hereof).
(ii) Change the percentage specified in the definition of Required
Lenders or any other percentage of Lenders specified to be
the applicable percentage in this Agreement to act on
specified matters or otherwise amend the definitions of
"Required Lenders" or "Pro Rata Share".
(iii) Extend the Facility Termination Date, or increase the amount
or otherwise extend the term of the Commitment of any Lender
hereunder or the commitment to issue Facility LCs.
(iv) Permit the Borrower to assign its rights or obligations under
this Agreement.
(v) Other than pursuant to a transaction permitted by the terms
of this Agreement, release any guarantor of the Obligations
or all or substantially all of the collateral, if any,
securing the Obligations.
(vi) Amend this Section 8.2.
(vii) Alter the manner in which payments or prepayments of
principal, interest or other amounts under the Loan Documents
shall be applied as among the Lenders.
No amendment of any provision of this Agreement relating to any Agent shall be
effective without the written consent of such Agent. No amendment of any
provision of this Agreement relating to any LC Issuer shall be effective without
the written consent of such LC Issuer. No amendment of any provision of this
Agreement relating to the Swing Line Lender or any Swing Line Loans shall be
effective without the written consent of the Swing Line Lender. The
Administrative Agent may waive payment of the fee required under Section 12.3.2
without obtaining the consent of any other party to this Agreement.
54
8.3. Preservation of Rights. No delay or omission of the Lenders,
the LC Issuers or Agents to exercise any right under the Loan Documents shall
impair such right or be construed to be a waiver of any Default or an
acquiescence therein, and the making of a Credit Extension notwithstanding the
existence of a Default or Unmatured Default or the inability of the Borrower to
satisfy the conditions precedent to such Credit Extension shall not constitute
any waiver or acquiescence. Any single or partial exercise of any such right
shall not preclude other or further exercise thereof or the exercise of any
other right, and no waiver, amendment or other variation of the terms,
conditions or provisions of the Loan Documents whatsoever shall be valid unless
in writing signed by, or by the Administrative Agent with the consent of, the
requisite number of Lenders required pursuant to Section 8.2, and then only to
the extent in such writing specifically set forth. All remedies contained in
the Loan Documents or by law afforded shall be cumulative and all shall be
available to the Agents, the LC Issuers and the Lenders until all of the
Obligations have been paid in full.
ARTICLE IX
GENERAL PROVISIONS
9.1. Survival of Representations. All representations and
warranties of the Borrower contained in this Agreement shall survive the making
of the Credit Extensions herein contemplated.
9.2. Governmental Regulation. Anything contained in this Agreement
to the contrary notwithstanding, neither any LC Issuer nor any Lender shall be
obligated to extend credit to the Borrower in violation of any limitation or
prohibition provided by any applicable statute or regulation.
9.3. Headings. Section headings in the Loan Documents are for
convenience of reference only and shall not govern the interpretation of any of
the provisions of the Loan Documents.
9.4. Entire Agreement. The Loan Documents embody the entire
agreement and understanding among the Borrower, the Agents, the LC Issuers and
the Lenders and supersede all prior agreements and understandings among the
Borrower, the Agents, the LC Issuers and the Lenders relating to the subject
matter thereof other than the fee letter described in Section 10.13.
9.5. Several Obligations; Benefits of this Agreement. The
respective obligations of the Lenders hereunder are several and not joint and no
Lender shall be the partner or agent of any other (except to the extent to which
the Agents are authorized to act as such). The failure of any Lender to perform
any of its obligations hereunder shall not relieve any other Lender from any of
its obligations hereunder. This Agreement shall not be construed so as to confer
any right or benefit upon any Person other than the parties to this Agreement
and their respective successors and assigns, provided, however, that the parties
hereto expressly agree that the Arranger shall enjoy the benefits of the
provisions of Sections 9.6, 9.10, 10.11, and 10.13 and each Person entitled to
indemnification under Sections 2.21.9 and 9.6(ii) shall enjoy the benefits of
such provisions, in each case to the extent specifically set forth therein and
shall have the right to enforce such provisions on its own behalf and in its own
name to the same extent as if it were a party to this Agreement.
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9.6. Expenses; Indemnification.
(i) The Borrower shall reimburse the Administrative Agent and
the Arranger for any reasonable costs, internal charges and out-of-pocket
expenses (including reasonable attorneys' and paralegals' fees, time charges and
expenses of attorneys and paralegals for the Administrative Agent and Arranger,
which attorneys and paralegals may (if outside counsel is not used) be employees
of the Administrative Agent or the Arranger, and expenses of and fees for other
advisors and professionals engaged by the Administrative Agent or the Arranger)
paid or incurred by the Administrative Agent or the Arranger in connection with
the investigation, preparation, negotiation, documentation, execution, delivery,
syndication, distribution (including, without limitation, via the internet),
review, amendment, modification, administration and collection of the Loan
Documents. The Borrower also agrees to reimburse the Agents, the Arranger, the
LC Issuers and the Lenders for any reasonable costs, internal charges and
out-of-pocket expenses (including reasonable attorneys' and paralegals' fees,
time charges and expenses of attorneys and paralegals for the Agents, the
Arranger, the LC Issuers and the Lenders, which attorneys and paralegals (if
outside counsel is not used) may be employees of the Agents, the Arranger, the
LC Issuers or the Lenders) paid or incurred by the Agents, the Arranger, any LC
Issuers or any Lender in connection with the collection and enforcement of the
Loan Documents.
(ii) The Borrower hereby further agrees to indemnify the Agents,
the Arranger, the LC Issuers, each Lender, their respective affiliates, and each
of their directors, officers and employees against all losses, claims, damages,
penalties, judgments, liabilities and expenses (including, without limitation,
all reasonable expenses of litigation or preparation therefor whether or not the
Agents, the Arranger, the LC Issuers, any Lender or any affiliate of any of the
foregoing is a party thereto, and all reasonable attorneys' and paralegals'
fees, time charges and expenses of attorneys and paralegals of the party seeking
indemnification, which attorneys and paralegals may (if outside counsel is not
used) be employees of such party seeking indemnification) which any of them may
pay or incur arising out of or relating to this Agreement, the other Loan
Documents, the transactions contemplated hereby or the direct or indirect
application or proposed application of the proceeds of any Credit Extension
hereunder, except to the extent that they are determined in a final,
non-appealable judgment by a court of competent jurisdiction to have resulted
from the gross negligence or willful misconduct of the party seeking
indemnification. The obligations of the Borrower under this Section 9.6 shall
survive the termination of this Agreement.
9.7. Numbers of Documents. All statements, notices, closing
documents, and requests hereunder shall be furnished to the Administrative
Agent with sufficient counterparts so that the Administrative Agent may furnish
one to each of the Lenders, to the extent that the Administrative Agent deems
necessary.
9.8. Accounting. Except as provided to the contrary herein, all
accounting terms used herein shall be interpreted and all accounting
determinations hereunder shall be made in accordance with Agreement Accounting
Principles. If any changes in generally accepted accounting principles are
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hereafter required or permitted and are adopted by the Borrower or any of its
Subsidiaries with the agreement of its independent certified public accountants
and such changes result in a change in the method of calculation of any of the
financial covenants, tests, restrictions or standards herein or in the related
definitions or terms used therein ("Accounting Changes"), the parties hereto
agree, at the Borrower's request, to enter into negotiations, in good faith, in
order to amend such provisions in a credit neutral manner so as to reflect
equitably such changes with the desired result that the criteria for evaluating
the Borrower's and its Subsidiaries' financial condition shall be the same after
such changes as if such changes had not been made; provided, however, until such
provisions are amended in a manner reasonably satisfactory to the Administrative
Agent and the Required Lenders, no Accounting Change shall be given effect in
such calculations and all financial statements and reports required to be
delivered hereunder shall be prepared in accordance with Agreement Accounting
Principles without taking into account such Accounting Changes. In the event
such amendment is entered into, all references in this Agreement to Agreement
Accounting Principles shall mean generally accepted accounting principles as of
the date of such amendment.
9.9. Severability of Provisions. Any provision in any Loan
Document that is held to be inoperative, unenforceable, or invalid in any
jurisdiction shall, as to that jurisdiction, be inoperative, unenforceable, or
invalid without affecting the remaining provisions in that jurisdiction or the
operation, enforceability, or validity of that provision in any other
jurisdiction, and to this end the provisions of all Loan Documents are declared
to be severable.
9.10. Nonliability of Lenders. The relationship between the
Borrower on the one hand and the Lenders, the LC Issuers and the Agents on the
other hand shall be solely that of borrower and lender. None of the Agents, the
Arranger, the LC Issuers or any Lender shall have any fiduciary responsibilities
to the Borrower. None of the Agents, the Arranger, the LC Issuers or any Lender
undertakes any responsibility to the Borrower to review or inform the Borrower
of any matter in connection with any phase of the Borrower's business or
operations. The Borrower agrees that none of the Agents, the Arranger, the LC
Issuers or any Lender shall have liability to the Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by the Borrower in connection
with, arising out of, or in any way related to, the transactions contemplated
and the relationship established by the Loan Documents, or any act, omission or
event occurring in connection therewith, unless it is determined in a final,
non-appealable judgment by a court of competent jurisdiction that such losses
resulted from the gross negligence or willful misconduct of the party from which
recovery is sought. None of the Agents, the Arranger, the LC Issuers or any
Lender shall have any liability with respect to, and the Borrower hereby waives,
releases and agrees not to xxx for, any special, indirect, consequential or
punitive damages suffered by the Borrower in connection with, arising out of, or
in any way related to the Loan Documents or the transactions contemplated
thereby.
9.11. Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower pursuant to this Agreement in
confidence, except for disclosure (i) to its Affiliates and to other Lenders and
their respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee or prospective
Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
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Person in connection with any legal proceeding to which such Lender is a party,
(vi) to such Lender's direct or indirect contractual counterparties in swap
agreements or to legal counsel, accountants and other professional advisors to
such counterparties, and (vii) permitted by Section 12.4.
9.12. Lenders Not Utilizing Plan Assets. Each of the Lenders and LC
Issuers hereby represents to parties hereto that none of the consideration used
by any of the Lenders, any LC Issuer or Designated Lenders to make its Credit
Extensions constitutes for any purpose of ERISA or Section 4975 of the Code
assets of any "plan" as defined in Section 3(3) of ERISA or Section 4975 of the
Code and the rights and interests of each of the Lenders, LC Issuers and
Designated Lenders in and under the Loan Documents shall not constitute such
"plan assets" under ERISA.
9.13. Nonreliance. Each Lender hereby represents that it is not
relying on or looking to any margin stock (as defined in Regulation U) as
collateral in the extension or maintenance of the credit provided for herein.
9.14. Disclosure. The Borrower and each Lender hereby acknowledge
and agree that JPMCB and/or its respective Affiliates and certain of the other
Lenders and/or their respective Affiliates from time to time may hold
investments in, make other loans to or have other relationships with the
Borrower and its Affiliates.
9.15. Subordination of Intercompany Indebtedness. The Borrower
agrees that any and all claims of the Borrower against any Guarantor with
respect to any "Intercompany Indebtedness" (as hereinafter defined) shall be
subordinate and subject in right of payment to the prior payment, in full and in
cash, of all obligations of such Guarantor pursuant to the Guaranty.
Notwithstanding any right of the Borrower to ask, demand, xxx for, take or
receive any payment from any Guarantor, all rights, liens and security interests
of the Borrower, whether now or hereafter arising and howsoever existing, in any
assets of any Guarantor (whether constituting part of any collateral given to
any Agent or any Lender to secure payment of all or any part of the obligations
of such Guarantor pursuant to the Guaranty or otherwise) shall be and are
subordinated to the rights of the Agents, the LC Issuers and the Lenders in
those assets. The Borrower shall not have any right to possession of any such
asset or to foreclose upon any such asset, whether by judicial action or
otherwise, unless and until all of the Obligations (other than contingent
indemnity obligations) shall have been fully paid and satisfied (in cash) and
all financing arrangements pursuant to any Loan Document among the Borrower and
the Agents, the LC Issuers and the Lenders have been terminated. If all or any
part of the assets of any Guarantor, or the proceeds thereof, are subject to any
distribution, division or application to the creditors of any Guarantor, whether
partial or complete, voluntary or involuntary, and whether by reason of
liquidation, bankruptcy, arrangement, receivership, assignment for the benefit
of creditors or any other action or proceeding, or if the business of any
Guarantor is dissolved or if substantially all of the assets of any Guarantor
are sold, then, and in any such event (such events being herein referred to as
an "Insolvency Event"), any payment or distribution of any kind or character,
either in cash, securities or other property, which shall be payable or
deliverable upon or with respect to any indebtedness of any Guarantor to the
Borrower ("Intercompany Indebtedness") shall be paid or delivered directly to
the Administrative Agent for application on any of the Obligations, due or to
become due, until such Obligations (other than contingent indemnity
obligations) shall have first been fully paid and satisfied (in cash). Should
any payment, distribution, security or instrument or proceeds thereof be
received by the Borrower upon or with respect to the Intercompany Indebtedness
after any Insolvency Event and prior to the satisfaction of all of the
Obligations (other than contingent indemnity obligations) and the termination
of all financing arrangements pursuant to any Loan Document among the Borrower
and the Agents, the LC Issuers and the Lenders, the Borrower shall receive and
hold the same in trust, as trustee, for the benefit of the Agents, the LC
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Issuers and the Lenders and shall forthwith deliver the same to the
Administrative Agent, for the benefit of the Agents, the LC Issuers and the
Lenders, in precisely the form received (except for the endorsement or
assignment of the Borrower where necessary), for application to any of the
Obligations, due or not due, and, until so delivered, the same shall be held in
trust by the Borrower as the property of the Agents, the LC Issuers and the
Lenders. If the Borrower fails to make any such endorsement or assignment to the
Administrative Agent, the Administrative Agent or any of its officers or
employees is irrevocably authorized to make the same. The Borrower agrees that
until the Obligations (other than the contingent indemnity obligations) have
been paid in full (in cash) and satisfied and all financing arrangements
pursuant to any Loan Document among the Borrower and the Agents, the LC Issuers
and the Lenders have been terminated, the Borrower will not assign or transfer
to any Person (other than the Administrative Agent) any claim the Borrower has
or may have against any Guarantor.
9.16. USA Patriot Act. Each Lender that is subject to the
requirements of the USA Patriot Act (Title III of Pub. L. 107-56 (signed into
law October 26, 2001)) (the "Act") hereby notifies the Borrower that pursuant to
the requirements of the Act, it is required to obtain, verify and record
information that identifies the Borrower, which information includes the name
and address of the Borrower and other information that will allow such Lender to
identify the Borrower in accordance with the Act.
ARTICLE X
THE AGENTS
10.1. Appointment; Nature of Relationship. JPMCB is hereby
appointed by each of the Lenders as the Administrative Agent hereunder and under
each other Loan Document, and each of the Lenders irrevocably authorizes the
Administrative Agent to act as the contractual representative of such Lender
with the rights and duties expressly set forth herein and in the other Loan
Documents. Each of Fleet National Bank, SunTrust Bank, Citicorp Leasing, Inc.
and The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch is hereby appointed by
each of the Lenders as a Syndication Agent hereunder and under each other Loan
Document, and each of the Lenders irrevocably authorizes each Syndication Agent
to act as the contractual representative of such Lender with the rights and
duties expressly set forth herein and in the other Loan Documents. Each Agent
agrees to act as such contractual representative upon the express conditions
contained in this Article X. Notwithstanding the use of the defined term
"Administrative Agent" or "Syndication Agent", it is expressly understood and
agreed that no Agent shall have any fiduciary responsibilities to any Lender by
reason of this Agreement or any other Loan Document and that each Agent is
merely acting as the contractual representative of the Lenders with only those
duties as are expressly set forth in this Agreement and the other Loan
Documents. In their capacities as the Lenders' contractual representative, the
Agents (i) do not hereby assume any fiduciary duties to any of the Lenders,
(ii) are "representatives" of the Lenders within the meaning of the term
"secured party" as defined in the Illinois Uniform Commercial Code and (iii) are
acting as independent contractors, the rights and duties of which are limited to
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those expressly set forth in this Agreement and the other Loan Documents. Each
of the Lenders hereby agrees to assert no claim against any Agent on any agency
theory or any other theory of liability for breach of fiduciary duty, all of
which claims each Lender hereby waives.
10.2. Powers. Each Agent shall have and may exercise such powers
under the Loan Documents as are specifically delegated to such Agent by the
terms of each thereof, together, in the Administrative Agent's case, with such
powers as are reasonably incidental thereto. The Agents shall have no implied
duties or fiduciary duties to the Lenders or any obligation to the Lenders to
take any action thereunder, except any action specifically provided by the Loan
Documents to be taken by the applicable Agents.
10.3. General Immunity. No Agent or any of its respective
directors, officers, agents or employees shall be liable to the Borrower, the
Lenders or any Lender for any action taken or omitted to be taken by it or them
hereunder or under any other Loan Document or in connection herewith or
therewith except to the extent such action or inaction is determined in a final,
non-appealable judgment by a court of competent jurisdiction to have arisen from
the gross negligence or willful misconduct of such Person.
10.4. No Responsibility for Loans, Recitals, etc. No Agent or any
of its respective directors, officers, agents or employees shall be responsible
for or have any duty to ascertain, inquire into, or verify (a) any statement,
warranty or representation made in connection with any Loan Document or any
borrowing hereunder; (b) the performance or observance of any of the covenants
or agreements of any obligor under any Loan Document, including, without
limitation, any agreement by an obligor to furnish information directly to each
Lender; (c) the satisfaction of any condition specified in Article IV, except
receipt of items required to be delivered solely to the Agents or any of them;
(d) the existence or possible existence of any Default or Unmatured Default; (e)
the validity, enforceability, effectiveness, sufficiency or genuineness of any
Loan Document or any other instrument or writing furnished in connection
therewith; (f) the value, sufficiency, creation, perfection or priority of any
Lien in any collateral security; or (g) the financial condition of the Borrower
or any guarantor of any of the Obligations or of any of the Borrower's or any
such guarantor's respective Subsidiaries. The Agents shall have no duty to
disclose to the Lenders information that is not required to be furnished by the
Borrower to any Agent at such time, but is voluntarily furnished by the Borrower
to such Agent (either in its capacity as an Agent or in its individual
capacity).
10.5. Action on Instructions of Lenders. Each Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
under any other Loan Document in accordance with written instructions signed by
the Required Lenders (or all of the Lenders in the event that and to the extent
that this Agreement expressly requires such), and such instructions and any
action taken or failure to act pursuant thereto shall be binding on all of the
Lenders. The Lenders hereby acknowledge that the Agents shall be under no duty
to take any discretionary action permitted to be taken by any of them pursuant
to the provisions of this Agreement or any other Loan Document unless they shall
be requested in writing to do so by the Required Lenders (or all of the Lenders
in the event that and to the extent that this Agreement expressly requires
such). Each Agent shall be fully justified in failing or refusing to take any
action hereunder and under any other Loan Document unless it shall first be
indemnified to its satisfaction by the Lenders pro rata against any and all
liability, cost and expense that it may incur by reason of taking or continuing
to take any such action.
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10.6. Employment of Agents and Counsel. Any Agent may execute any
of its respective duties as an Agent hereunder and under any other Loan Document
by or through employees, agents, and attorneys-in-fact and shall not be
answerable to the Lenders, except as to money or securities received by it or
its authorized agents, for the default or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. Each Agent shall be
entitled to advice of counsel concerning the contractual arrangement between
such Agent and the Lenders and all matters pertaining to such Agent's duties
hereunder and under any other Loan Document.
10.7. Reliance on Documents; Counsel. Each Agent shall be entitled
to rely upon any Note, notice, consent, certificate, affidavit, letter,
telegram, statement, paper or document reasonably believed by it to be genuine
and correct and to have been signed or sent by the proper Person or Persons,
and, in respect to legal matters, upon the opinion of counsel selected by such
Agent, which counsel may be employees of such Agent.
10.8. Agents' Reimbursement and Indemnification. The Lenders agree
to reimburse and indemnify each Agent ratably in proportion to the Lenders' Pro
Rata Shares (i) for any amounts not reimbursed by the Borrower for which such
Agent is entitled to reimbursement by the Borrower under the Loan Documents,
(ii) for any other expenses incurred by such Agent on behalf of the Lenders, in
connection with the preparation, execution, delivery, administration and
enforcement of the Loan Documents (including, but not limited to, any expenses
incurred by such Agent in connection with any dispute between such Agent and any
Lender or between two or more of the Lenders) and (iii) for any liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements of any kind and nature whatsoever which may be imposed
on, incurred by or asserted against such Agent in any way relating to or arising
out of the Loan Documents or any other document delivered in connection
therewith or the transactions contemplated thereby (including, without
limitation, for any such amounts incurred by or asserted against such Agent in
connection with any dispute between such Agent and any Lender or between two or
more of the Lenders), or the enforcement of any of the terms of the Loan
Documents or of any such other documents, provided that (i) no Lender shall be
liable for any of the foregoing to the extent any of the foregoing is found in a
final, non-appealable judgment in a court of competent jurisdiction to have
resulted from the gross negligence or willful misconduct of such Agent and (ii)
any indemnification required pursuant to Section 3.5(vii) shall, notwithstanding
the provisions of this Section 10.8, be paid by the relevant Lender in
accordance with the provisions thereof. The obligations of the Lenders under
this Section 10.8 shall survive payment of the Obligations and termination of
this Agreement.
10.9. Notice of Default. No Agent shall be deemed to have knowledge
or notice of the occurrence of any Default or Unmatured Default hereunder
unless such Agent has received written notice from a Lender or LC Issuer or the
Borrower referring to this Agreement describing such Default or Unmatured
Default and stating that such notice is a "notice of default". In the event that
any Agent receives such a notice, such Agent shall give prompt notice thereof to
the Lenders and the LC Issuers.
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10.10. Rights as a Lender. In the event any Agent is a Lender, such
Agent shall have the same rights and powers hereunder and under any other Loan
Document with respect to its Commitment and its Credit Extensions as any Lender
and may exercise the same as though it were not an Agent, and the term "Lender"
or "Lenders" shall, at any time when any Agent is a Lender, unless the context
otherwise indicates, include such Agent in its individual capacity. Each Agent
and its Affiliates may accept deposits from, lend money to, and generally engage
in any kind of trust, debt, equity or other transaction, in addition to those
contemplated by this Agreement or any other Loan Document, with the Borrower or
any of its Subsidiaries in which the Borrower or such Subsidiary is not
restricted hereby from engaging with any other Person.
10.11. Lender Credit Decision. Each Lender acknowledges that it has,
independently and without reliance upon any Agent, the Arranger or any other
Lender and based on the financial statements prepared by the Borrower and such
other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement and the other Loan
Documents. Each Lender also acknowledges that it will, independently and without
reliance upon any Agent, the Arranger or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents.
10.12. Successor Agents. Any Agent may resign at any time by giving
written notice thereof to the Lenders and the Borrower, such resignation to be
effective upon the appointment of a successor Agent or, if no successor Agent
has been appointed, forty-five (45) days after the retiring Agent gives notice
of its intention to resign. Upon any such resignation, the Required Lenders
shall have the right (with, so long as no Default has occurred or is continuing
at such time, the approval of the Borrower; such approval not to be unreasonably
withheld) to appoint, on behalf of the Borrower and the Lenders, a successor
Agent. If no successor Agent shall have been so appointed by the Required
Lenders within thirty (30) days after the resigning Agent's giving notice of its
intention to resign, then the resigning Agent may appoint, on behalf of the
Borrower and the Lenders, a successor Agent. Notwithstanding the previous
sentence, any Agent may at any time without the consent of the Borrower or any
Lender, appoint any of its Affiliates which is a commercial bank as its
successor Agent hereunder. If an Agent has resigned and no successor Agent has
been appointed, the Lenders may perform all the duties of such Agent hereunder
and the Borrower shall make all payments in respect of the Obligations to the
applicable Lender and for all other purposes shall deal directly with the
Lenders. No successor Agent shall be deemed to be appointed hereunder until such
successor Agent has accepted the appointment. Any such successor Agent shall be
a commercial bank having capital and retained earnings of at least $100,000,000.
Upon the acceptance of any appointment as an 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 resigning Agent. Upon the
effectiveness of the resignation of an Agent, the resigning Agent shall be
discharged from its duties and obligations hereunder and under the Loan
Documents. After the effectiveness of the resignation of an Agent, the
provisions of this Article X shall continue in effect for the benefit of such
Agent in respect of any actions taken or omitted to be taken by it while it was
acting as an Agent hereunder and under the other Loan Documents. In the event
that there is a successor to the Administrative Agent by merger, or the
Administrative Agent assigns its duties and obligations to an Affiliate pursuant
to this Section 10.12, then (a) the term "Prime Rate" as used in this Agreement
shall mean the prime rate, base rate or other analogous rate of the new
Administrative Agent and (b) the references to "JPMCB" in the definitions of
"Eurodollar Base Rate" and "Prime Rate" and in the last sentence of Section 2.13
shall be deemed to be a reference to such successor Administrative Agent in its
individual capacity.
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10.13. Agent and Arranger Fees. The Borrower agrees to pay to the
Administrative Agent and the Arranger, for their respective accounts, the fees
agreed to by the Borrower, the Administrative Agent and the Arranger pursuant to
that certain letter agreement dated October 14, 2004 or as otherwise agreed from
time to time.
10.14. Delegation to Affiliates. The Borrower and the Lenders agree
that any Agent may delegate any of its duties under this Agreement to any of its
Affiliates. Any such Affiliate (and such Affiliate's directors, officers, agents
and employees) which performs duties in connection with this Agreement shall be
entitled to the same benefits of the indemnification, waiver and other
protective provisions to which the applicable Agent is entitled under Articles
IX and X.
10.15. Release of Guarantors. Upon the liquidation or dissolution of
any Guarantor, or sale of the Capital Stock of any Guarantor, in each case which
is permitted pursuant to the terms of any Loan Document or consented to in
writing by the Required Lenders or all of the Lenders, as applicable, and upon
at least five (5) Business Days' prior written request by the Borrower, the
Administrative Agent shall (and is hereby irrevocably authorized by the Lenders
to) execute such documents as may be necessary to evidence the release of the
applicable Guarantor from its obligations under the Guaranty; provided, however,
that (i) the Administrative Agent shall not be required to execute any such
document on terms which, in the Administrative Agent's opinion, would expose the
Administrative Agent to liability or create any obligation or entail any
consequence other than the release of such Guarantor without recourse or
warranty, and (ii) such release shall not in any manner discharge, affect or
impair the Obligations, any other Guarantor's obligations under the Guaranty,
or, if applicable, any obligations of the Borrower or any Subsidiary in respect
of the proceeds of any such sale retained by the Borrower or any Subsidiary.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1. Setoff. In addition to, and without limitation of, any rights
of the Lenders under applicable law, if the Borrower becomes insolvent, however
evidenced, or any Default occurs, any and all deposits (including all account
balances, whether provisional or final and whether or not collected or
available) and any other Indebtedness at any time held or owing by any Lender or
any Affiliate of any Lender to or for the credit or account of the Borrower may
be offset and applied toward the payment of the Obligations owing to such
Lender, whether or not the Obligations, or any part thereof, shall then be due.
11.2. Ratable Payments. If any Lender, whether by setoff or
otherwise, has payment made to it upon its Outstanding Credit Exposure (other
than payments received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater
proportion than that received by any other Lender, such Lender agrees, promptly
upon demand, to purchase a participation in the Aggregate Outstanding Credit
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Exposure held by the other Lenders so that after such purchase each Lender will
hold its Pro Rata Share of the Aggregate Outstanding Credit Exposure. If any
Lender, whether in connection with setoff or amounts which might be subject to
setoff or otherwise, receives collateral or other protection for its Obligations
or such amounts which may be subject to setoff, such Lender agrees, promptly
upon demand, to take such action necessary such that all Lenders share in the
benefits of such collateral ratably in proportion to their respective Pro Rata
Shares of the Aggregate Outstanding Credit Exposure. In case any such payment is
disturbed by legal process, or otherwise, appropriate further adjustments shall
be made.
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1. Successors and Assigns; Designated Lenders.
12.1.1. Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of the Borrower, the
Agents, the LC Issuers and the Lenders and their respective successors and
assigns, except that (i) the Borrower shall not have the right to assign its
rights or obligations under the Loan Documents without the consent of all of the
Lenders, and any such assignment in violation of this Section 12.1.1 shall be
null and void, and (ii) any assignment by any Lender must be made in compliance
with Section 12.3. The parties to this Agreement acknowledge that clause (ii) of
this Section 12.1.1 relates only to absolute assignments and does not prohibit
assignments creating security interests, including, without limitation, (x) any
pledge or assignment by any Lender of all or any portion of its rights under
this Agreement and any Note to a Federal Reserve Bank or (y) in the case of a
Lender which is a fund, any pledge or assignment of all or any portion of its
rights under this Agreement and any Note to its trustee in support of its
obligations to its trustee; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, which at the
time of making such request or giving such authority or consent is the owner of
the rights to any Loan (whether or not a Note has been issued in evidence
thereof), shall be conclusive and binding on any subsequent holder or assignee
of the rights to such Loan.
12.1.2. Designated Lenders.
(i) Subject to the terms and conditions set forth in this Section
12.1.2, any Lender may from time to time elect to designate an Eligible Designee
to provide all or any part of the Revolving Loans to be made by such Lender
pursuant to this Agreement; provided that the designation of an Eligible
Designee by any Lender for purposes of this Section 12.1.2 shall be subject to
64
the approval of the Administrative Agent (which consent shall not be
unreasonably withheld or delayed). Upon the execution by the parties to each
such designation of an agreement in the form of Exhibit G hereto (a "Designation
Agreement") and the acceptance thereof by the Administrative Agent, the Eligible
Designee shall become a Designated Lender for purposes of this Agreement. The
Designating Lender shall thereafter have the right to permit the Designated
Lender to provide all or a portion of the Revolving Loans to be made by the
Designating Lender pursuant to the terms of this Agreement and the making of the
Revolving Loans or portion thereof shall satisfy the obligations of the
Designating Lender to the same extent, and as if, such Revolving Loan was made
by the Designating Lender. As to any Revolving Loan made by it, each Designated
Lender shall have all the rights which a Lender making such Revolving Loan would
have under this Agreement and otherwise; provided, (x) that all voting rights
under this Agreement shall be exercised solely by the Designating Lender, (y)
each Designating Lender shall remain solely responsible to the other parties
hereto for its obligations under this Agreement, including the obligations of a
Lender in respect of Revolving Loans made by its Designated Lender and (z) no
Designating Lender shall be entitled to reimbursement under Article III hereof
for any amount which would exceed the amount that would have been payable by the
Borrower to the Designating Lender from which the Designated Lender obtained any
interests hereunder. No additional Notes shall be required with respect to
Revolving Loans provided by a Designated Lender; provided, however, to the
extent any Designated Lender shall advance funds, the Designating Lender shall
be deemed to hold the Notes in its possession as an agent for such Designated
Lender to the extent of the Revolving Loan funded by such Designated Lender.
Such Designating Lender shall act as administrative agent for its Designated
Lender and give and receive notices and communications hereunder. Any payments
for the account of any Designated Lender shall be paid to its Designating Lender
as administrative agent for such Designated Lender and neither the Borrower nor
the Administrative Agent shall be responsible for any Designating Lender's
application of such payments. In addition, any Designated Lender may (1) with
notice to, but without the consent of the Borrower or the Administrative Agent,
assign all or portions of its interests in any Revolving Loans to its
Designating Lender or to any financial institution consented to by the
Administrative Agent providing liquidity and/or credit facilities to or for the
account of such Designated Lender and (2) subject to advising any such Person
that such information is to be treated as confidential in accordance with such
Person's customary practices for dealing with confidential, non-public
information, disclose on a confidential basis any non-public information
relating to its Revolving Loans to any rating agency, commercial paper dealer or
provider of any guarantee, surety or credit or liquidity enhancement to such
Designated Lender.
(ii) Each party to this Agreement hereby agrees that it shall not
institute against, or join any other Person in instituting against, any
Designated Lender any bankruptcy, reorganization, arrangement, insolvency or
liquidation proceeding or other proceedings under any federal or state
bankruptcy or similar law for one year and a day after the payment in full of
all outstanding senior indebtedness of any Designated Lender; provided that the
Designating Lender for each Designated Lender hereby agrees to indemnify, save
and hold harmless each other party hereto for any loss, cost, damage and expense
arising out of its inability to institute any such proceeding against such
Designated Lender. This Section 12.1.2 shall survive the termination of this
Agreement.
12.2. Participations.
65
12.2.1. Permitted Participants; Effect. Any Lender may, in the
ordinary course of its business and in accordance with applicable law, at any
time sell to one or more banks or other entities ("Participants") participating
interests in any Outstanding Credit Exposure of such Lender, any Note held by
such Lender, any Commitment of such Lender or any other interest of such Lender
under the Loan Documents. In the event of any such sale by a Lender of
participating interests to a Participant, such Lender's obligations under the
Loan Documents shall remain unchanged, such Lender shall remain solely
responsible to the other parties hereto for the performance of such obligations,
such Lender shall remain the owner of its Outstanding Credit Exposure and the
holder of any Note issued to it in evidence thereof for all purposes under the
Loan Documents, all amounts payable by the Borrower under this Agreement shall
be determined as if such Lender had not sold such participating interests, and
the Borrower and the Administrative Agent shall continue to deal solely and
directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2. Voting Rights. Each Lender shall retain the sole right to
approve, without the consent of any Participant, any amendment, modification or
waiver of any provision of the Loan Documents other than any amendment,
modification or waiver with respect to any Credit Extension or Commitment in
which such Participant has an interest which (i) extends the final maturity of
any Loan or any Facility LC beyond the Facility Termination Date or forgives all
or a portion of the principal amount thereof or interest or fees thereon, or
reduces the rate or extends the time of payment of interest or fees on any such
Loan, any Reimbursement Obligation or the related Commitment or (ii) extends the
Facility Termination Date, or (iii) releases any guarantor of the Obligations
(except as permitted hereby) or all or substantially all of the collateral, if
any, securing the Obligations.
12.2.3. Benefit of Certain Provisions. The Borrower agrees that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
The Borrower further agrees that each Participant shall be entitled to the
benefits of Sections 3.1, 3.2, 3.4 and 3.5 to the same extent as if it were a
Lender and had acquired its interest by assignment pursuant to Section 12.3,
provided that (i) a Participant shall not be entitled to receive any greater
payment under Section 3.1, 3.2 or 3.5 than the Lender who sold the participating
interest to such Participant would have received had it retained such interest
for its own account, unless the sale of such interest to such Participant is
made with the prior written consent of the Borrower, and (ii) any Participant
organized under the laws of any jurisdiction other than the United States of
America or any state thereof agrees to comply with the provisions of Section 3.5
to the same extent as if it were a Lender.
12.3. Assignments.
66
12.3.1. Permitted Assignments. Any Lender may, in the ordinary course
of its business and in accordance with applicable law, at any time assign to one
or more banks or other entities ("Purchasers") all or any part of its rights and
obligations under the Loan Documents. Such assignment shall evidenced by an
agreement be substantially in the form of Exhibit C or in such other form as may
be agreed to by the parties thereto (each such agreement, an "Assignment
Agreement"). The consent of (i) the Borrower and the LC Issuers shall be
required prior to an Assignment Agreement becoming effective with respect to a
Purchaser which is not a Lender, an Affiliate thereof or a Designated Lender;
provided, however, that if a Default has occurred and is continuing, the consent
of the Borrower shall not be required and (ii) the Administrative Agent shall be
required prior to an Assignment Agreement becoming effective. Each such consent
shall not be unreasonably withheld or delayed. Each such assignment with respect
to a Purchaser which is not a Lender, an Affiliate thereof or a Designated
Lender shall (unless each of the Borrower and the Administrative Agent otherwise
consents) be in an amount not less than the lesser of (i) $5,000,000 and
integral multiples of $1,000,000 in excess thereof or (ii) the remaining amount
of the assigning Lender's Commitment (calculated as at the date of such
assignment), or, if the Facility Termination Date has occurred, the remaining
amount of the assigning Lender's Outstanding Credit Exposure.
12.3.2. Effect; Effective Date. Upon (i) delivery to the
Administrative Agent of an Assignment Agreement, together with any consents
required by Section 12.3.1, and (ii) payment of a $3,000 fee to the
Administrative Agent for processing such assignment (unless such fee is waived
by the Administrative Agent), such assignment shall become effective on the
effective date specified in such assignment. The Assignment Agreement shall
contain a representation by the Purchaser to the effect that none of the
consideration used to make the purchase of the Commitment and Outstanding Credit
Exposure under the applicable Assignment Agreement constitutes "plan assets" as
defined under ERISA and that the rights and interests of the Purchaser in and
under the Loan Documents will not be "plan assets" under ERISA. On and after the
effective date of such assignment, such Purchaser shall for all purposes be a
Lender party to this Agreement and any other Loan Document executed by or on
behalf of the Lenders and shall have all the rights and obligations of a Lender
under the Loan Documents, to the same extent as if it were an original party
hereto, and no further consent or action by the Borrower, the Lenders or the
Administrative Agent shall be required to release the transferor Lender with
respect to the percentage of the Aggregate Commitment and Outstanding Credit
Exposure assigned to such Purchaser. Upon the consummation of any assignment to
a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Administrative Agent and the Borrower shall, if the transferor Lender or the
Purchaser desires that its Loans be evidenced by Notes, make appropriate
arrangements so that new Notes or, as appropriate, replacement Notes are issued
to such transferor Lender and new Notes or, as appropriate, replacement Notes,
are issued to such Purchaser, in each case in principal amounts reflecting their
respective Commitments (or, if the Facility Termination Date has occurred, their
respective Outstanding Credit Exposure, as adjusted pursuant to such assignment.
12.3.3. The Register. Notwithstanding anything to the contrary in
this Agreement, the Borrower hereby designates the Administrative Agent, and the
Administrative Agent, hereby accepts such designation, to serve as the
Borrower's contractual representative solely for purposes of this Section
12.3.3. In this connection, the Administrative Agent shall maintain at its
67
address referred to in Section 13.1 a copy of each Assignment Agreement
delivered to and accepted by it pursuant to this Section 12.3.3 and a register
(the "Register") for the recordation of the names and addresses of the Lenders
and the Commitment of, principal amount of and interest on the Revolving Loans
owing to, each Lender from time to time and whether such Lender is an original
Lender or the assignee of another Lender pursuant to an assignment under this
Section 12.3. The entries in the Register shall be conclusive and binding for
all purposes, absent manifest error, and the Borrower and each of its
Subsidiaries, the Agents, the LC Issuers and the Lenders may treat each Person
whose name is recorded in the Register as a Lender hereunder for all purposes of
this Agreement. The Register shall be available for inspection by the Borrower
or any Lender at any reasonable time and from time to time upon reasonable prior
notice.
12.4. Dissemination of Information. The Borrower authorizes each
Lender to disclose to any Participant or Purchaser or any other Person acquiring
an interest in the Loan Documents by operation of law (each a "Transferee") and
any prospective Transferee any and all information in such Lender's possession
concerning the creditworthiness of the Borrower and its Subsidiaries, including
without limitation any information contained in any reports or other information
delivered by the Borrower pursuant to Section 6.1; provided that each Transferee
and prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5. Tax Treatment. If any interest in any Loan Document is
transferred to any Transferee which is organized under the laws of any
jurisdiction other than the United States or any State thereof, the transferor
Lender shall cause such Transferee, concurrently with the effectiveness of such
transfer, to comply with the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1. Notices. Except as otherwise permitted by Section 2.14 with
respect to borrowing notices, all notices, requests and other communications to
any party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (x)
in the case of the Borrower, the Agents and any Lender party hereto as of the
Closing Date, at its respective address or facsimile number set forth on the
signature pages hereof or (y) in the case of any party, at such other address or
facsimile number as such party may hereafter specify for the purpose by notice
to the Administrative Agent and the Borrower in accordance with the provisions
of this Section 13.1. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by mail, 72 hours after such communication is deposited
in the mails with first class postage prepaid, addressed as aforesaid, or (iii)
if given by any other means, when delivered (or, in the case of electronic
transmission, received) at the address specified in this Section; provided that
notices to the Administrative Agent under Article II shall not be effective
until received.
13.2. Change of Address. The Borrower and the Administrative Agent
may each change the address for service of notice upon it by a notice in writing
to the other parties hereto. Any Lender may change its address for service of
notice upon it by a notice in writing to the Borrower and the Administrative
Agent.
68
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of
which taken together shall constitute one agreement, and any of the parties
hereto may execute this Agreement by signing any such counterpart. This
Agreement shall be effective when it has been executed by the Borrower, the
Agents, the LC Issuers and the Lenders and each party has notified the Agents by
facsimile transmission or telephone that it has taken such action.
ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1. CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE
CONTAINING A CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS
105/5-1 ET SEQ., BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS
PROVISIONS) OF THE STATE OF ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS
APPLICABLE TO NATIONAL BANKS.
15.2. CONSENT TO JURISDICTION. THE BORROWER HEREBY IRREVOCABLY
SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES FEDERAL OR
ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION OR PROCEEDING
ARISING OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND THE BORROWER HEREBY
IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR PROCEEDING MAY
BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES ANY OBJECTION
IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT, ACTION OR
PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN INCONVENIENT FORUM.
NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE AGENTS, ANY LC ISSUER OR ANY LENDER
TO BRING PROCEEDINGS AGAINST THE BORROWER IN THE COURTS OF ANY OTHER
JURISDICTION. ANY JUDICIAL PROCEEDING BY THE BORROWER AGAINST THE AGENTS, ANY LC
ISSUER OR ANY LENDER OR ANY AFFILIATE OF THE AGENTS, ANY LC ISSUER OR ANY LENDER
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED
TO, OR CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN
CHICAGO, ILLINOIS OR THE CITY IN WHICH THE PRINCIPAL OFFICE OF SUCH AGENT,
LENDER OR AFFILIATE, AS THE CASE MAY BE, IS LOCATED.
15.3. WAIVER OF JURY TRIAL. THE BORROWER, THE AGENTS, EACH LC
ISSUER AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING
INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT,
CONTRACT OR OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH
ANY LOAN DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
69
[Signature Pages Follow]
70
IN WITNESS WHEREOF, the Borrower, the Lenders, the LC Issuers and the
Agents have executed this Agreement as of the date first above written.
XXXXXXXX'X INTERNATIONAL, INC., as the
Borrower
By:/s/ Xxxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Executive Vice President and Chief
Financial Officer and Treasurer
0000 X. 000xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
With a copy
(in the case of notices of Default) to:
Attention: General Counsel
Fax: (000) 000-0000
and
Xxxxxxxxx Xxxxxxx Xxxxx Xxxxxx LLP
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx Xxxx, XX 00000
Attention: Xxxxx Xxx
Fax: (000) 000-0000
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
JPMORGAN CHASE BANK, N.A., as the
Administrative Agent, as Swing Line
Lender, as LC Issuer and as a Lender
By:/s/ Xxxxxxx Xxxxxxxxx
-----------------------------------------
Name: Xxxxxxx Xxxxxxxxx
Title: Director
0 Xxxx Xxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
E-mail: xxxxxxx_xxxxxxxxx@xxxxxxx.xxx
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
FLEET NATIONAL BANK, as a Syndication
Agent and as a Lender
By:/s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
SUNTRUST BANK, as a Syndication Agent
and as a Lender
By:/s/ Xxxxx X. Xxxx
-----------------------------------------
Name: Xxxxx X. Xxxx
Title: Managing Director
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
CITICORP LEASING, INC., as a Syndication
Agent and as a Lender
By:/s/ Xxxxx Xxxx
-----------------------------------------
Name: Xxxxx Xxxx
Title: Vice President
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
THE BANK OF TOKYO-MITSUBISHI, LTD.,
CHICAGO BRANCH, as a Syndication Agent
and as a Lender
By:/s/ Shinichire Muneohika
-----------------------------------------
Name: Shinichire Muneohika
Title: Deputy General Manager
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
WACHOVIA BANK, NATIONAL ASSOCIATION, as a
Lender
By:/s/ Xxxxx X. Xxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Associate
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
XXXXX FARGO BANK, N.A., as a Lender
By:/s/ Xxxxxxxx Xxxxxx
-----------------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
FIFTH THIRD BANK, as a Lender
By:/s/ Xxxxx X. X. Xxxxx
-----------------------------------------
Name: Xxxxx X. X. Xxxxx
Title: Vice President
_________________________________________
_________________________________________
Attention: ______________________________
Phone: __________________________________
Fax: ____________________________________
E-mail: _________________________________
Signature Page to
5-Year Revolving Credit Agreement
Xxxxxxxx'x International, Inc.
PRICING SCHEDULE
============================= ====================== ======================= ====================== ======================
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV
MARGIN STATUS STATUS STATUS STATUS
----------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Eurodollar Rate 0.50% 0.625% 0.75% 0.875%
----------------------------- ---------------------- ----------------------- ---------------------- ----------------------
ABR 0% 0% 0% 0%
============================= ====================== ======================= ====================== ======================
============================= ====================== ======================= ====================== ======================
APPLICABLE FEE LEVEL I LEVEL II LEVEL III LEVEL IV
RATE STATUS STATUS STATUS STATUS
----------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Commitment Fee 0.10% 0.125% 0.15% 0.175%
----------------------------- ---------------------- ----------------------- ---------------------- ----------------------
Letter of Credit Fee 0.50% 0.625% 0.75% 0.875%
============================= ====================== ======================= ====================== ======================
For the purposes of this Schedule, the following terms have the
following meanings, subject to the final paragraph of this Schedule:
"Financials" means the annual or quarterly financial statements of the
Borrower delivered pursuant to the Credit Agreement.
"Level I Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Leverage Ratio is less than or equal to 0.50 to 1.00.
"Level II Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status and (ii) the Leverage Ratio is
less than or equal to 1.00 to 1.00.
"Level III Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, (i)
the Borrower has not qualified for Level I Status or Level II Status and (ii)
the Leverage Ratio is less than or equal to 1.50 to 1.00.
"Level IV Status" exists at any date if, as of the last day of the
fiscal quarter of the Borrower referred to in the most recent Financials, the
Borrower has not qualified for Level I Status, Level II Status or Level III
Status.
"Status" means Level I Status, Level II Status, Level III Status or
Level IV Status.
The Applicable Margin and Applicable Fee Rate shall be determined in
accordance with the foregoing table based on the Borrower's Status as reflected
in the then most recent Financials. Adjustments, if any, to the Applicable
Margin or Applicable Fee Rate shall be effective five Business Days after the
Administrative Agent has received the applicable Financials. If the Borrower
fails to deliver the Financials to the Administrative Agent at the time required
pursuant to the Credit Agreement, then the Applicable Margin and Applicable Fee
Rate shall be the highest Applicable Margin and Applicable Fee Rate set forth in
the foregoing table until five days after such Financials are so delivered.
1
Subject to the immediately preceding sentence, the Applicable Margin and
Applicable Fee Rate shall be based on Level I Status for the period commencing
on the Closing Date to but not including the fifth Business Day after the
Administrative Agent has received the Financials for the period ending December
26, 2004.
2
COMMITMENT SCHEDULE
LENDER COMMITMENT
JPMorgan Chase Bank, N.A. $25,000,000
Fleet National Bank $20,000,000
SunTrust Bank $20,000,000
Citicorp Leasing, Inc. $20,000,000
The Bank of Tokyo-Mitsubishi, Ltd., Chicago Branch $20,000,000
Wachovia Bank, National Association $15,000,000
Xxxxx Fargo Bank, N.A. $15,000,000
Fifth Third Bank $15,000,000
AGGREGATE COMMITMENT $150,000,000.00
3
SCHEDULE 2.21
EXISTING LETTERS OF CREDIT
Beneficiary Expiration Auto Renews Amount
Date (Y/N)
National Union Fire Insurance Co. 09/17/05 Y $363,824.00
National Union Fire Insurance Co. 09/17/05 Y $940,000.00
Lumbermens Mutual Casualty Company 09/17/05 Y $900,000.00
Lumbermens Mutual Casualty Company 09/22/05 Y $900,000.00
Lumbermens Mutual Casualty Company 01/01/06 Y $1,000,000.00
Zurich American Insurance Co 12/31/05 Y $2,000,000.00
Lumbermens Mutual Casualty Company 01/01/06 Y $1,030,000.00
Lumbermens Mutual Casualty Company 03/31/05 Y $827,000.00
Lumbermens Mutual Casualty Company 12/19/04 Y $2,500,000.00
Commissioner of Insurance State of Vermont 10/21/05 Y $1,400,000.00
Board of County Supervisors of Prince Xxxxxxx 07/27/05 Y $56,718.00
County
City of Cottage Grove 12/30/04 N $31,420.50
Maryland Dept of Transportation 06/18/05 Y $24,000.00
----------
Total: $11,972,962.50
==============
4
SCHEDULE 5.8
SUBSIDIARIES
------------------------------------------------------ ---------------- ---------------------------------------------------
Subsidiary State Owner
------------------------------------------------------ ---------------- ---------------------------------------------------
ACMC, Inc. CO Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
AII Services, Inc. KS Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Xxxx Arundel Apple Holding Corporation MD Xxxxxxxx'x International, Inc. (89%)
Xxxxx Xxxxxxx (10%)
Xxxx Xxxxx (1%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Apple American Limited Partnership of Minnesota MN Applebee's of Minnesota, Inc. (25%LP interest);
Gourmet Systems of Minnesota, Inc. (75%GP
interest)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's Beverage, Inc. TX Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Xxxxxxxx'x Neighborhood Grill & Bar of Georgia, Inc. GA Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's Northeast, Inc. (formerly Pub Ventures of MA Xxxxxxxx'x International, Inc. (100%)
New England, Inc.) (Currently d/b/a as Gourmet
Systems of Main, Inc. in State of Maine)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Michigan, Inc. MI Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Minnesota, Inc. MN Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of New Mexico, Inc. NM Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of New York, Inc. NY Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Nevada, Inc. NV Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Pennsylvania, Inc. PA Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Texas, Inc. TX Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Virginia, Inc. VA Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's UK, LLC KS Xxxxxxxx'x International, Inc. (Sole Member)
------------------------------------------------------ ---------------- ---------------------------------------------------
Apple Vermont Restaurants, Inc. VT Applebee's Northeast, Inc. (formerly Pub Ventures
of New England, Inc.) (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems of Arizona, Inc. AZ Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems of California, Inc. CA Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- --------------------------------------------------
Gourmet Systems of Georgia, Inc. GA Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
5
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems, Inc. MO Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems of Kansas, Inc. KS Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems of Minnesota, Inc. MN Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems of Nevada, Inc. NV Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Gourmet Systems of Tennessee, Inc. TN Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
GourmetWest of Nevada, Limited Liability Company NV Gourmet Systems of Nevada, Inc. (Managing Member)
[50%]; Applebee's of Nevada, Inc. (Non-Managing
Member) [50%]
------------------------------------------------------ ---------------- ---------------------------------------------------
Innovative Restaurant Concepts, Inc. GA RB International, Inc. (formerly Rio Bravo
International, Inc.) (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
IRC Kansas, Inc. KS Innovative Restaurant Concepts, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
RB International, Inc. (formerly Rio Bravo KS Xxxxxxxx'x International, Inc. (100%)
International, Inc.)
------------------------------------------------------ ---------------- ---------------------------------------------------
Rio Bravo Restaurant, Inc. NY RB International, Inc. (formerly Rio Bravo
International, Inc.) (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Rio Bravo Services, Inc. KS RB International, Inc. (formerly Rio Bravo
International, Inc.) (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Summit Restaurants, Inc. GA Innovative Restaurant Concepts, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
AFSS, Inc. CO Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's Michigan Services, LLC MI Applebee's of Michigan, Inc. (Sole Member)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Xxxxxxx County, Inc. MD Applebee's of Virginia, Inc. (88%)
Xxxxxx Xxxxxx (1%)
Xxxx Xxxxxxxx (1%)
Xxxxx Xxxxx (10%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of Maryland, Inc. MD Applebee's of Virginia, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Applebee's of St. Mary's County, Inc. MD Applebee's of Virginia, Inc. (83%)
Xxxxxx Xxxxxx (1%)
Xxxx Xxxxxxxx (1%)
Xxxxxx Xxxxxxxx Xxxxx Xxxxxx (15%)
------------------------------------------------------ ---------------- ---------------------------------------------------
Neighborhood Insurance, Inc. VT Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
6
------------------------------------------------------ ---------------- ---------------------------------------------------
A.I.I. Euro Services (Holland) B.V. Holland Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
AII Services - Europe, Limited England Xxxxxxxx'x International, Inc. (100%)
------------------------------------------------------ ---------------- ---------------------------------------------------
3057649 Nova Scotia Unlimited Liability Company Nova Scotia, Gourmet Systems of Tennessee, Inc. (100%)
Canada
------------------------------------------------------ ---------------- ---------------------------------------------------
7
SCHEDULE 5.16
ENVIRONMENTAL MATTERS
None
8
SCHEDULE 6.15
EXISTING INVESTMENTS
None
9
SCHEDULE 6.16
EXISTING LIENS
None
10
EXHIBIT A-1
FORM OF BORROWER'S AND GUARANTORS' COUNSEL'S OPINION
[Attached]
1
December 3, 2004
To the Administrative Agent, the Syndication Agents, the LC Issuer, the
Documentation Agents, and each of the Lenders under the hereinafter defined
Credit Agreement
c/o JPMorgan Chase Bank, N.A.
Xxx Xxxx Xxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Ladies and Gentlemen:
We have acted as counsel to Xxxxxxxx'x International, Inc., a Delaware
corporation (the "Borrower"), and the other Loan Parties in connection with the
making of loans and the extension of certain other financial accommodations by
the Lenders under the Credit Agreement to the Borrower. All terms used and not
defined herein shall have the meanings assigned to them in the Credit Agreement.
In such capacity we have examined the following agreements, instruments
and documents (collectively, the "Loan Documents"):
1. 5-Year Revolving Credit Agreement dated as of December 3, 2004,
among the Borrower, the financial institutions from time to time party thereto
as Lenders and JPMorgan Chase Bank, N.A., as Administrative Agent (the "Credit
Agreement");
2. Guaranty dated December 3, 2004 (the "Guaranty"), executed by each
of the Guarantors in favor of the Holders of Obligations (as defined therein);
and
3. [_____] Notes (collectively, the "Notes"), one payable to each of
[_________________________].
We have also examined such other corporate records of the Loan Parties,
certificates of public officials and of officers of the Loan Parties, and
agreements, instruments and other documents as we have deemed necessary in order
to render the opinions expressed below. As to questions of fact material to such
opinions, we have, when relevant facts were not independently established by us,
relied upon certificates of officers of the Borrower and the other Loan Parties
and upon the representations of the Borrower in the Credit Agreement.
We have assumed the genuineness of all signatures on all documents
examined by us, the authenticity of all documents submitted to us as originals
and the conformity to authentic originals of all documents submitted to us as
certified or photostatic copies, the legal capacity of all natural persons and
the accuracy and completeness of all corporate records made available to us by
2
the Loan Parties. We have also assumed that each party to the Loan Documents
(other than the Loan Parties) has satisfied the legal requirements applicable to
it to the extent necessary to make the Loan Documents enforceable against it.
Based upon and subject to the other paragraphs hereof, we are of the
opinions that:
a. Each Loan Party other than Apple American Limited Partnership of
Minnesota, GourmetWest of Nevada, Limited Liability Company and Applebee's
UK, LLC (i) is a corporation duly incorporated, validly existing and in good
standing under the laws of the jurisdiction of its incorporation, and (ii)
has all requisite corporate power to own or lease and operate its properties
and to carry on its business as now conducted.
b. Each of Apple American Limited Partnership of Minnesota,
GourmetWest of Nevada, Limited Liability Company and Applebee's UK, LLC (i)
is duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, and (ii) has all requisite power to
own or lease and operate its properties and to carry on its business as now
conducted.
c. The execution, delivery and performance by each Loan Party of the
Credit Agreement, the Notes, each other Loan Document to which it is or is
to be a party, are within such Loan Party's corporate powers, have been duly
authorized by all necessary corporate action, and do not (i) contravene such
Loan Party's charter or bylaws, (ii) violate any statutory law (including,
without limitation, the Securities Exchange Act of 1934 and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime Control
Act of 1970), any rule or regulation promulgated thereunder (including,
without limitation, Regulation X of the Board of Governors of the Federal
Reserve System), or any order, writ, judgment, injunction or decree known to
us, (iii) result in the breach of, or constitute a default under, any
contract, loan agreement, indenture, mortgage, deed of trust, lease or other
instrument known to us (including, without limitation, the agreements listed
as material contracts on the Borrower's Annual Report on Form 10-K for the
fiscal year ended December 31, 2003, filed with the Securities and Exchange
Commission (the "Material Contracts")) to be binding on any Loan Party or
any of its properties or (iv) result in or require the creation or
imposition of any Lien upon or with respect to any of the properties of any
Loan Party under any such contract, loan agreement, indenture, mortgage,
deed of trust, lease or other instrument.
d. No authorization or approval or other action by, and no notice to
or filing with, any governmental authority or regulatory body is required
for (i) the due execution, delivery, recordation, filing or performance by
any Loan Party of the Credit Agreement, the Notes, any other Loan Document
to which it is or is to be a party, or (ii) the exercise by the
Administrative Agent or any Lender Party of its rights under the Loan
Documents.
e. The Credit Agreement and each other Loan Document have been duly
executed and delivered by each Loan Party thereto.
f. To the best of our knowledge, there is no action, suit,
investigation, litigation or proceeding against any Loan Party, including
any action under the Environmental Laws, pending or threatened before any
3
court, governmental agency or arbitrator that (i) could reasonably be
expected to have a Material Adverse Effect or (ii) purports to adversely
affect the legality, validity or enforceability of the Credit Agreement, any
other Loan Document or the consummation of the transactions contemplated
thereby.
g. None of Material Contracts contains any provision that requires
the consent of the other parties thereto for the transactions contemplated
under the Loan Documents.
h. Neither any Loan Party nor any of their respective Subsidiaries is
an "investment company," or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company," as such terms are
defined in the Investment Company Act of 1940, as amended. Neither the
making of any Advances, nor the issuance of any Facility LCs, nor the
application of the proceeds or repayment thereof by the Borrower, nor the
consummation of the other transactions contemplated hereby, will violate any
provision of such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
i. Although the Loan Documents contain choice of law provisions that
state that they shall be governed by and construed in accordance with the
laws of the State of Illinois, in the event that the laws of the State of
Kansas (the "State") were applied to govern any Loan Document, each such
Loan Document would be the legal, valid and binding obligation of the Loan
Parties party thereto, enforceable against each such Loan Party in
accordance with its terms.
j. All taxes and governmental fees and charges, the payment of which
are required in the State in connection with the execution, delivery and
recording of the Loan Documents have been paid.
k. Neither any Agent nor any Lender is required to qualify to do
business in the State or to comply with the requirements of any foreign
lender statute in order to carry out the transactions contemplated by the
Credit Agreement or the other transactions contemplated by the Loan
Documents or to avail themselves of the remedies provided thereby, nor will
any such Agent or Lender be subject to taxation in the State, in each case
solely as the result of the performance of the transactions contemplated by
the Credit Agreement and such other transactions.
l. The choice of Illinois law to govern the Loan Documents in which
such choice of law is stipulated is a valid and effective choice of law
under the laws of the State and under the State's principles of conflicts of
laws, a federal court sitting in its diversity capacity in the State or any
of the State's state courts will apply Illinois law in an action or
proceeding arising out of any Loan Document to the extent that the parties
thereto have agreed to its application therein, except to the extent that
the State's or federal procedural or remedial law shall apply.
The opinions set forth above are subject to the following qualifications:
4
(1) Our opinion in the last sentence of paragraph 8 above is subject to the
effect of any applicable bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium or similar laws affecting creditors'
rights generally.
(2) Our opinion in the last sentence of paragraph 8 above is subject to the
effect of general principles of equity, including without limitation,
concepts of materiality, reasonableness, good faith and fair dealing
(regardless of whether considered in a proceeding in equity or at law).
(3) We express no opinion herein as to (i) the availability of specific
performance or other equitable remedies, (ii) the enforceability of
waivers by parties of their respective rights and remedies under law,
(iii) the enforceability of provisions purporting to grant a party
conclusive rights of determination, (iv) the enforceability of any
prepayment or yield maintenance premium or penalty, to the extent that
a court of competent jurisdiction may hold it to be a penalty or an
unreasonable approximation of the Lender's actual loss or damages as a
result of prepayment of indebtedness under the Loan Documents, whether
by acceleration, voluntary prepayment or otherwise, (v) the
enforceability of any provisions that limit the effect of any
applicable statutes of limitation, (vi) the enforceability of any
provisions providing for indemnification insofar as indemnification
would violate public policy, (vii) title to, or the perfection or
priority of any security interests or liens on, any property, or (viii)
the enforceability of any provision for the collection of attorneys'
fees.
The phrases "known to us" and "to our knowledge" as used herein mean the
current actual knowledge of the attorneys of this firm who have devoted
substantive attention to matters for the Loan Parties in connection with the
Loan Documents. Except to the extent expressly set forth herein, we have not
undertaken any independent investigation to determine the existence or absence
of any fact, and no inference as to our knowledge of the existence or absence of
any fact should be drawn from our representation of the Loan Parties or the
rendering of the opinions set forth above.
Our opinions are limited to the law of the State of Kansas, the Federal law
of the United States of America, and the Delaware General Corporation Law, and
we do not express any opinion herein concerning any other law.
We disclaim any responsibility to update or supplement this opinion with
respect to any changes in law or future events affecting the transactions
contemplated by the Loan Documents. This opinion letter may be relied upon by
you and any other Lenders who are from time to time party to the Credit
Agreement only in connection with the transactions provided for in the Loan
Documents and may not be used or relied upon by you or such other Lenders for
any other purpose or by any other person for any purpose whatsoever, without in
each instance our prior written consent.
Very truly yours,
5
2
1
EXHIBIT A-2
FORM OF ADMINISTRATIVE AGENT'S COUNSEL'S OPINION
December 3, 2004
To each of the Lenders party to
the Credit Agreement referred to
below and to JPMorgan Chase Bank, N.A., as
Administrative Agent
and to
X.X. Xxxxxx Securities Inc., as Sole Lead
Arranger and Sole Book Runner
Re: Xxxxxxxx'x International, Inc.
Ladies and Gentlemen:
We have acted as counsel to JPMorgan Chase Bank, N.A., as
Administrative Agent, in connection with that certain 5-Year Revolving Credit
Agreement, dated as of December 3, 2004 (the "Credit Agreement"), among
Xxxxxxxx'x International, Inc., a Delaware corporation (the "Borrower"), the
financial institutions from time to time party thereto as Lenders and JPMorgan
Chase Bank, N.A., as Administrative Agent. Capitalized terms used herein and not
otherwise defined are used as defined in the Credit Agreement.
In connection with this opinion, we have examined originals
or copies, certified or otherwise, of the following documents, each dated as of
the date hereof:
(a) the Credit Agreement;
(b) the Notes executed by the Borrower to the order of each
of [________________]; and
(c) the Guaranty executed by the Initial Guarantors (as such
term is defined in the Guaranty).
The documents described in items (a) through (c) above are referred to
hereinafter as the "Loan Documents," and the Borrower and the Initial Guarantors
are referred to hereinafter as the "Loan Parties." In our examination of the
Loan Documents, we have assumed the authenticity of all such documents submitted
to us as originals, the conformity to authentic originals of all such documents
1
submitted to us as copies, the genuineness of all signatures, the due
authorization, execution and delivery by each of the parties executing such
documents and such other legal and factual assumptions as are described in the
Opinion.
In rendering the opinions set forth herein, we have assumed that:
(i) each of the Loan Parties is duly organized, validly
existing and in good standing under the laws of its respective jurisdiction of
organization and has the requisite corporate, limited liability company or
partnership power (as applicable) to enter into the Loan Documents to which it
is a party; and the execution and delivery of each of the Loan Documents has
been duly authorized by all necessary corporate, limited liability company or
partnership action (as applicable) and proceedings on the part of each Loan
Party party thereto;
(ii) the execution, delivery and performance of the Loan
Documents by the Loan Parties do not require any action by any governmental
agency or private party except for those which have been obtained, do not
violate any provision of law applicable to the Loan Parties, and do not conflict
with, result in a breach of or constitute a default under the charter or other
organizational document, code of regulations or by-laws of any Loan Party or any
indenture, agreement, or other instrument to which any Loan Party is a party or
by which any Loan Party is bound;
(iii) each Loan Party has duly executed and delivered each of the
Loan Documents to which it is a party; and
(iv) the Credit Agreement constitutes the valid and binding
obligation of each party thereto other than the Loan Parties, enforceable
against such parties in accordance with its terms.
Based upon the foregoing assumptions and examination of documents
and upon such investigation as we have deemed necessary, and subject to the
qualifications set forth in subparagraphs (a) through (d) below, we are of the
opinion as of the date hereof that the Loan Documents constitute the legal,
valid and binding obligations of the respective Loan Parties party thereto
enforceable against such respective Loan Parties in accordance with their
respective terms.
Our opinion is expressly qualified as follows:
(a) Our opinion is subject to the effect of applicable
bankruptcy, insolvency, reorganization, fraudulent conveyance and other laws
affecting creditors' rights generally and to the effect of general equitable
principles (whether considered in a proceeding in equity or at law). In applying
such principles, a court, among other things, might not allow a creditor to
accelerate maturity of a debt upon the occurrence of a default deemed immaterial
or for non-credit reasons or might decline to order a debtor to perform
covenants. Such principles applied by a court might include a requirement that a
creditor act with reasonableness and in good faith. Furthermore, a court may
refuse to enforce a covenant or any provision providing for indemnification if
and to the extent that it deems such covenant or indemnification provision to be
violative of applicable public policy.
2
(b) We render no opinion with respect to the enforceability of
Section 12.2.3 of the Credit Agreement.
(c) Our opinions expressed are limited to the law of the State of
Illinois and the federal laws of the United States, and we do not express any
opinion herein concerning any other laws.
(d) We express no opinion as to the effect of the compliance or
noncompliance by any Agent or any of the Lenders with any federal or state laws
or regulations applicable to any Agent or any of the Lenders because of any such
entity's legal or regulatory status or the nature of such entity's business or
requiring any Agent or any of the Lenders to qualify to conduct business in any
jurisdiction.
The opinions expressed herein are being delivered to you as of the
date hereof and are solely for your benefit in connection with the transactions
contemplated in the Credit Agreement and, except as set forth above, may not be
relied on in any manner or for any purpose by any other person, nor any copies
published, communicated or otherwise made available in whole or in part to any
other person or entity without our express prior written consent, except that
you may furnish copies thereof (1) to any party that becomes a Lender after the
date hereof pursuant to the Credit Agreement and to a prospective assignee of
the Loans, (2) to your independent auditors and attorneys, (3) upon the request
of any state or federal authority or official having regulatory jurisdiction
over you, and (4) pursuant to order or legal process of any court or
governmental agency or in any legal proceedings involving the Credit Agreement
or this opinion. We do not express any opinion, either implicitly or otherwise,
on any issue not expressly addressed above. The opinions expressed above are
based solely on factual matters in existence as of the date hereof and laws and
regulations in effect on the date hereof. We assume no obligation to revise or
supplement this opinion should such factual matters change or should such laws
or regulations be changed by legislative or regulatory action, judicial decision
or otherwise.
Very truly yours,
3
EXHIBIT B
COMPLIANCE CERTIFICATE
To: The Lenders parties to the
Credit Agreement described below
This Compliance Certificate is furnished pursuant to that certain
5-Year Revolving Credit Agreement dated as of December 3, 2004 (as amended,
modified, renewed or extended from time to time, the "Agreement") among
Xxxxxxxx'x International, Inc., a Delaware corporation (the "Borrower"), the
lenders party thereto, and JPMorgan Chase Bank, N.A., as Administrative Agent
for the Lenders. Unless otherwise defined herein, capitalized terms used in this
Compliance Certificate have the meanings ascribed thereto in the Agreement.
THE UNDERSIGNED HEREBY CERTIFIES THAT:
1. I am the duly elected ________________________ of the Borrower;
2. I have reviewed the terms of the Agreement and I have made, or
have caused to be made under my supervision, a detailed review of the
transactions and conditions of the Borrower and its Subsidiaries during the
accounting period covered by the attached financial statements;
3. The examinations described in paragraph 2 did not disclose, and
I have no knowledge of, the existence of any condition or event which
constitutes a Default or Unmatured Default during or at the end of the
accounting period covered by the attached financial statements or as of the date
of this Certificate, except as set forth below; and
4. Schedule I attached hereto sets forth financial data and
computations evidencing the Borrower's compliance with certain covenants of the
Agreement, all of which data and computations are true, complete and correct and
have been computed in accordance with the terms and conditions of the Agreement.
5. Schedule II attached hereto sets forth the determination of the
Applicable Margin and the Applicable Fee Rate commencing on the fifth day
following the delivery hereof.
6. Schedule III attached hereto sets forth the various reports and
deliveries which are required at this time under Section 6.1 of the Agreement
and the status of compliance.
Described below are the exceptions, if any, to paragraph 3 by
listing, in detail, the nature of the condition or event, the period during
which it has existed and the action which the Borrower has taken, is taking, or
proposes to take with respect to each such condition or event:
1
The foregoing certifications, together with the computations set
forth in Schedule I and Schedule II hereto and the financial statements
delivered with this Certificate in support hereof, are made and delivered this
day of , .
By:______________________________________
Name:
Title:
2
Xxxxxxxx'x International, Inc.
Schedule I to Compliance Certificate
Financial Covenant Calculations
Quarter Ended _____________________
(Dollars in thousands)
6.21.1 MAXIMUM LEVERAGE RATIO
Consolidated Funded Indebtedness
==========================
EBITDA (last four fiscal quarters)
==========================
Consolidated Funded Indebtedness to EBITDA to 1.0
==========================
Maximum Consolidated Funded Indebtedness to EBITDA 2.0 to 1.0
==========================
Compliant with Section 6.21.1 YES/NO
6.21.2 MINIMUM FIXED CHARGE COVERAGE RATIO
EBITR (last four fiscal quarters)
==========================
Consolidated Interest Expense (last four fiscal quarters)
Consolidated Rentals (last four fiscal quarters)
==========================
Fixed Charge Coverage Ratio to 1.0
==========================
Minimum Fixed Charge Coverage Ratio 4.0 to 1.0
==========================
Compliant with Section 6.21.2 YES/NO
6.21.3 MAXIMUM RATIO OF INDEBTEDNESS TO TOTAL CAPITALIZATION
Consolidated Indebtedness
==========================
Consolidated Total Capitalization
==========================
Ratio of Consolidated Indebtedness to
Consolidated Total Capitalization to 1.0
==========================
Maximum Consolidated Indebtedness to
Consolidated Total Capitalization 0.50 to 1.0
==========================
Compliant with Section 6.21.3
--------------------------
YES/NO
3
6.14 ASSET SALES
Notes Receivable
(Max. of $25 MM or 25% of purchase price) -
--------------------------
Other Sales Permitted under 6.14(iii) $ -
==========================
Maximum Limits
Annual: Maximum of 10% of Consolidated Total Assets (preceding year)
Actual:
==========================
Lifetime: Maximum of 30% of Consolidated Total Assets (preceding year)
Actual:
==========================
Any other asset sales other than those permitted
in Section 6.14 (i) and (ii) YES/NO
6.15 INVESTMENTS AND ACQUISITIONS
(vii) Acquisition Purchase Price
Cash
Value of Stock (excluding stock repurchased
prior to closing) -
Assumed liabilities/Other -
Indebtedness
------------------
Total Purchase Price
==========================
Total Acquisition Limit - Annual $ 200,000
==========================
(vii) Loans to Franchisees or Reimbursement Obligations from
Franchisees in connection (a) with Master Agreement and Limited
Guaranty dated as of June 1, 2004, executed by the Borrower in
favor of Citicorp Leasing, Inc. or (b) other similar programs
Maximum Limit: $ 25,000
==========================
(ix) Other Investments
Investments in Joint Ventures $ -
Investments in Franchisees -
Investments in Other Persons
Loans and advances to employees
Loans and advances to Other Persons -
------------------
Total Other Investments $ -
==========================
Maximum Limit: $ 25,000
==========================
4
6.10 GUARANTORS
---------------------------------------------------------------------------------------- -----------------------------
Signatory to
Name of Domestic Subsidiaries and Jurisdiction of Formation Guaranty
---------------------------------------------------------------------------------------- -----------------------------
---------------------------------------------------------------------------------------- -----------------------------
5
Xxxxxxxx'x International, Inc.
Schedule II to Compliance Certificate
Financial Covenant Calculations
Quarter Ended _____________________
(Dollars in thousands)
------------------------------------------------------------------------------------------------
Applicable Margin
------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------
Applicable Fee Rate
------------------------------------------------------------------------------------------------
--------------------------------------- --------------------------------
LEVERAGE RATIO
--------------------------------------- --------------------------------
LEVEL I STATUS <=0.50
LEVEL II STATUS <=1.00 and > 0.50
LEVEL III STATUS <=1.50 and > 1.00
LEVEL IV STATUS >1.50
--------------------------------------- --------------------------------
--------------------------- ------------------------ --------------------- ---------------------- --------------------
APPLICABLE LEVEL I LEVEL II LEVEL III LEVEL IV
MARGIN STATUS STATUS STATUS STATUS
--------------------------- ------------------------ --------------------- ---------------------- --------------------
Eurodollar Rate 0.50% 0.625% 0.75% .875%
--------------------------- ------------------------ --------------------- ---------------------- --------------------
ABR 0.00% 0.00% 0.00% 0.00%
--------------------------- ------------------------ --------------------- ---------------------- --------------------
--------------------------- ------------------------ --------------------- ---------------------- --------------------
APPLICABLE XXXXX X XXXXX XX XXXXX XXX XXXXX XX
FEE RATE STATUS STATUS STATUS STATUS
--------------------------- ------------------------ --------------------- ---------------------- --------------------
Commitment Fee 0.10% 0.125% 0.15% 0.175%
--------------------------- ------------------------ --------------------- ---------------------- --------------------
Letter of Credit Fee 0.50% 0.625% 0.75% 0.875%
--------------------------- ------------------------ --------------------- ---------------------- --------------------
1
SCHEDULE III TO COMPLIANCE CERTIFICATE
Reports and Deliveries Currently Due
1
EXHIBIT C
ASSIGNMENT AGREEMENT
This Assignment Agreement (this "Assignment Agreement") between
____________________ (the "Assignor") and ____________________ (the "Assignee")
is dated as of __________, 20__. The parties hereto agree as follows:
1. PRELIMINARY STATEMENT. The Assignor is a party to a Credit Agreement
(which, as it may be amended, modified, renewed or extended from time
to time is herein called the "Credit Agreement") described in Item 1 of
Schedule 1 attached hereto ("Schedule 1"). Capitalized terms used
herein and not otherwise defined herein shall have the meanings
attributed to them in the Credit Agreement.
2. ASSIGNMENT AND ASSUMPTION. The Assignor hereby sells and assigns to the
Assignee, and the Assignee hereby purchases and assumes from the
Assignor, an interest in and to the Assignor's rights and obligations
under the Credit Agreement and the other Loan Documents, such that
after giving effect to such assignment the Assignee shall have
purchased pursuant to this Assignment Agreement the percentage interest
specified in Item 3 of Schedule 1 of all outstanding rights and
obligations under the Credit Agreement and the other Loan Documents
relating to the facilities listed in Item 3 of Schedule 1. The
Commitment (or Outstanding Credit Exposure, if the applicable
Commitment has been terminated) purchased by the Assignee hereunder is
set forth in Item 4 of Schedule 1.
3. EFFECTIVE DATE. The effective date of this Assignment Agreement (the
"Effective Date") shall be the later of the date specified in Item 5 of
Schedule 1 or two (2) Business Days (or such shorter period agreed to
by the Administrative Agent) after this Assignment Agreement, together
with any consents required under the Credit Agreement, are delivered to
the Administrative Agent. In no event will the Effective Date occur if
the payments required to be made by the Assignee to the Assignor on the
Effective Date are not made on the proposed Effective Date.
4. PAYMENT OBLIGATIONS. In consideration for the sale and assignment of
the Commitment and/or Outstanding Credit Exposure hereunder, the
Assignee shall pay the Assignor, on the Effective Date, the amount
agreed to by the Assignor and the Assignee. On and after the Effective
Date, the Assignee shall be entitled to receive from the Administrative
Agent all payments of principal, interest and fees with respect to the
interest assigned hereby. The Assignee will promptly remit to the
Assignor any interest on Outstanding Credit Exposure and fees received
from the Administrative Agent which relate to the portion of the
Commitment or Outstanding Credit Exposure assigned to the Assignee
hereunder for periods prior to the Effective Date and not previously
paid by the Assignee to the Assignor. In the event that either party
hereto receives any payment to which the other party hereto is entitled
under this Assignment Agreement, then the party receiving such amount
shall promptly remit it to the other party hereto.
1
5. RECORDATION FEE. The Assignor and Assignee each agree to pay one-half
of the recordation fee required to be paid to the Administrative Agent
in connection with this Assignment Agreement unless otherwise specified
in Item 6 of Schedule 1.
6. REPRESENTATIONS OF THE ASSIGNOR; LIMITATIONS ON THE ASSIGNOR'S
LIABILITY. The Assignor represents and warrants that (i) it is the
legal and beneficial owner of the interest being assigned by it
hereunder, (ii) such interest is free and clear of any adverse claim
created by the Assignor and (iii) the execution and delivery of this
Assignment Agreement by the Assignor is duly authorized. It is
understood and agreed that the assignment and assumption hereunder are
made without recourse to the Assignor and that the Assignor makes no
other representation or warranty of any kind to the Assignee. Neither
the Assignor nor any of its officers, directors, employees, agents or
attorneys shall be responsible for (i) the due execution, legality,
validity, enforceability, genuineness, sufficiency or collectability of
any Loan Document, including, without limitation, documents granting
the Assignor and the other Lenders a security interest in assets of the
Borrower or any guarantor, (ii) any representation, warranty or
statement made in or in connection with any of the Loan Documents,
(iii) the financial condition or creditworthiness of the Borrower or
any guarantor, (iv) the performance of or compliance with any of the
terms or provisions of any of the Loan Documents, (v) inspecting any of
the property, books or records of the Borrower, (vi) the validity,
enforceability, perfection, priority, condition, value or sufficiency
of any collateral securing or purporting to secure the Loans or (vii)
any mistake, error of judgment, or action taken or omitted to be taken
in connection with the Loans or the Loan Documents.
7. REPRESENTATIONS AND UNDERTAKINGS OF THE ASSIGNEE. The Assignee (i)
confirms that it has received a copy of the Credit Agreement, together
with copies of the financial statements requested by the Assignee and
such other documents and information as it has deemed appropriate to
make its own credit analysis and decision to enter into this Assignment
Agreement, (ii) agrees that it will, independently and without reliance
upon any Agent, the Arranger, the Assignor or any other Lender and
based on such documents and information at it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking action under the Loan Documents, (iii) appoints and authorizes
each Agent to take such action as agent on its behalf and to exercise
such powers under the Loan Documents as are delegated to such Agent by
the terms thereof, together with such powers as are reasonably
incidental thereto, (iv) confirms that the execution and delivery of
this Assignment Agreement by the Assignee is duly authorized, (v)
agrees that it will perform in accordance with their terms all of the
obligations which by the terms of the Loan Documents are required to be
performed by it as a Lender, (vi) agrees that its payment instructions
and notice instructions are as set forth in the attachment to Schedule
1, (vii) confirms that none of the funds, monies, assets or other
consideration being used to make the purchase and assumption hereunder
are "plan assets" as defined under ERISA and that its rights, benefits
and interests in and under the Loan Documents will not be "plan assets"
under ERISA, (viii) agrees to indemnify and hold the Assignor harmless
against all losses, costs and expenses (including, but not limited to,
reasonable attorneys' fees) and liabilities incurred by the Assignor in
connection with or arising in any manner from the Assignee's
non-performance of the obligations assumed under this Assignment
Agreement, and (ix) if applicable, attaches the forms prescribed by the
2
Internal Revenue Service of the United States certifying that the
Assignee is entitled to receive payments under the Loan Documents
without deduction or withholding of any United States federal income
taxes.
8. GOVERNING LAW. This Assignment Agreement shall be governed by the
internal law, including 735 ILCS 105/5-1 et seq., but otherwise without
regard to the law of conflicts, of the State of Illinois.
9. NOTICES. Notices shall be given under this Assignment Agreement in the
manner set forth in the Credit Agreement. For the purpose hereof, the
addresses of the parties hereto (until notice of a change is delivered)
shall be the addresses set forth in the attachment to Schedule 1.
10. COUNTERPARTS; DELIVERY BY FACSIMILE. This Assignment Agreement may be
executed in counterparts. Transmission by facsimile of an executed
counterpart of this Assignment Agreement shall be deemed to constitute
due and sufficient delivery of such counterpart and such facsimile
shall be deemed to be an original counterpart of this Assignment
Agreement.
IN WITNESS WHEREOF, the duly authorized officers of the parties hereto
have executed this Assignment Agreement by executing Schedule 1 hereto as of the
date first above written.
3
SCHEDULE I
to Assignment Agreement
1. Description and Date of Credit Agreement: 5-Year Revolving Credit Agreement,
dated December 3, 2004, among Xxxxxxxx'x International, Inc., a Delaware
corporation (the "Borrower"), the Lenders named therein, and JPMorgan Chase
Bank, N.A., as the Administrative Agent, as the same may be amended, restated,
supplemented or otherwise modified from time to time
2. Date of Assignment Agreement: _________, 200_
3. Percentage (As of Date of Item 2 above):
Revolving Credit
a. Assignee's percentage of Revolving
Credit Facility purchased under the
Assignment Agreement* -----%
4. Assignee's Commitment (or Outstanding
Credit Exposure with respect to terminated
Commitments) purchased hereunder: $___________
5. Proposed Effective Date: __________
6. Non-standard Recordation Fee
Arrangement N/A**
[Assignor/Assignee to pay
100% of fee]
4
Accepted and Agreed:
[NAME OF ASSIGNOR] [NAME OF ASSIGNEE]
By:_______________________________ By:______________________________________
Title: Title:
ACCEPTED AND CONSENTED TO*** ACCEPTED AND CONSENTED TO
BY BY
XXXXXXXX'X INTERNATIONAL, INC. JPMORGAN CHASE BANK, N.A., as
Administrative Agent
By:_______________________________ By:______________________________________
Title: Title:
* Percentage taken to 10 decimal places
** If fee is split 50-50, pick N/A as option
*** Delete if not required by Credit Agreement
5
Attachment to SCHEDULE 1 to ASSIGNMENT AGREEMENT
ADMINISTRATIVE INFORMATION SHEET
Attach Assignor's Administrative Information Sheet, which must
include notice addresses for the Assignor and the Assignee
(Sample form shown below)
ASSIGNOR INFORMATION
Contact:
Name: Telephone No.:
Fax No.: Telex No.:
Answerback:
Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
Address for Notices for Assignor:
ASSIGNEE INFORMATION
Credit Contact:
Name: Telephone No.:
Fax No.: Telex No.:
Answerback:
Key Operations Contacts:
Booking Installation: Booking Installation:
Name: Name:
Telephone No.: Telephone No.:
Fax No.: Fax No.:
Telex No.: Telex No.:
Answerback: Answerback:
6
Payment Information:
Name & ABA # of Destination Bank:
Account Name & Number for Wire Transfer:
Other Instructions:
Address for Notices for Assignee:
7
JPMORGAN CHASE BANK, N.A. INFORMATION
Assignee will be called promptly upon receipt of the signed agreement.
Initial Funding Contact: Subsequent Operations Contact:
----------------------- -----------------------------
Name: Name:
Telephone No.: (312) Telephone No.: (312)
Fax No.: (312) Fax No.: (312)
JPMorgan Chase Bank, N.A. Telex No.:
190201 (Answerback: FNBC UT)
Initial Funding Standards:
Libor - Fund 2 days after rates are set.
JPMorgan Chase Bank, N.A. JPMorgan Chase Bank, N.A. ABA # 000000000
Instructions: LS2 Incoming Account # ____________
Ref: Xxxxxxxx'x International, Inc.
Address for Notices for JPMorgan 0 Xxxx Xxx Xxxxx, Xxxxxxx, XX 00000
Chase Bank, N.A. Attn: Agency Compliance Division,
Suite IL1-0353
Fax No. (000) 000-0000 or (000) 000-0000
8
EXHIBIT D
LOAN/CREDIT RELATED MONEY TRANSFER INSTRUCTION
To: JPMorgan Chase Bank, N.A.,
as Administrative Agent (the "Administrative Agent")
under the Credit Agreement Described Below.
Re: 5-Year Revolving Credit Agreement, dated December 3,
2004 (as the same may be amended, restated, supplemented
or otherwise modified, the "Credit Agreement"), among
Xxxxxxxx'x International, Inc., a Delaware corporation
(the "Borrower"), the Lenders named therein, and the
Administrative Agent.
Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned thereto in the Credit Agreement.
The Administrative Agent is specifically authorized and directed to act
upon the following standing money transfer instructions with respect to the
proceeds of Advances or other extensions of credit from time to time until
receipt by the Administrative Agent of a specific written revocation of such
instructions by the Borrower, provided, however, that the Administrative Agent
may otherwise transfer funds as hereafter directed in writing by the Borrower in
accordance with Section 13.1 of the Credit Agreement or based on any telephonic
notice made in accordance with Section 2.15 of the Credit Agreement.
Facility Identification Number(s):
Customer/Account Name: Xxxxxxxx'x International, Inc.
Transfer Funds To: JPMorgan Chase Bank, N.A., Chicago
For Account No.: 0000000
Reference/Attention To:
Authorized Officer (Customer Representative): Date:
(Please Print):________________________ Signature___________________________
Bank Officer Name______________________ Date:_______________________________
(Please Print)_________________________ Signature___________________________
(Deliver Completed Form to Credit Support Staff For Immediate Processing)
EXHIBIT E
NOTE
[Date]
Xxxxxxxx'x International, Inc., a Delaware corporation (the "Borrower")
promises to pay to the order of ____________________________________ (the
"Lender") the aggregate unpaid principal amount of all Loans made by the Lender
to the Borrower pursuant to Article II of the Agreement (as hereinafter
defined), in immediately available funds at the main office of JPMorgan Chase
Bank, N.A. in Chicago, Illinois, as Administrative Agent, together with interest
on the unpaid principal amount hereof at the rates and on the dates set forth in
the Agreement. The Borrower shall pay the principal of and accrued and unpaid
interest on the Loans in full on the Facility Termination Date.
The Lender shall, and is hereby authorized to, record on the schedule
attached hereto, or to otherwise record in accordance with its usual practice,
the date and amount of each Loan and the date and amount of each principal
payment hereunder.
This Note is one of the Notes issued pursuant to, and is entitled to
the benefits of, the 5-Year Revolving Credit Agreement dated as of December 3,
2004 (which, as it may be amended, restated, supplemented or otherwise modified
and in effect from time to time, is herein called the "Agreement"), among the
Borrower, the lenders party thereto, including the Lender, and JPMorgan Chase
Bank, N.A., as Administrative Agent, to which Agreement reference is hereby made
for a statement of the terms and conditions governing this Note, including the
terms and conditions under which this Note may be prepaid or its maturity date
accelerated. Capitalized terms used herein and not otherwise defined herein are
used with the meanings attributed to them in the Agreement.
The Borrower hereby waives presentment, demand, protest and any notice
of any kind. No failure to exercise and no delay in exercising, any rights
hereunder on the part of the holder hereof shall operate as a waiver of such
rights.
This Note shall be governed by and construed in accordance with the
internal laws of the State of Illinois, but giving effect to applicable federal
laws.
XXXXXXXX'X INTERNATIONAL, INC.
By:/s/___________________________________
Print Name:
Title:
SCHEDULE OF LOANS AND PAYMENTS
OF PRINCIPAL TO NOTE
DATED ____________________
Principal Maturity Principal
Amount of of Interest Amount Unpaid
Date Loan Period Paid Balance
---- ---- ------ ---- -------
EXHIBIT F
LIST OF CLOSING DOCUMENTS
$ 150,000,000
CREDIT FACILITIES
TO
XXXXXXXX'X INTERNATIONAL, INC.
December 3, 2004
LIST OF CLOSING DOCUMENTS1
A. LOAN DOCUMENTS
1. 1. 5-Year Revolving Credit Agreement (the "Credit Agreement") by and
among Xxxxxxxx'x International, Inc., a Delaware corporation (the
"Borrower"), the institutions from time to time parties thereto as
lenders (the "Lenders") and JPMorgan Chase Bank, N.A., in its capacity
as contractual representative (the "Administrative Agent"), evidencing
a $150,000,000 5-year revolving credit facility to the Borrower from
the Lenders.
EXHIBITS
EXHIBIT A -- Form of Borrower's Counsel's Opinion
EXHIBIT B -- Form of Compliance Certificate
EXHIBIT C -- Form of Assignment Agreement
EXHIBIT D -- Form of Loan/Credit Related Money Transfer Instruction
EXHIBIT E -- Form of Promissory Note
EXHIBIT F -- List of Closing Documents
EXHIBIT G -- Form of Designation Agreement
EXHIBIT H -- Form of Guaranty
EXHIBIT I -- Form of Commitment and Acceptance
---------------------------------
1 Capitalized terms used herein and not defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
Bold/italicized documents to be prepared and/or provided by the
Borrower or the Borrower's counsel.
SCHEDULES
PRICING SCHEDULE
COMMITMENT SCHEDULE
SCHEDULE 2.21 Existing Letters of Credit
SCHEDULE 5.8 Subsidiaries
SCHEDULE 5.16 Environmental Matters
SCHEDULE 6.15 Existing Investments
SCHEDULE 6.16 Existing Liens
2. Guaranty (the "Guaranty") executed by each of the Guarantors,
constituting all of Domestic Subsidiaries of the Borrower identified on
Appendix A attached hereto, in favor of the Administrative Agent.
3. Notes executed by the Borrower in favor of each of the Lenders, if any,
which has requested a note pursuant to Section 2.14 of the Credit
Agreement.
B. CORPORATE DOCUMENTS
4. Certificates of the Secretary or Assistant Secretary of the Borrower
and each of the Guarantors identified on Appendix A attached hereto
certifying (i) the Articles or Certificates of Incorporation or
comparable charter documents (certified, only in the case of the
Borrower, as of a recent date by the appropriate governmental officer
in its jurisdiction of incorporation and attached thereto) as in effect
on the date of such certification, (ii) the By-Laws or comparable
governance documents (attached thereto) of the Borrower and each such
Guarantor as in effect on the date of such certification, (iii)
resolutions of the Board of Directors (or other similar governing body)
of the Borrower and each such Guarantor authorizing, inter alia, the
execution, delivery and performance of each Loan Document to which it
is a party, and (iv) the names and true signatures of the incumbent
officers of the Borrower and each such Guarantor authorized to sign the
Loan Documents to which it is a party and, in the case of the Borrower,
authorized to request Credit Extensions under the Credit Agreement.
5. Good Standing Certificates as of a recent date for the Borrower and
each Guarantor from the office of the appropriate governmental officer
of their respective jurisdictions of organization.
2
D. OPINIONS
6. Opinion of counsel to the Borrower and the Guarantors with respect to
the Credit Agreement, the Notes and the Guaranty.
7. Opinion of counsel to Administrative Agent with respect to
enforceability of the Credit Agreement, the Notes and the Guaranty.
E. CLOSING CERTIFICATES AND MISCELLANEOUS
8. Opening Compliance Certificate executed by the chief financial officer
or treasurer of the Borrower, showing the calculations necessary to
determine compliance with the Credit Agreement as of the Borrower's
fiscal quarter ended September 30, 2004.
9. Written Money Transfer Instructions.
10. Certificate of the chief financial officer or treasurer of the Borrower
certifying that on the closing date and initial Borrowing Date (i) no
Default or Unmatured Default has occurred and is continuing, (ii) as of
such date the representations and warranties of the Borrower contained
in the Credit Agreement are true and correct, (iii) as of such date
there has been no material adverse change in the business condition
(financial or otherwise), operations, performance, properties or
prospects of the Borrower and its Subsidiaries, considered as a whole,
from that reflected in the financial statements referred to in Section
5.4 of the Credit Agreement.
11. Payoff Letter from JPMorgan Chase Bank, N.A. (successor by merger to
Bank One, NA (Main Office Chicago)) as Administrative Agent under
Existing Credit Agreement evidencing terms and conditions for repayment
of indebtedness thereunder.
3
APPENDIX A
Guarantors
Subsidiary Name Jurisdiction of Organization
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
----------------------------------------------------------- ---------------------------------------------------------
4
EXHIBIT G
FORM OF DESIGNATION AGREEMENT
Dated __________, 20__
Reference is made to the 5-Year Revolving Credit Agreement dated
as of December 3, 2004 (as amended or otherwise modified from time to time, the
"Credit Agreement") among Xxxxxxxx'x International, Inc., a Delaware corporation
(the "Borrower"), the lenders from time to time party thereto (the "Lenders")
and JPMorgan Chase Bank, N.A., as Administrative Agent. Terms defined in the
Credit Agreement are used herein as therein defined.
_________ (the "Designating Lender"), ___________ (the "Designated
Lender"), and the Borrower agree as follows:
1. The Designating Lender hereby designates the Designated Lender, and the
Designated Lender hereby accepts such designation, as its Designated
Lender under the Credit Agreement.
2. The Designating Lender makes no representations or warranty and assumes
no responsibility with respect to the financial condition of the
Borrower or the performance or observance by the Borrower of any of its
obligations under the Credit Agreement or any other instrument or
document furnished pursuant thereto.
3. The Designated Lender (i) confirms that it has received a copy of the
Credit Agreement, together with copies of the financial statements
referred to in Article V and Article VI thereof and such other
documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Designation Agreement;
(ii) agrees that it will, independently and without reliance upon the
Administrative Agent, the Designating Lender or any other Lender and
based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not
taking any action it may be permitted to take under the Credit
Agreement; (iii) confirms that it is an Eligible Designee; (iv)
appoints and authorizes the Designating Lender as its administrative
agent and attorney-in-fact and grants the Designating Lender an
irrevocable power of attorney to receive payments made for the benefit
of the Designated Lender under the Credit Agreement and to deliver and
receive all communications and notices under the Credit Agreement, if
any, that Designated Lender is obligated to deliver or has the right to
receive thereunder; (v) acknowledges that it is subject to and bound by
the confidentiality provisions of the Credit Agreement (except as
permitted under Section 12.4 thereof); and (vi) acknowledges that the
Designating Lender retains the sole right and responsibility to vote
under the Credit Agreement, including, without limitation, the right to
approve any amendment, modification or waiver of any provision of the
Credit Agreement, and agrees that the Designated Lender shall be bound
by all such votes, approvals, amendments, modifications and waivers and
all other agreements of the Designating Lender pursuant to or in
connection with the Credit Agreement.
4. Following the execution of this Designation Agreement by the
Designating Lender, the Designated Lender and the Borrower, it will be
delivered to the Administrative Agent for acceptance and recording by
the Administrative Agent. The effective date of this Designation
Agreement shall be the date of acceptance thereof by the Administrative
Agent, unless otherwise specified on the signature page hereto (the
"Effective Date").
5. Upon such acceptance and recording by the Administrative Agent, as of
the Effective Date (a) the Designated Lender shall have the right to
make Loans as a Lender pursuant to Article II of the Credit Agreement
and the rights of a Lender related thereto and (b) the making of any
such Loans by the Designated Lender shall satisfy the obligations of
the Designating Lender under the Credit Agreement to the same extent,
and as if, such Loans were made by the Designating Lender.
6. Each party to this Designation Agreement hereby agrees that it shall
not institute against, or join any other Person in instituting against,
any Designated Lender any bankruptcy, reorganization, arrangement,
insolvency or liquidation proceeding or other proceedings under any
federal or state bankruptcy or similar law for one year and a day after
payment in full of all outstanding senior indebtedness of any
Designated Lender; provided that the Designating Lender for each
Designated Lender hereby agrees to indemnify, save and hold harmless
each other party hereto for any loss, cost, damage and expense arising
out of its inability to institute any such proceeding against such
Designated Lender. This Section 6 of the Designation Agreement shall
survive the termination of this Designation Agreement and termination
of the Credit Agreement.
7. This Designation Agreement shall be governed by, and construed in
accordance with, the internal laws (including ss.735 ILCS 105/5-1 et
seq. but otherwise without regard to the conflicts of laws provisions)
of the State of Illinois.
IN WITNESS WHEREOF, the parties have caused this Designation
Agreement to be executed by their respective officers hereunto duly authorized,
as of the date first above written.
Effective Date2:
[NAME OF DESIGNATING LENDER]
By: ____________________________________
Name: __________________________________
Title: _________________________________
[NAME OF DESIGNATED LENDER]
By: ____________________________________
Name: __________________________________
Title: _________________________________
-------------------------------
2 This date should be no earlier than the date of acceptance by the
Administrative Agent.
6
XXXXXXXX'X INTERNATIONAL, INC.
By: ____________________________________
Name: __________________________________
Title: _________________________________
Accepted and Approved this
____ day of ________, ____
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By: _______________________________
Title: ____________________________
7
EXHIBIT H
GUARANTY
THIS GUARANTY (this "Guaranty") is made as of the 3rd day of
December, 2004, by and among each of the undersigned (the "Initial Guarantors"
and along with any additional Subsidiaries of the Borrower which become parties
to this Guaranty by executing a supplement hereto in the form attached as Annex
I, the "Guarantors") in favor of the Administrative Agent, for the ratable
benefit of the Holders of Obligations (as defined below), under the Credit
Agreement referred to below.
WITNESSETH:
WHEREAS, XXXXXXXX'X INTERNATIONAL, INC., a Delaware corporation
(the "Borrower"), the institutions from time to time parties hereto as Lenders,
and JPMorgan Chase Bank, N.A., a national banking association, in its capacity
as contractual representative (the "Administrative Agent") for itself and the
other Lenders, have entered into a certain 5-Year Revolving Credit Agreement
dated as of December 3, 2004 (as the same may be amended, modified, supplemented
and/or restated, and as in effect from time to time, the "Credit Agreement"),
providing, subject to the terms and conditions thereof, for extensions of credit
and other financial accommodations to be made by the Lenders to the Borrower;
WHEREAS, it is a condition precedent to the initial extensions of
credit by the Lenders under the Credit Agreement that each of the Guarantors
(constituting all of the Subsidiaries of the Borrower required to execute this
Guaranty pursuant to Section 6.10 of the Credit Agreement) execute and deliver
this Guaranty, whereby each of the Guarantors shall guarantee the payment when
due of all "Obligations" (as defined in the Credit Agreement), including,
without limitation, all principal, interest, letter of credit reimbursement
obligations and other amounts that shall be at any time payable by the Borrower
under the Credit Agreement, the other Loan Documents, and any Financial Contract
to which any Lender or affiliate of any Lender shall be a party (each a
"Designated Financial Contract"); and
WHEREAS, in consideration of the direct and indirect financial and
other support that the Borrower has provided, and such direct and indirect
financial and other support as the Borrower may in the future provide, to the
Guarantors, and in order to induce the Lenders and the Administrative Agent to
enter into the Credit Agreement, each of the Guarantors is willing to guarantee
the obligations of the Borrower under the Credit Agreement, any Designated
Financial Contract and the other Loan Documents;
NOW, THEREFORE, in consideration of the premises and other good
and valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows:
SECTION 1. Definitions. Terms defined in the Credit Agreement and not
otherwise defined herein have, as used herein, the respective meanings provided
for therein. For purposes of this Guaranty, "Holders of Obligations" means the
holders of the Obligations from time to time and shall include (i) each Lender
and LC Issuer in respect of its Credit Extensions, (ii) the Administrative Agent
and the Lenders in respect of all other present and future obligations and
liabilities of the Borrower of every type and description arising under or in
connection with the Credit Agreement or any other Loan Document, (iii) each
indemnified party under Section 9.6 of the Credit Agreement in respect of the
obligations and liabilities of the Borrower to such Person hereunder and under
the other Loan Documents, and (iv) their respective successors, transferees and
assigns.
SECTION 2. Representations, Warranties and Covenants. Each of the
Guarantors represents and warrants (which representations and warranties shall
be deemed to have been renewed at the time of the making, conversion or
continuation of any Loan or issuance of any Facility LC) that:
(A) It is a corporation, partnership or limited liability
company duly and properly incorporated or organized, as the case may be,
validly existing and (to the extent such concept applies to such entity) in
good standing under the laws of its jurisdiction of incorporation or
organization and has all requisite authority to conduct its business in each
jurisdiction in which its business is conducted, except to the extent that
the failure to have such authority could not reasonably be expected to have
a Material Adverse Effect.
(B) It (to the extent applicable) has the power and authority
and legal right to execute and deliver this Guaranty and to perform its
obligations hereunder. The execution and delivery by each Guarantor of this
Guaranty and the performance by each of its obligations hereunder have been
duly authorized by proper proceedings, and this Guaranty constitutes a
legal, valid and binding obligation of each Guarantor, respectively,
enforceable against such Guarantor, respectively, in accordance with its
terms, except as enforceability may be limited by bankruptcy, insolvency or
similar laws affecting the enforcement of creditors' rights generally.
(C) Neither the execution and delivery by it of this
Guaranty, nor the consummation of the transactions herein contemplated, nor
compliance with the provisions hereof will (i) violate any law, rule,
regulation, order, writ, judgment, injunction, decree or award binding on it
or its articles or certificate of incorporation, limited liability company
or partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or operating agreement or other
management agreement, as the case may be, or the provisions of any
indenture, instrument or agreement to which the Borrower or any of its
Subsidiaries is a party or is subject, or by which it, or its Property, is
bound, or (ii) conflict with, or constitute a default under, or result in,
or require, the creation or imposition of any Lien in, of or on its Property
pursuant to the terms of, any such indenture, instrument or agreement. No
order, consent, adjudication, approval, license, authorization, or
validation of, or filing, recording or registration with, or exemption by,
or other action in respect of any governmental or public body or authority,
or any subdivision thereof, which has not been obtained by it, is required
to be obtained by it in connection with the execution, delivery and
performance by it of, or the legality, validity, binding effect or
enforceability against it of, this Guaranty.
2
In addition to the foregoing, each of the Guarantors
covenants that, so long as any Lender has any Commitment outstanding under
the Credit Agreement or any amount payable under the Credit Agreement or any
other Guaranteed Obligations shall remain unpaid, it will, and, if
necessary, will enable the Borrower to, fully comply with those covenants
and agreements of the Borrower applicable to such Guarantor set forth in the
Credit Agreement.
SECTION 3. The Guaranty. Each of the Guarantors hereby unconditionally
guarantees, jointly with the other Guarantors and severally, the full and
punctual payment when due (whether at stated maturity, upon acceleration or
otherwise) of the Obligations, including, without limitation, (i) the principal
of and interest on each Advance made to the Borrower pursuant to the Credit
Agreement, (ii) any Reimbursement Obligations of the Borrower, (iii) all
obligations of the Borrower owing to any Lender or any affiliate of any Lender
under any Designated Financial Contract, and (iv) all other amounts payable by
the Borrower or any of its Subsidiaries under the Credit Agreement, any
Designated Financial Contract and the other Loan Documents (all of the foregoing
being referred to collectively as the "Guaranteed Obligations"). Upon failure by
the Borrower or any of its Affiliates, as applicable, to pay punctually any such
amount, each of the Guarantors agrees that it shall forthwith on demand pay such
amount at the place and in the manner specified in the Credit Agreement, any
Designated Financial Contract or the relevant Loan Document, as the case may be.
Each of the Guarantors hereby agrees that this Guaranty is an absolute,
irrevocable and unconditional guaranty of payment and is not a guaranty of
collection.
SECTION 4. Guaranty Unconditional. The obligations of each of the
Guarantors hereunder shall be unconditional and absolute and, without limiting
the generality of the foregoing, shall not be released, discharged or otherwise
affected by:
(A) any extension, renewal, settlement, indulgence,
compromise, waiver or release of or with respect to the Guaranteed
Obligations or any part thereof or any agreement relating thereto, or with
respect to any obligation of any other guarantor of any of the Guaranteed
Obligations, whether (in any such case) by operation of law or otherwise, or
any failure or omission to enforce any right, power or remedy with respect
to the Guaranteed Obligations or any part thereof or any agreement relating
thereto, or with respect to any obligation of any other guarantor of any of
the Guaranteed Obligations;
(B) any modification or amendment of or supplement to the
Credit Agreement, any Designated Financial Contract or any other Loan
Document, including, without limitation, any such amendment which may
increase the amount of, or the interest rates applicable to, any of the
Obligations guaranteed hereby;
(C) any release, surrender, compromise, settlement, waiver,
subordination or modification, with or without consideration, of any other
guaranties with respect to the Guaranteed Obligations or any part thereof,
or any other obligation of any person or entity with respect to the
Guaranteed Obligations or any part thereof, or any nonperfection or
invalidity of any direct or indirect security for the Guaranteed
Obligations;
3
(D) any change in the corporate, partnership or other
existence, structure or ownership of the Borrower or any other guarantor of
any of the Guaranteed Obligations, or any insolvency, bankruptcy,
reorganization or other similar proceeding affecting the Borrower or any
other guarantor of the Guaranteed Obligations, or any of their respective
assets or any resulting release or discharge of any obligation of the
Borrower or any other guarantor of any of the Guaranteed Obligations;
(E) the existence of any claim, setoff or other rights which
the Guarantors may have at any time against the Borrower, any other
guarantor of any of the Guaranteed Obligations, the Administrative Agent,
any Holder of Obligations or any other Person, whether in connection
herewith or in connection with any unrelated transactions, provided that
nothing herein shall prevent the assertion of any such claim by separate
suit or compulsory counterclaim;
(F) the enforceability or validity of the Guaranteed
Obligations or any part thereof or the genuineness, enforceability or
validity of any agreement relating thereto or with respect to any collateral
securing the Guaranteed Obligations or any part thereof, or any other
invalidity or unenforceability relating to or against the Borrower or any
other guarantor of any of the Guaranteed Obligations, for any reason related
to the Credit Agreement, any Designated Financial Contract, any other Loan
Document, or any provision of applicable law or regulation purporting to
prohibit the payment by the Borrower or any other guarantor of the
Guaranteed Obligations, of any of the Guaranteed Obligations;
(G) the failure of the Administrative Agent to take any steps
to perfect and maintain any security interest in, or to preserve any rights
to, any security or collateral for the Guaranteed Obligations, if any;
(H) the election by, or on behalf of, any one or more of the
Holders of Obligations, in any proceeding instituted under Chapter 11 of
Title 11 of the United States Code (11 U.S.C. 101 et seq.) (the "Bankruptcy
Code"), of the application of Section 1111(b)(2) of the Bankruptcy Code;
(I) any borrowing or grant of a security interest by the
Borrower, as debtor-in-possession, under Section 364 of the Bankruptcy Code;
(J) the disallowance, under Section 502 of the Bankruptcy
Code, of all or any portion of the claims of any of the Holders of
Obligations or the Administrative Agent for repayment of all or any part of
the Guaranteed Obligations;
(K) the failure of any other Guarantor to sign or become
party to this Guaranty or any amendment, change, or reaffirmation hereof; or
(L) any other act or omission to act or delay of any kind by
the Borrower, any other guarantor of the Guaranteed Obligations, the
Administrative Agent, any Holder of Obligations or any other Person or any
other circumstance whatsoever which might, but for the provisions of this
Section 4, constitute a legal or equitable discharge of any Guarantor's
obligations hereunder.
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SECTION 5. Discharge Only Upon Payment In Full: Reinstatement In Certain
Circumstances. Each of the Guarantors' obligations hereunder shall remain in
full force and effect until all Guaranteed Obligations shall have been paid in
full in cash and the Commitments and all Facility LCs issued under the Credit
Agreement shall have terminated or expired. If at any time any payment of the
principal of or interest on any Advance, any Reimbursement Obligation or any
other amount payable by the Borrower or any other party under the Credit
Agreement, any Designated Financial Contract or any other Loan Document is
rescinded or must be otherwise restored or returned upon the insolvency,
bankruptcy or reorganization of the Borrower or otherwise, each of the
Guarantors' obligations hereunder with respect to such payment shall be
reinstated as though such payment had been due but not made at such time.
SECTION 6. General Waivers. Each of the Guarantors irrevocably waives
acceptance hereof, presentment, demand or action on delinquency, protest, the
benefit of any statutes of limitations and, to the fullest extent permitted by
law, any notice not provided for herein, as well as any requirement that at any
time any action be taken by any Person against the Borrower, any other guarantor
of the Guaranteed Obligations, or any other Person.
SECTION 7. Subordination of Subrogation; Subordination of Intercompany
Indebtedness.
(A) Subordination of Subrogation. Until the Guaranteed
Obligations have been indefeasibly paid in full in cash, the Guarantors (i)
shall have no right of subrogation with respect to such Guaranteed
Obligations and (ii) waive any right to enforce any remedy which the Holders
of Obligations, LC Issuers or the Administrative Agent now have or may
hereafter have against the Borrower, any endorser or any guarantor of all or
any part of the Guaranteed Obligations or any other Person, and the
Guarantors waive any benefit of, and any right to participate in, any
security or collateral given to the Holders of Obligations, the LC Issuers
and the Administrative Agent to secure the payment or performance of all or
any part of the Guaranteed Obligations or any other liability of the
Borrower to the Holders of Obligations or LC Issuers. Should any Guarantor
have the right, notwithstanding the foregoing, to exercise its subrogation
rights, each Guarantor hereby expressly and irrevocably (A) subordinates any
and all rights at law or in equity to subrogation, reimbursement,
exoneration, contribution, indemnification or set off that such Guarantor
may have to the indefeasible payment in full in cash of the Guaranteed
Obligations and (B) waives any and all defenses available to a surety,
guarantor or accommodation co-obligor until the Guaranteed Obligations are
indefeasibly paid in full in cash. Each Guarantor acknowledges and agrees
that this subordination is intended to benefit the Administrative Agent and
the Holders of Obligations and shall not limit or otherwise affect such
Guarantor's liability hereunder or the enforceability of this Guaranty, and
that the Administrative Agent, the Holders of Obligations and their
respective successors and assigns are intended third party beneficiaries of
the waivers and agreements set forth in this Section 7(a).
(B) Subordination of Intercompany Indebtedness. Each
Guarantor agrees that any and all claims of such Guarantor against the
Borrower or any other Guarantor hereunder (each an "Obligor") with respect
to any "Intercompany Indebtedness" (as hereinafter defined), any endorser,
5
obligor or any other guarantor of all or any part of the Guaranteed
Obligations, or against any of its properties shall be subordinate and
subject in right of payment to the prior payment, in full and in cash, of
all Guaranteed Obligations. Notwithstanding any right of any Guarantor to
ask, demand, xxx for, take or receive any payment from any Obligor, all
rights, liens and security interests of such Guarantor, whether now or
hereafter arising and howsoever existing, in any assets of any other Obligor
shall be and are subordinated to the rights of the Holders of Obligations
and the Administrative Agent in those assets. No Guarantor shall have any
right to possession of any such asset or to foreclose upon any such asset,
whether by judicial action or otherwise, unless and until all of the
Guaranteed Obligations (other than contingent indemnity obligations) shall
have been fully paid and satisfied (in cash) and all financing arrangements
pursuant to any Loan Document or any Designated Financial Contract have been
terminated. If all or any part of the assets of any Obligor, or the proceeds
thereof, are subject to any distribution, division or application to the
creditors of such Obligor, whether partial or complete, voluntary or
involuntary, and whether by reason of liquidation, bankruptcy, arrangement,
receivership, assignment for the benefit of creditors or any other action or
proceeding, or if the business of any such Obligor is dissolved or if
substantially all of the assets of any such Obligor are sold, then, and in
any such event (such events being herein referred to as an "Insolvency
Event"), any payment or distribution of any kind or character, either in
cash, securities or other property, which shall be payable or deliverable
upon or with respect to any indebtedness of any Obligor to any Guarantor
("Intercompany Indebtedness") shall be paid or delivered directly to the
Administrative Agent for application on any of the Guaranteed Obligations,
due or to become due, until such Guaranteed Obligations (other than
contingent indemnity obligations) shall have first been fully paid and
satisfied (in cash). Should any payment, distribution, security or
instrument or proceeds thereof be received by the applicable Guarantor upon
or with respect to the Intercompany Indebtedness after any Insolvency Event
and prior to the satisfaction of all of the Guaranteed Obligations (other
than contingent indemnity obligations) and the termination of all financing
arrangements pursuant to any Loan Document among the Borrower and the
Holders of Obligations, such Guarantor shall receive and hold the same in
trust, as trustee, for the benefit of the Holders of Obligations and shall
forthwith deliver the same to the Administrative Agent, for the benefit of
the Holders of Obligations, in precisely the form received (except for the
endorsement or assignment of the Guarantor where necessary), for application
to any of the Guaranteed Obligations, due or not due, and, until so
delivered, the same shall be held in trust by the Guarantor as the property
of the Holders of Obligations. If any such Guarantor fails to make any such
endorsement or assignment to the Administrative Agent, the Administrative
Agent or any of its officers or employees is irrevocably authorized to make
the same. Each Guarantor agrees that until the Guaranteed Obligations (other
than the contingent indemnity obligations) have been paid in full (in cash)
and satisfied and all financing arrangements pursuant to any Loan Document
among the Borrower and the Holders of Obligations have been terminated, no
Guarantor will assign or transfer to any Person (other than the
Administrative Agent) any claim any such Guarantor has or may have against
any Obligor.
6
SECTION 8. Contribution with Respect to Guaranteed Obligations.
(A) To the extent that any Guarantor shall make a payment
under this Guaranty (a "Guarantor Payment") which, taking into account all
other Guarantor Payments then previously or concurrently made by any other
Guarantor, exceeds the amount which otherwise would have been paid by or
attributable to such Guarantor if each Guarantor had paid the aggregate
Guaranteed Obligations satisfied by such Guarantor Payment in the same
proportion as such Guarantor's "Allocable Amount" (as defined below) (as
determined immediately prior to such Guarantor Payment) bore to the
aggregate Allocable Amounts of each of the Guarantors as determined
immediately prior to the making of such Guarantor Payment, then, following
indefeasible payment in full in cash of the Guaranteed Obligations and
termination of the Credit Agreement and the Designated Financial Contracts,
such Guarantor shall be entitled to receive contribution and indemnification
payments from, and be reimbursed by, each other Guarantor for the amount of
such excess, pro rata based upon their respective Allocable Amounts in
effect immediately prior to such Guarantor Payment.
(B) As of any date of determination, the "Allocable Amount"
of any Guarantor shall be equal to the maximum amount of the claim which
could then be recovered from such Guarantor under this Guaranty without
rendering such claim voidable or avoidable under Section 548 of Chapter 11
of the Bankruptcy Code or under any applicable state Uniform Fraudulent
Transfer Act, Uniform Fraudulent Conveyance Act or similar statute or common
law.
(C) This Section 8 is intended only to define the relative
rights of the Guarantors, and nothing set forth in this Section 8 is
intended to or shall impair the obligations of the Guarantors, jointly and
severally, to pay any amounts as and when the same shall become due and
payable in accordance with the terms of this Guaranty.
(D) The parties hereto acknowledge that the rights of
contribution and indemnification hereunder shall constitute assets of the
Guarantor to which such contribution and indemnification is owing.
(E) The rights of the indemnifying Guarantors against other
Guarantors under this Section 8 shall be exercisable upon the full and
indefeasible payment of the Guaranteed Obligations in cash and the
termination of the Credit Agreement and the Designated Financial Contracts.
SECTION 9. Stay of Acceleration. If acceleration of the time for payment
of any amount payable by the Borrower under the Credit Agreement, any Designated
Financial Contract or any other Loan Document is stayed upon the insolvency,
bankruptcy or reorganization of the Borrower, all such amounts otherwise subject
to acceleration under the terms of the Credit Agreement, any Designated
Financial Contract or any other Loan Document shall nonetheless be payable by
each of the Guarantors hereunder forthwith on demand by the Administrative
Agent.
SECTION 10. Notices. All notices, requests and other communications to
any party hereunder shall be given in the manner prescribed in Article XIII of
7
the Credit Agreement with respect to the Administrative Agent at its notice
address therein and with respect to any Guarantor at the address set forth below
or such other address or telecopy number as such party may hereafter specify for
such purpose by notice to the Administrative Agent in accordance with the
provisions of such Article XIV.
Notice Address for Guarantors:
c/o Applebee's International, Inc.
0000 X. 000xx Xxxxxx
Xxxxxxxx Xxxx, XX 00000
Attention: Chief Financial Officer
Phone: (000) 000-0000
Fax: (000) 000-0000
SECTION 11. No Waivers. No failure or delay by the Administrative Agent
or any Holder of Obligations in exercising any right, power or privilege
hereunder 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 provided in this
Guaranty, the Credit Agreement, any Designated Financial Contract and the other
Loan Documents shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 12. Successors and Assigns. This Guaranty is for the benefit of
the Administrative Agent and the Holders of Obligations and their respective
successors and permitted assigns, provided, that no Guarantor shall have any
right to assign its rights or obligations hereunder without the consent of all
of the Lenders, and any such assignment in violation of this Section 12 shall be
null and void; and in the event of an assignment of any amounts payable under
the Credit Agreement, any Designated Financial Contract or the other Loan
Documents in accordance with the respective terms thereof, the rights hereunder,
to the extent applicable to the indebtedness so assigned, may be transferred
with such indebtedness. This Guaranty shall be binding upon each of the
Guarantors and their respective successors and assigns.
SECTION 13. Changes in Writing. Other than in connection with the
addition of additional Subsidiaries, which become parties hereto by executing a
supplement hereto in the form attached as Annex I, neither this Guaranty nor any
provision hereof may be changed, waived, discharged or terminated orally, but
only in writing signed by each of the Guarantors and the Administrative Agent
with the consent of the Required Lenders under the Credit Agreement.
SECTION 14. GOVERNING LAW. THIS GUARANTY SHALL BE CONSTRUED IN ACCORDANCE
WITH THE INTERNAL LAWS (INCLUDING, WITHOUT LIMITATION, 735 ILCS 105/5-1 ET SEQ.,
BUT OTHERWISE WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS) OF THE STATE OF
ILLINOIS, BUT GIVING EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
SECTION 15. CONSENT TO JURISDICTION; SERVICE OF PROCESS; JURY TRIAL.
8
(A) CONSENT TO JURISDICTION. EACH GUARANTOR HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR ILLINOIS STATE COURT SITTING IN CHICAGO, ILLINOIS IN ANY ACTION
OR PROCEEDING ARISING OUT OF OR RELATING TO THIS GUARANTY AND EACH GUARANTOR
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY
WAIVES ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY
SUCH SUIT, ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT
IS AN INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE
ADMINISTRATIVE AGENT, ANY LC ISSUER OR ANY LENDER TO BRING PROCEEDINGS
AGAINST ANY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY ANY GUARANTOR AGAINST THE ADMINISTRATIVE AGENT, ANY LC ISSUER
OR ANY LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT, ANY LC ISSUER OR
ANY LENDER INVOLVING, DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN CHICAGO, ILLINOIS OR THE CITY
IN WHICH THE PRINCIPAL OFFICE OF THE ADMINISTRATIVE AGENT, LENDER OR
AFFILIATE, AS THE CASE MAY BE, IS LOCATED.
(B) WAIVER OF JURY TRIAL. EACH GUARANTOR HEREBY WAIVES TRIAL
BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING, DIRECTLY OR INDIRECTLY, ANY
MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR OTHERWISE) IN ANY WAY ARISING
OUT OF, RELATED TO, OR CONNECTED WITH THIS GUARANTY OR ANY OTHER LOAN
DOCUMENT OR THE RELATIONSHIP ESTABLISHED THEREUNDER.
SECTION 16. No Strict Construction. The parties hereto have participated
jointly in the negotiation and drafting of this Guaranty. In the event an
ambiguity or question of intent or interpretation arises, this Guaranty shall be
construed as if drafted jointly by the parties hereto and no presumption or
burden of proof shall arise favoring or disfavoring any party by virtue of the
authorship of any provisions of this Guaranty.
SECTION 17. Taxes, Expenses of Enforcement, etc.
(A) Taxes.
(i) All payments by any Guarantor to or for the account of
any Lender, any LC Issuer or the Administrative Agent hereunder or
under any Note or Facility LC Application shall be made free and clear
of and without deduction for any and all Taxes. If any Guarantor shall
be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender, any LC Issuer or the Administrative
Agent, (a) the sum payable shall be increased as necessary so that
after making all required deductions (including deductions applicable
to additional sums payable under this Section 17(A)) such Lender, such
LC Issuer or the Administrative Agent (as the case may be) receives an
9
amount equal to the sum it would have received had no such deductions
been made, (b) such Guarantor shall make such deductions, (c) such
Guarantor shall pay the full amount deducted to the relevant authority
in accordance with applicable law and (d) such Guarantor shall furnish
to the Administrative Agent the original copy of a receipt evidencing
payment thereof within thirty (30) days after such payment is made.
(ii) In addition, the Guarantors hereby agree to pay any
present or future stamp or documentary taxes and any other excise or
property taxes, charges or similar levies which arise from any payment
made hereunder or under any Note or Facility LC Application or from the
execution or delivery of, or otherwise with respect to, this Guaranty
or any Note or Facility LC Application ("Other Taxes").
(iii) The Guarantors hereby agree to indemnify the
Administrative Agent, the LC Issuers and each Lender for the full
amount of Taxes or Other Taxes (including, without limitation, any
Taxes or Other Taxes imposed on amounts payable under this Section
17(A)) paid by the Administrative Agent, the LC Issuers or such Lender
and any liability (including penalties, interest and expenses) arising
therefrom or with respect thereto. Payments due under this
indemnification shall be made within thirty (30) days of the date the
Administrative Agent, the LC Issuers or such Lender makes demand
therefor.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S.
Lender") agrees that it will, not more than ten (10) Business Days
after the date on which it becomes a party to the Credit Agreement, (i)
deliver to each of the Borrower and the Administrative Agent two (2)
duly completed copies of United States Internal Revenue Service Form
W-8BEN or W-8ECI, certifying in either case that such Lender is
entitled to receive payments under this Guaranty without deduction or
withholding of any United States federal income taxes, and (ii) deliver
to each of the Borrower and the Administrative Agent a United States
Internal Revenue Form W-8 or W-9, as the case may be, and certify that
it is entitled to an exemption from United States backup withholding
tax. Each Non-U.S. Lender further undertakes to deliver to each of the
Borrower and the Administrative Agent (x) renewals or additional copies
of such form (or any successor form) on or before the date that such
form expires or becomes obsolete, and (y) after the occurrence of any
event requiring a change in the most recent forms so delivered by it,
such additional forms or amendments thereto as may be reasonably
requested by the Borrower or the Administrative Agent. All forms or
amendments described in the preceding sentence shall certify that such
Lender is entitled to receive payments under this Guaranty without
deduction or withholding of any United States federal income taxes,
unless an event (including without limitation any change in treaty, law
or regulation) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such forms
inapplicable or which would prevent such Lender from duly completing
and delivering any such form or amendment with respect to it and such
Lender advises the Borrower and the Administrative Agent that it is not
capable of receiving payments without any deduction or withholding of
United States federal income tax.
(v) For any period during which a Non-U.S. Lender has
failed to provide the Borrower with an appropriate form pursuant to
clause (iv) above (unless such failure is due to a change in treaty,
10
law or regulation, or any change in the interpretation or
administration thereof by any governmental authority, occurring
subsequent to the date on which a form originally was required to be
provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 17(A) with respect to Taxes imposed
by the United States; provided that, should a Non-U.S. Lender which is
otherwise exempt from or subject to a reduced rate of withholding tax
become subject to Taxes because of its failure to deliver a form
required under clause (iv), above, the Guarantors shall take such steps
as such Non-U.S. Lender shall reasonably request to assist such
Non-U.S. Lender to recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this
Guaranty or any Note pursuant to the law of any relevant jurisdiction
or any treaty shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by applicable
law, such properly completed and executed documentation prescribed by
applicable law as will permit such payments to be made without
withholding or at a reduced rate.
(vii) If the IRS or any other governmental authority of the
United States or any other country or any political subdivision thereof
asserts a claim that the Administrative Agent did not properly withhold
tax from amounts paid to or for the account of any Lender (because the
appropriate form was not delivered or properly completed, because such
Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding
ineffective, or for any other reason), such Lender shall indemnify the
Administrative Agent fully for all amounts paid, directly or
indirectly, by the Administrative Agent as tax, withholding therefor,
or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative
Agent under this subsection, together with all costs and expenses
related thereto (including attorneys' fees and time charges of
attorneys for the Administrative Agent, which attorneys may be
employees of the Administrative Agent). The obligations of the Lenders
under this Section 17(A)(vii) shall survive the payment of the
Obligations and termination of this Guaranty.
(B) Expenses of Enforcement, Etc. Subject to the terms of the
Credit Agreement, after the occurrence of a Default under the Credit
Agreement, the Lenders shall have the right at any time to direct the
Administrative Agent to commence enforcement proceedings with respect to the
Guaranteed Obligations. The Guarantors agree to reimburse the Administrative
Agent and the Holders of Obligations for any reasonable costs and
out-of-pocket expenses (including reasonable attorneys' fees and time
charges of attorneys for the Administrative Agent and the Holders of
Obligations, which attorneys may be employees of the Administrative Agent or
the Holders of Obligations) paid or incurred by the Administrative Agent or
any Holders of Obligation in connection with the collection and enforcement
of amounts due under the Loan Documents, including without limitation this
Guaranty. The Administrative Agent agrees to distribute payments received
from any of the Guarantors hereunder to the Holders of Obligations on a pro
rata basis for application in accordance with the terms of the Credit
Agreement.
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SECTION 18. Setoff. At any time after all or any part of the Guaranteed
Obligations have become due and payable (by acceleration or otherwise), each
Holder of Obligations and the Administrative Agent may, without notice to any
Guarantor and regardless of the acceptance of any security or collateral for the
payment hereof, appropriate and apply toward the payment of all or any part of
the Guaranteed Obligations (i) any indebtedness due or to become due from such
Holder of Obligations or the Administrative Agent to any Guarantor, and (ii) any
moneys, credits or other property belonging to any Guarantor, at any time held
by or coming into the possession of such Holder of Obligations or the
Administrative Agent or any of their respective affiliates.
SECTION 19. Financial Information. Each Guarantor hereby assumes
responsibility for keeping itself informed of the financial condition of the
Borrower and any and all endorsers and/or other Guarantors of all or any part of
the Guaranteed Obligations, and of all other circumstances bearing upon the risk
of nonpayment of the Guaranteed Obligations, or any part thereof, that diligent
inquiry would reveal, and each Guarantor hereby agrees that none of the Holders
of Obligations or the Administrative Agent shall have any duty to advise such
Guarantor of information known to any of them regarding such condition or any
such circumstances. In the event any Holder of Obligations or the Administrative
Agent, in its sole discretion, undertakes at any time or from time to time to
provide any such information to a Guarantor, such Holder of Obligations or the
Administrative Agent shall be under no obligation (i) to undertake any
investigation not a part of its regular business routine, (ii) to disclose any
information which such Holder of Obligations or the Administrative Agent,
pursuant to accepted or reasonable commercial finance or banking practices,
wishes to maintain confidential or (iii) to make any other or future disclosures
of such information or any other information to such Guarantor.
SECTION 20. Severability. Wherever possible, each provision of this
Guaranty shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Guaranty shall be prohibited by or
invalid under such law, such provision shall be ineffective to the extent of
such prohibition or invalidity without invalidating the remainder of such
provision or the remaining provisions of this Guaranty.
SECTION 21. Merger. This Guaranty represents the final agreement of each
of the Guarantors with respect to the matters contained herein and may not be
contradicted by evidence of prior or contemporaneous agreements, or subsequent
oral agreements, between the Guarantor and any Holder of Obligations or the
Administrative Agent.
SECTION 22. Headings. Section headings in this Guaranty are for
convenience of reference only and shall not govern the interpretation of any
provision of this Guaranty.
REMAINDER OF PAGE INTENTIONALLY BLANK
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SIGNATURE PAGE TO GUARANTY
IN WITNESS WHEREOF, the Initial Guarantors have caused this Guaranty to
be duly executed by its authorized officer as of the day and year first above
written.
------------------------
By: ________________________________
Its: ________________________________
------------------------
By: ________________________________
Its: ________________________________
------------------------
By: ________________________________
Its: ________________________________
------------------------
By: ________________________________
Its: ________________________________
13
ANNEX I TO GUARANTY
Reference is hereby made to the Guaranty (the "Guaranty") made as
of the 3rd day of December 2004, by and among ____________________, a
____________________, ________________, a ___________________,
______________________, a ____________________ and __________________________, a
____________________ (the "Initial Guarantors" and along with any additional
Subsidiaries of the Borrower, which become parties thereto and together with the
undersigned, the "Guarantors") in favor of the Administrative Agent, for the
ratable benefit of the Holders of Obligations, under the Credit Agreement.
Capitalized terms used herein and not defined herein shall have the meanings
given to them in the Guaranty. By its execution below, the undersigned [NAME OF
NEW GUARANTOR], a [corporation] [partnership] [limited liability company],
agrees to become, and does hereby become, a Guarantor under the Guaranty and
agrees to be bound by such Guaranty as if originally a party thereto. By its
execution below, the undersigned represents and warrants as to itself that all
of the representations and warranties contained in Section 2 of the Guaranty are
true and correct in all respects as of the date hereof.
IN WITNESS WHEREOF, [NAME OF NEW GUARANTOR], a [corporation] [partnership]
[limited liability company] has executed and delivered this Annex I counterpart
to the Guaranty as of this __________ day of _________, ____.
[NAME OF NEW GUARANTOR]
By: _____________________________________
Its:_____________________________________
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EXHIBIT I
FORM OF COMMITMENT AND ACCEPTANCE
COMMITMENT AND ACCEPTANCE
Dated [_______________]
Reference is made to the 5-Year Revolving Credit Agreement dated as of
December 3, 2004 (the "Credit Agreement") among Xxxxxxxx'x International, Inc.
(the "Borrower"), the financial institutions party thereto (the "Lenders"), and
JPMorgan Chase Bank, N.A., as contractual representative for the Lenders (the
"Administrative Agent"). Terms defined in the Credit Agreement are used herein
with the same meaning.
Pursuant to Section 2.6.3 of the Credit Agreement, the Borrower has
requested an increase in the Aggregate Commitment from $______________ to
$_____________. Such increase in the Aggregate Commitment is to become effective
on the date (the "Effective Date") which is the later of (i) _________, ____ and
(ii) the date on which the conditions precedent set forth in Section 2.6.3 in
respect of such increase have been satisfied. In connection with such requested
increase in the Aggregate Commitment, the Borrower, the Administrative Agent and
_________________ (the "Accepting Bank") hereby agree as follows:
1. Effective as of the Effective Date, [the Accepting Bank shall become a
party to the Credit Agreement as a Lender and shall have all of the rights and
obligations of a Lender thereunder and shall thereupon have a Commitment under
and for purposes of the Credit Agreement in an amount equal to the] [the
Commitment of the Accepting Bank under the Credit Agreement shall be increased
from $_________ to the] amount set forth opposite the Accepting Bank's name on
the signature page hereof.
2. The Accepting Bank hereby (i) confirms that it has received a copy of
the Credit Agreement, together with copies of the financial statements and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into this Commitment and Acceptance
Agreement; (ii) agrees that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement;
(iii) appoints and authorizes the Administrative Agent to take such action as
contractual representative on its behalf and to exercise such powers under the
Credit Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms thereof, together with such powers as are
reasonably incidental thereto; and (iv) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement are required to be performed by it as a Lender]
3. The Borrower hereby represents and warrants that as of the date hereof
and as of the Effective Date, (a) all representations and warranties shall be
true and correct in all material respects as though made on such date and (b) no
event shall have occurred and then be continuing which constitutes a Default or
an Unmatured Default.
4. THIS COMMITMENT AND ACCEPTANCE AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE INTERNAL LAWS INCLUDING ss.735 ILCS 105/5-1 ET
SEQ. BUT OTHERWISE WITHOUT REGARD TO THE CONFLICTS OF LAWS PROVISIONS) OF THE
STATE OF ILLINOIS.
5. This Commitment and Acceptance Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Commitment and
Acceptance Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
XXXXXXXX'X INTERNATIONAL, INC.
By:______________________________________
Title:___________________________________
JPMORGAN CHASE BANK, N.A.,
as Administrative Agent
By:______________________________________
Title:___________________________________
COMMITMENT ACCEPTING BANK
$ [BANK]
By:______________________________________
Title:___________________________________
3
Reaffirmations of Guarantors
Each of the undersigned hereby acknowledges receipt of the foregoing
Commitment and Acceptance. Capitalized terms used in this Reaffirmation and not
defined herein shall have the meanings given to them in the Credit Agreement
referred to in the foregoing Commitment and Acceptance. Without in any way
establishing a course of dealing by the Administrative Agent or any Lender, the
undersigned reaffirms the terms and conditions of the Guaranty dated as of
December 3, 2004 executed by it and acknowledges and agrees that such Guaranty
and each and every other Loan Document executed by the undersigned in connection
with the Credit Agreement remain in full force and effect and are hereby
ratified, reaffirmed and confirmed. All references to the Credit Agreement
contained in the above-referenced documents shall be a reference to the Credit
Agreement as so amended by the Commitment and Acceptance and as the same may
from time to time hereafter be amended, modified or restated. The failure of any
Guarantor to sign this Reaffirmation shall not release, discharge or otherwise
affect the obligations of any of the Guarantors hereunder or under the Guaranty.
[GUARANTORS]
By: _____________________________________
Its: ____________________________________
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