Exhibit 10.58
EXECUTION COPY
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ACQUISITION REVOLVING CREDIT AGREEMENT
dated as of December 24, 1998
among
NATIONAL RESTAURANT ENTERPRISES, INC.,
AMERIKING, INC.
and
BANKBOSTON, N.A.
and those other lending institutions listed on Schedule 1 hereto
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and
BANKBOSTON, N.A., as Agent
with
BANCBOSTON XXXXXXXXX XXXXXXXX INC.,
acting as Arranger
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TABLE OF CONTENTS
1. DEFINITIONS AND RULES OF INTERPRETATION..................................................................... 1
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1.1. Definitions....................................................................................... 1
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1.2. Rules of Interpretation........................................................................... 3
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2. THE REVOLVING CREDIT FACILITY............................................................................... 4
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2.1. Commitment to Lend................................................................................ 4
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2.2. Commitment Fee.................................................................................... 5
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2.3. Reduction of Total Commitment..................................................................... 5
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2.3.1. Right of Borrower......................................................................... 5
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2.3.2. Automatic Reductions...................................................................... 5
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2.4. The Revolving Credit Notes........................................................................ 5
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2.5. Interest on Revolving Credit Loans................................................................ 6
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2.6. Requests for Revolving Credit Loans............................................................... 6
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2.7. Conversion Options................................................................................ 7
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2.7.1. Conversion to Different Type of Revolving Credit Loan..................................... 7
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2.7.2. Continuation of Type of Revolving Credit Loan............................................. 7
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2.7.3. Eurodollar Rate Loans..................................................................... 8
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2.8. Funds for Revolving Credit Loan................................................................... 8
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2.8.1. Funding Procedures........................................................................ 8
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2.8.2. Advances by Agent......................................................................... 8
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3. REPAYMENT OF THE REVOLVING CREDIT LOANS..................................................................... 9
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3.1. Maturity.......................................................................................... 9
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3.2. Mandatory Repayments of Revolving Credit Loans.................................................... 9
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3.3. Optional Repayments of Revolving Credit Loans..................................................... 9
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4. [Intentionally omitted.].................................................................................... 10
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5. CERTAIN GENERAL PROVISIONS.................................................................................. 10
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5.1. Closing Fee....................................................................................... 10
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5.2. Agent's Fee....................................................................................... 10
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5.3. Funds for Payments................................................................................ 10
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5.3.1. Payments to Agent......................................................................... 10
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5.3.2. No Offset, etc............................................................................ 10
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5.4. Computations...................................................................................... 10
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5.5. Inability to Determine Eurodollar Rate............................................................ 11
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5.6. Illegality........................................................................................ 11
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5.7. Additional Costs, etc............................................................................. 11
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5.8. Capital Adequacy.................................................................................. 14
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5.9. Certificate....................................................................................... 14
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5.10. Indemnity....................................................................................... 14
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5.11. Interest on Overdue Amounts..................................................................... 15
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5.12. Replacement Banks............................................................................... 15
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6. COLLATERAL SECURITY AND GUARANTEES.......................................................................... 15
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6.1. Security of Borrower and Subsidiaries; Guaranty of Subsidiaries.................... 16
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6.2. Guaranties and Security of Holdings................................................ 16
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7. REPRESENTATIONS AND WARRANTIES............................................................... 17
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8. AFFIRMATIVE COVENANTS........................................................................ 17
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9. CERTAIN NEGATIVE COVENANTS................................................................... 17
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10. FINANCIAL COVENANTS......................................................................... 18
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11. CLOSING CONDITIONS.......................................................................... 18
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12. CONDITIONS TO ALL BORROWINGS................................................................ 18
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12.1. Representations True; No Event of Default......................................... 18
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12.2. No Legal Impediment............................................................... 18
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12.3. Governmental Regulation........................................................... 19
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12.4. Proceedings and Documents......................................................... 19
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12.5. Acquisition Documents............................................................. 19
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12.6. Pro Forma Compliance.............................................................. 19
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12.7. Use of Proceeds................................................................... 19
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12.8. Disbursement Instructions......................................................... 19
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12.9. Incurrence Test................................................................... 19
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13. EVENTS OF DEFAULT; ACCELERATION; ETC........................................................ 19
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13.1. Events of Default and Acceleration................................................ 19
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13.2. Termination of Commitments........................................................ 20
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13.3. Remedies.......................................................................... 20
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13.4. Distribution of Collateral Proceeds............................................... 20
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14. SETOFF...................................................................................... 21
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15. THE AGENT................................................................................... 22
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15.1. Authorization..................................................................... 22
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15.2. Employees and Agents.............................................................. 22
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15.3. No Liability...................................................................... 23
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15.4. No Representations................................................................ 23
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15.5. Payments.......................................................................... 23
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15.5.1. Payments to Agent........................................................ 23
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15.5.2. Distribution by Agent.................................................... 24
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15.5.3. Delinquent Banks......................................................... 24
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15.6. Holders of Revolving Credit Notes................................................. 24
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15.7. Indemnity......................................................................... 24
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15.8. Agent as Bank..................................................................... 25
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15.9. Resignation....................................................................... 25
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15.10. Notification of Defaults and Events of Default................................... 25
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15.11. Duties in the Case of Enforcement................................................ 25
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16. EXPENSES.................................................................................... 26
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17. INDEMNIFICATION............................................................................. 26
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18. SURVIVAL OF COVENANTS, ETC.................................................................. 26
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19. ASSIGNMENT AND PARTICIPATION................................................................ 27
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19.1. Conditions to Assignment by Banks................................................. 27
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19.2. Certain Representations and Warranties; Limitations; Covenants...................... 27
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19.3. Register............................................................................ 29
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19.4. New Revolving Credit Notes.......................................................... 29
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19.5. Participations...................................................................... 29
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19.6. Disclosure.......................................................................... 30
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19.7. Assignee or Participant Affiliated with the Borrower................................ 30
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19.8. Miscellaneous Assignment Provisions................................................. 30
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19.9. Assignment by Borrower.............................................................. 31
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20. NOTICES, ETC.................................................................................. 31
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21. GOVERNING LAW................................................................................. 31
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22. HEADINGS...................................................................................... 32
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23. COUNTERPARTS.................................................................................. 32
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24. ENTIRE AGREEMENT, ETC......................................................................... 32
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25. WAIVER OF JURY TRIAL.......................................................................... 32
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26. CONSENTS, AMENDMENTS, WAIVERS, ETC............................................................ 33
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27. SEVERABILITY.................................................................................. 33
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28. SURVIVAL OF REVOLVER CREDIT AGREEMENT......................................................... 33
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EXHIBITS
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Exhibit A Form of Revolving Credit Note
Exhibit B Form of Revolving Credit Loan Request
Exhibit C Form of Assignment and Acceptance
Exhibit D Exemption Certificate
SCHEDULES
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Schedule 1 Commitments
ACQUISITION REVOLVING CREDIT AGREEMENT
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This ACQUISITION REVOLVING CREDIT AGREEMENT is made as of December 24,
1998, by and among AMERIKING, INC. ("Holdings"), a Delaware corporation,
NATIONAL RESTAURANT ENTERPRISES, INC. (the "Borrower"), a Delaware corporation
having its principal place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxx 00000 and BANKBOSTON, N.A., a national banking association
and the other lending institutions listed on Schedule 1 and BANKBOSTON, N.A. as
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agent for itself and such other lending institutions.
1. DEFINITIONS AND RULES OF INTERPRETATION.
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1.1. Definitions. Capitalized terms used herein without definition and
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defined in the Revolver Credit Agreement shall have the meanings set forth in
the Revolver Credit Agreement. The following terms shall have the meanings set
forth in this (S)1 or elsewhere in the provisions of this Credit Agreement
referred to below:
Acquisition Loan Documents. This Credit Agreement and the Revolving Credit
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Notes.
Affected Bank. See (S)5.12 hereof.
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Agent's Fee. See (S)5.2 hereof.
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Assignment and Acceptance. See (S)19.1 hereof.
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Banks. BKB and the other lending institutions listed on Schedule 1 hereto
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and any other Person who becomes an assignee of any rights and obligations of a
Bank pursuant to (S)19.
Base Rate Loans. Revolving Credit Loans bearing interest calculated by
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reference to the Base Rate.
Borrower. As defined in the preamble hereto.
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Commitment. With respect to each Bank, the amount set forth on Schedule 1
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hereto as the amount of such Bank's commitment to make Revolving Credit Loans to
the Borrower, as the same may be reduced from time to time; or if such
commitment is terminated pursuant to the provisions hereof, zero.
Commitment Percentage. With respect to each Bank, the percentage set forth
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on Schedule 1 hereto as such Bank's percentage of the aggregate Commitments of
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all of the Banks.
Conversion Request. A notice given by the Borrower to the Agent of the
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Borrower's election to convert or continue a Revolving Credit Loan in accordance
with (S)2.7.
Credit Agreement. This Acquisition Revolving Credit Agreement, including
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the Schedules and Exhibits hereto.
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Default. See (S)13.1 hereof.
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Delinquent Bank. See (S)15.5.3 hereof.
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Drawdown Date. The date on which any Revolving Credit Loan is made or is
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to be made, and the date on which any Revolving Credit Loan is converted or
continued in accordance with (S)2.7.
Event of Default. See (S)13.1 hereof.
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Holdings. As defined in the preamble thereto.
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Interest Payment Date. (a) As to any Base Rate Loan, the last day of the
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calendar quarter which includes the Drawdown Date thereof; and (b) as to any
Eurodollar Rate Loan in respect of which the Interest Period is (i) 3 months or
less, the last day of such Interest Period and (ii) more than 3 months, the date
that is 3 months from the first day of such Interest Period and, in addition,
the last day of such Interest Period.
Interest Period. With respect to each Revolving Credit Loan (a) initially,
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the period commencing on the Drawdown Date of such Revolving Credit Loan and
ending on the last day of one of the periods set forth below, as selected by the
Borrower in a Loan Request (i) for any Base Rate Loan, the last day of the
calendar quarter; and (ii) for any Eurodollar Rate Loan, 1, 2, 3, or 6 months;
and (b) thereafter, each period commencing on the last day of the next preceding
Interest Period applicable to such Revolving Credit Loan and ending on the last
day of one of the periods set forth above, as selected by the Borrower in a
Conversion Request; provided that all of the foregoing provisions relating to
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Interest Periods are subject to the following:
(i) if any Interest Period with respect to a Eurodollar Rate Loan
would otherwise end on a day that is not a Eurodollar Business Day, that
Interest Period shall be extended to the next succeeding Eurodollar
Business Day unless the result of such extension would be to carry such
Interest Period into another calendar month, in which event such Interest
Period shall end on the immediately preceding Eurodollar Business Day;
(ii) if any Interest Period with respect to a Base Rate Loan would
end on a day that is not a Business Day, that Interest Period shall end on
the next succeeding Business Day;
(iii) if the Borrower shall fail to give notice as provided in
(S)2.7, the Borrower shall be deemed to have requested a conversion of the
affected Eurodollar Rate Loan to a Base Rate Loan and the continuance of
all Base Rate Loans as Base Rate Loans on the last day of the then current
Interest Period with respect thereto;
(iv) any Interest Period relating to any Eurodollar Rate Loan that
begins on the last Eurodollar Business Day of a calendar month (or on a day
for which there is no numerically corresponding day in the calendar month
at the end of
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such Interest Period) shall end on the last Eurodollar Business Day of a
calendar month; and
(v) any Interest Period relating to any Eurodollar Rate Loan that
would otherwise extend beyond the Revolving Credit Loan Maturity Date shall
end on the Revolving Credit Loan Maturity Date.
Loan Documents. The Acquisition Loan Documents and the Revolver Loan
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Documents.
Loan Request. See (S)2.6 hereof.
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outstanding. With respect to the Revolving Credit Loans, the aggregate
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unpaid principal thereof as of any date of determination.
Record. The grid attached to a Revolving Credit Note, or the continuation
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of such grid, or any other similar record, including computer records,
maintained by any Bank with respect to any Revolving Credit Loan referred to in
such Revolving Credit Note.
Revolver Credit Agreement. The Fourth Amended and Restated Credit
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Agreement dated as of the date hereof among the parties hereto and as may be
amended from time to time.
Revolver Loans. "Revolving Credit Loans" as defined in the Revolver Credit
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Agreement.
Revolver Notes. The "Revolving Credit Notes" as defined in the Revolver
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Credit Agreement.
Revolver Outstandings. The aggregate unpaid principal amount of Revolver
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Loans.
Revolver Total Commitment. The "Total Commitment" as defined in the
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Revolver Credit Agreement.
Revolving Credit Loans. Revolving credit loans made or to be made by the
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Banks to the Borrower pursuant to (S)2.
Revolving Credit Notes. See (S)2.4 hereof.
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Total Commitment. The sum of the Commitments of the Banks, as in effect
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from time to time.
1.2. Rules of Interpretation.
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(a) A reference to any document or agreement shall include such
document or agreement as amended, modified or supplemented from time to
time in accordance with its terms and the terms of this Credit Agreement.
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(b) The singular includes the plural and the plural includes the
singular.
(c) A reference to any law includes any amendment or modification to
such law.
(d) A reference to any Person includes its permitted successors and
permitted assigns.
(e) Accounting terms not otherwise defined herein have the meanings
assigned to them by generally accepted accounting principles applied on a
consistent basis by the accounting entity to which they refer.
(f) The words "include", "includes" and "including" are not limiting.
(g) All terms not specifically defined herein or by generally
accepted accounting principles, which terms are defined in the Uniform
Commercial Code as in effect in the Commonwealth of Massachusetts, have the
meanings assigned to them therein, with the term "instrument" being that
defined under Article 9 of the Uniform Commercial Code.
(h) Reference to a particular "(S)" refers to that section of this
Credit Agreement unless otherwise indicated.
(i) The words "herein", "hereof", "hereunder" and words of like
import shall refer to this Credit Agreement as a whole and not to any
particular section or subdivision of this Credit Agreement.
2. THE REVOLVING CREDIT FACILITY.
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2.1. Commitment to Lend. Subject to the terms and conditions set forth in
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this Credit Agreement (including, but not limited to those requirements set
forth in (S)2.6 below), each of the Banks severally agrees to lend to the
Borrower and the Borrower may borrow, repay, and reborrow from time to time
between the Closing Date and the Revolving Credit Loan Maturity Date upon notice
by the Borrower to the Agent given in accordance with (S)2.6, such sums as are
requested by the Borrower up to a maximum aggregate amount outstanding (after
giving effect to all amounts requested) at any one time equal to such Bank's
Commitment, provided that the sum of the outstanding amount of the Revolving
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Credit Loans (after giving effect to all amounts requested) shall not at any
time exceed the Total Commitment. The Revolving Credit Loans shall be made pro
rata in accordance with each Bank's Commitment Percentage. Each request for a
Revolving Credit Loan hereunder shall constitute a representation and warranty
by the Borrower that the conditions set forth in (S)11 and (S)12, in the case of
the initial Revolving Credit Loans to be made on the Closing Date, and (S)12, in
the case of all other Revolving Credit Loans, have been satisfied on the date of
such request. Notwithstanding anything to the contrary contained herein, the
Borrower shall not be permitted to borrow Revolving Credit Loans after June 17,
2000 to finance any portion of a Permitted Acquisition.
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2.2. Commitment Fee. The Borrower agrees to pay to the Agent for the
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accounts of the Banks in accordance with their respective Commitment Percentages
a commitment fee calculated at the rate of the Commitment Fee Rate per annum on
the average daily amount during each calendar quarter or portion thereof from
the Closing Date to the Revolving Credit Loan Maturity Date by which the Total
Commitment exceeds the outstanding amount of Revolving Credit Loans during such
calendar quarter. The commitment fee shall be payable quarterly in arrears on
the first day of each calendar quarter for the immediately preceding calendar
quarter commencing on the first such date following the date hereof, with a
final payment on the Revolving Credit Maturity Date or any earlier date on which
the Commitments shall terminate.
2.3. Reduction of Total Commitment.
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2.3.1. Right of Borrower. The Borrower shall have the right at any
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time and from time to time upon seven (7) Business Days prior written
notice to the Agent to reduce by $5,000,000 or an integral multiple of
$1,000,000 in excess thereof the unborrowed portion of the Total Commitment
or terminate entirely the Total Commitment, whereupon the Commitments of
the Banks shall be reduced pro rata in accordance with their respective
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Commitment Percentages of the amount specified in such notice or, as the
case may be, terminated. Promptly after receiving any notice of the
Borrower delivered pursuant to this (S)2.3, the Agent will notify the Banks
of the substance thereof. Upon the effective date of any such reduction or
termination, the Borrower shall pay to the Agent for the respective
accounts of the Banks the full amount of any commitment fee then accrued on
the amount of the reduction. No reduction or termination of the
Commitments may be reinstated.
2.3.2. Automatic Reductions. On and after June 17, 2000, the Total
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Commitment shall equal the outstanding amount of the Revolving Credit Loans
on June 17, 2000, whereupon the Commitments of the Banks shall be reduced
pro rata in accordance with their respective Commitment Percentages.
2.4. The Revolving Credit Notes. The Revolving Credit Loans shall be
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evidenced by separate promissory notes of the Borrower in substantially the form
of Exhibit A hereto (each a "Revolving Credit Note"), dated as of the Closing
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Date and completed with appropriate insertions. One Revolving Credit Note shall
be payable to the order of each Bank in a principal amount equal to such Bank's
Commitment or, if less, the outstanding amount of all Revolving Credit Loans
made by such Bank, plus interest accrued thereon, as set forth below. The
Borrower irrevocably authorizes each Bank to make or cause to be made, at or
about the time of the Drawdown Date of any Revolving Credit Loan or at the time
of receipt of any payment of principal on such Bank's Revolving Credit Note, an
appropriate notation on such Bank's Record reflecting the making of such
Revolving Credit Loan or (as the case may be) the receipt of such payment. The
outstanding amount of the Revolving Credit Loans set forth on such Bank's Record
shall be prima facie evidence of the principal amount thereof owing and unpaid
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to such Bank, but the failure to record, or any error in so recording, any such
amount on such Bank's Record shall not limit or otherwise affect the obligations
of the Borrower hereunder or under any Revolving Credit Note to make payments of
principal of or interest on any Revolving Credit Note when due.
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2.5. Interest on Revolving Credit Loans. Except as otherwise provided in
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(S)5.11,
(a) each Base Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the
Base Rate plus the Applicable Margin.
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(b) Each Eurodollar Rate Loan shall bear interest for the period
commencing with the Drawdown Date thereof and ending on the last day of the
Interest Period with respect thereto at the rate per annum equal to the
Eurodollar Rate for such Interest Period plus the Applicable Margin.
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(c) The Borrower promises to pay interest on each Revolving Credit
Loan in arrears on each Interest Payment Date with respect thereto.
2.6. Requests for Revolving Credit Loans. The Borrower shall give to the
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Agent written notice in the form of Exhibit B hereto (or telephonic notice
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confirmed in a writing in the form of Exhibit B hereto) of each Revolving Credit
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Loan requested hereunder (a "Loan Request") no less than 1:00 p.m. (Boston time)
(a) one (1) Business Day prior to the proposed Drawdown Date of any Base Rate
Loan and (b) three (3) Eurodollar Business Days prior to the proposed Drawdown
Date of any Eurodollar Rate Loan, provided, however, the Borrower shall not
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request any Eurodollar Rate Loans with an Interest Period of more than one month
until the date which is earlier to occur of (i) sixty (60) Business Days
following the Closing Date, and (ii) the date on which the Revolving Credit
Loans hereunder have been syndicated to the satisfaction of the Agent. Each
such notice shall specify (i) the principal amount of the Revolving Credit Loan
requested, (ii) the proposed Drawdown Date of such Revolving Credit Loan, (iii)
the Interest Period for such Revolving Credit Loan, and (iv) the Type of such
Revolving Credit Loan. Promptly upon receipt of any such notice, the Agent
shall notify each of the Banks thereof. Each Loan Request shall be irrevocable
and binding on the Borrower and shall obligate the Borrower to accept the
Revolving Credit Loan requested from the Banks on the proposed Drawdown Date.
Each Loan Request shall be in a minimum aggregate amount of $500,000 or a larger
integral multiple of $100,000. Except in the case of a Nominally Financed
Acquisition, the Borrower shall deliver to the Agent not less than five (5) days
prior to the proposed Drawdown Date of such Revolving Credit Loan a written
notification describing the relevant Permitted Financed Acquisition to be
consummated, copies of all material documents, agreements and instruments to be
entered into by the Borrower in connection with such Permitted Financed
Acquisition, and the purchase price for such Permitted Financed Acquisition
(which purchase price plus all transaction costs related thereto shall not be
less than the amount of the Revolving Credit Loan so requested). Subject to the
foregoing, and subject to the satisfaction of the conditions set forth in (S)12,
so long as no Default or Event of Default shall have occurred and be continuing,
and all of the applicable conditions set forth in this Credit Agreement shall
have been met, including, but not limited to the Borrower having taken all
action necessary and required pursuant to the terms of this Credit Agreement and
the other Loan Documents to perfect the Agent's first priority security interest
in the assets being acquired (or, in the event any Subsidiary is formed as a
result of or in connection with such acquisition, such
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Subsidiary shall be a Restricted Subsidiary, and the Loan Documents shall be
amended and/or supplemented as necessary to make the terms and conditions of the
Loan Documents applicable to such Restricted Subsidiary), and the Agent being
satisfied with the terms of the proposed Permitted Financed Acquisition, each
Bank shall lend to the Borrower such Bank's Commitment Percentage of the
Revolving Credit Loan so requested in immediately available funds not later than
the close of business on such Drawdown Date.
2.7. Conversion Options.
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2.7.1. Conversion to Different Type of Revolving Credit Loan. The
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Borrower may elect from time to time to convert any outstanding Revolving
Credit Loan to a Revolving Credit Loan of another Type, provided that (a)
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with respect to any such conversion of a Revolving Credit Loan to a Base
Rate Loan, the Borrower shall give the Agent at least one (1) Business
Day's prior written notice of such election; (b) with respect to any such
conversion of a Base Rate Loan to a Eurodollar Rate Loan, the Borrower
shall give the Agent at least three (3) Eurodollar Business Days prior
written notice of such election; (c) with respect to any such conversion of
a Eurodollar Rate Loan into a Base Rate Loan, such conversion shall only be
made on the last day of the Interest Period with respect thereto; (d) no
Revolving Credit Loan may be converted into a Eurodollar Rate Loan when any
Default or Event of Default has occurred and is continuing; (e) no
Revolving Credit Loan may be converted into a Eurodollar Rate Loan with an
Interest Period of more than thirty (30) days until the date which is
earlier to occur of (i) sixty (60) Business Days following the Closing
Date, and (ii) the date on which the Revolving Credit Loans hereunder have
been syndicated to the satisfaction of the Agent; and (f) no more than five
(5) Eurodollar Rate Loans (including "Eurodollar Rate Loans" as defined in
and advanced pursuant to the Revolver Credit Agreement) having different
Interest Periods may be outstanding at any time. On the date on which such
conversion is being made each Bank shall take such action as is necessary
to transfer its Commitment Percentage of such Revolving Credit Loans to its
Domestic Lending Office or its Eurodollar Lending Office, as the case may
be. All or any part of outstanding Revolving Credit Loans of any Type may
be converted into a Revolving Credit Loan of another Type as provided
herein, provided that any partial conversion shall be in an aggregate
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principal amount of $500,000 or a larger integral multiple of $100,000 in
excess thereof. Each Conversion Request relating to the conversion of a
Base Rate Loan to a Eurodollar Rate Loan shall be irrevocable by the
Borrower.
2.7.2. Continuation of Type of Revolving Credit Loan. Any Revolving
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Credit Loan of any Type may be continued as a Revolving Credit Loan of the
same Type upon the expiration of an Interest Period with respect thereto by
compliance by the Borrower with the notice provisions contained in
(S)2.7.1; provided that no Eurodollar Rate Loan may be continued as such
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when any Default or Event of Default has occurred and is continuing, but
shall be automatically converted to a Base Rate Loan on the last day of the
first Interest Period relating thereto ending during the continuance of any
Default or Event of
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Default of which officers of the Agent active upon the Borrower's account
have actual knowledge. In the event that the Borrower fails to provide any
such notice with respect to the continuation of any Eurodollar Rate Loan as
such, then such Eurodollar Rate Loan shall be automatically converted to a
Base Rate Loan on the last day of the first Interest Period relating
thereto. The Agent shall notify the Banks promptly when any such automatic
conversion contemplated by this (S)2.7 is scheduled to occur.
2.7.3. Eurodollar Rate Loans. Any conversion to or from Eurodollar
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Rate Loans shall be in such amounts and be made pursuant to such elections
so that, after giving effect thereto, the aggregate principal amount of all
Eurodollar Rate Loans having the same Interest Period shall not be less
than $500,000 or a larger integral multiple of $100,000 in excess thereof.
2.8. Funds for Revolving Credit Loan.
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2.8.1. Funding Procedures. Not later than 1:00 p.m. (Boston time)
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on the proposed Drawdown Date of any Revolving Credit Loans, each of the
Banks will make available to the Agent, at the Agent's Head Office, in
immediately available funds, the amount of such Bank's Commitment
Percentage of the amount of the requested Revolving Credit Loans. Upon
receipt from each Bank of such amount, and upon receipt of the documents
required by (S)(S)11 and 12 and the satisfaction of the other conditions
set forth therein, to the extent applicable, the Agent will make available
to the Borrower the aggregate amount of such Revolving Credit Loans made
available to the Agent by the Banks. The failure or refusal of any Bank to
make available to the Agent at the aforesaid time and place on any Drawdown
Date the amount of its Commitment Percentage of the requested Revolving
Credit Loans shall not relieve any other Bank from its several obligation
hereunder to make available to the Agent the amount of such other Bank's
Commitment Percentage of any requested Revolving Credit Loans.
2.8.2. Advances by Agent. The Agent may, unless notified to the
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contrary by any Bank prior to a Drawdown Date, assume that such Bank has
made available to the Agent on such Drawdown Date the amount of such Bank's
Commitment Percentage of the Revolving Credit Loans to be made on such
Drawdown Date, and the Agent may (but it shall not be required to), in
reliance upon such assumption, make available to the Borrower a
corresponding amount. If any Bank makes available to the Agent such amount
on a date after such Drawdown Date, such Bank shall pay to the Agent on
demand an amount equal to the product of (a) the average computed for the
period referred to in clause (c) below, of the weighted average interest
rate paid by the Agent for federal funds acquired by the Agent during each
day included in such period, times (b) the amount of such Bank's Commitment
-----
Percentage of such Revolving Credit Loans, times (c) a fraction, the
-----
numerator of which is the number of days that elapse from and including
such Drawdown Date to the date on which the amount of such Bank's
Commitment Percentage of such Revolving Credit Loans shall become
immediately available to the Agent, and the denominator of which is 365. A
statement of the Agent submitted to such Bank with respect to any
-9-
amounts owing under this paragraph shall be prima facie evidence of the
----- -----
amount due and owing to the Agent by such Bank. If the amount of such
Bank's Commitment Percentage of such Revolving Credit Loans is not made
available to the Agent by such Bank within three (3) Business Days
following such Drawdown Date, the Agent shall be entitled to recover such
amount from the Borrower on demand, with interest thereon at the rate per
annum applicable to the Revolving Credit Loans made on such Drawdown Date.
3. REPAYMENT OF THE REVOLVING CREDIT LOANS.
--------- -- --- --------- ------ -----
3.1. Maturity. The Borrower promises to pay on the Revolving Credit Loan
--------
Maturity Date, and there shall become absolutely due and payable on the
Revolving Credit Loan Maturity Date, all of the Revolving Credit Loans
outstanding on such date, together with any and all accrued and unpaid interest
thereon.
3.2. Mandatory Repayments of Revolving Credit Loans. If at any time the
--------- ---------- -- --------- ------ -----
sum of the outstanding amount of the Revolving Credit Loans exceeds the Total
Commitment then the Borrower shall immediately pay the amount of such excess to
the Agent for the respective accounts of the Banks for application to the
Revolving Credit Loans. Each prepayment of Revolving Credit Loans shall be
allocated among the Banks, in proportion, as nearly as practicable, to the
respective unpaid principal amount of each Bank's Revolving Credit Note, with
adjustments to the extent practicable to equalize any prior payments or
repayments not exactly in proportion. In addition, in the event Holdings or any
of its Subsidiaries receives any cash proceeds from (a) the sale or other
disposition of assets permitted by (S)9.5 of the Revolver Credit Agreement which
cash proceeds are required by such (S)9.5 to be repaid to the Agent; or (b) the
sale of any of the capital stock of the Borrower or any of its Subsidiaries or
any other equity issuance by the Borrower or any of its Subsidiaries, such
amounts shall be paid to the Agent for the pro rata accounts of the Banks to be
--- ----
applied to the outstanding Revolving Credit Loans and the Total Commitment
concurrently shall be permanently reduced by such amount.
3.3. Optional Repayments of Revolving Credit Loans. The Borrower shall
-------- ---------- -- --------- ------ -----
have the right, at its election, to repay the outstanding amount of the
Revolving Credit Loans, as a whole or in part, at any time without penalty or
premium, provided that any full or partial prepayment of the outstanding amount
-------- ----
of any Eurodollar Rate Loans pursuant to this (S)3.3 may be made only on the
last day of the Interest Period relating thereto, or, if such prepayment is made
prior to the last day of the Interest Period relating thereto, the Borrower pays
any costs associated with such prepayment as more fully described in (S)5.10.
The Borrower shall give the Agent, no later than 11:00 a.m. (Boston time), at
least one (1) Business Day prior written notice of any proposed prepayment
pursuant to this (S)3.3 of Base Rate Loans, and three (3) Eurodollar Business
Days notice of any proposed prepayment pursuant to this (S)3.3 of Eurodollar
Rate Loans, in each case specifying the proposed date of prepayment of Revolving
Credit Loans and the principal amount to be prepaid. Each such partial
prepayment of the Revolving Credit Loans shall be in an integral multiple of
$100,000, shall be accompanied by the payment of accrued interest on the
principal prepaid to the date of prepayment and shall be applied, in the absence
of instruction by the Borrower, first to the principal of Base Rate Loans and
then to the principal of Eurodollar Rate Loans.
-10-
Each partial prepayment shall be allocated among the Banks, in proportion, as
nearly as practicable, to the respective unpaid principal amount of each Bank's
Revolving Credit Note, with adjustments to the extent practicable to equalize
any prior repayments not exactly in proportion.
4. [Intentionally omitted.]
------------------------
5. CERTAIN GENERAL PROVISIONS.
------- ------- ----------
5.1. Closing Fee. The Borrower agrees to pay to the Agent a closing fee
------- ---
and an amendment fee in the amounts and at the times as set forth in the Fee
Letter.
5.2. Agent's Fee. The Borrower shall pay to the Agent, an Agent's fee
------- ---
(the "Agent's Fee") as provided in the Fee Letter.
5.3. Funds for Payments.
----- --- --------
5.3.1. Payments to Agent. All payments of principal, interest,
-------- -- -----
commitment fees, and any other amounts due hereunder or under any of the
other Loan Documents shall be made to the Agent, for the respective
accounts of the Banks and the Agent, at the Agent's Head Office or at such
other location in the Boston, Massachusetts, area that the Agent may from
time to time designate, in each case in immediately available funds.
5.3.2. No Offset, etc. Except as otherwise provided in (S)5.7, all
-- ------ ---
payments by the Borrower hereunder and under any of the other Loan
Documents shall be made without setoff or counterclaim and free and clear
of and without deduction for any taxes, levies, imposts, duties, charges,
fees, deductions, withholdings, compulsory loans, restrictions or
conditions of any nature now or hereafter imposed or levied by any
jurisdiction or any political subdivision thereof or taxing or other
authority therein unless the Borrower is compelled by law to make such
deduction or withholding. Except as otherwise provided in (S)5.7, if any
such obligation is imposed upon the Borrower with respect to any amount
payable by it hereunder or under any of the other Loan Documents, the
Borrower will pay to the Agent, for the account of the Banks or (as the
case may be) the Agent, on the date on which such amount is due and payable
hereunder or under such other Loan Document, such additional amount in
Dollars as shall be necessary to enable the Banks or the Agent to receive
the same net amount which the Banks or the Agent would have received on
such due date had no such obligation been imposed upon the Borrower. The
Borrower will deliver promptly to the Agent certificates or other valid
vouchers for all taxes or other charges deducted from or paid with respect
to payments made by the Borrower hereunder or under such other Loan
Document.
5.4. Computations. All computations of interest on the Revolving Credit
------------
Loans and of commitment fees, Letter of Credit Fees or other fees shall be based
on a 360-day year and paid for the actual number of days elapsed. Except as
otherwise
-11-
provided in the definition of the term "Interest Period" with respect to
Eurodollar Rate Loans, whenever a payment hereunder or under any of the other
Loan Documents becomes due on a day that is not a Business Day, the due date for
such payment shall be extended to the next succeeding Business Day, and interest
shall accrue during such extension. The outstanding amount of the Revolving
Credit Loans as reflected on the Records from time to time shall be considered
correct and binding on the Borrower unless within five (5) Business Days after
receipt of any notice by the Agent or any of the Banks of such outstanding
amount, the Agent or such Bank shall notify the Borrower to the contrary.
5.5. Inability to Determine Eurodollar Rate. In the event, prior to the
--------------------------------------
commencement of any Interest Period relating to any Eurodollar Rate Loan, the
Agent shall determine or be notified by the Majority Banks that adequate and
reasonable methods do not exist for ascertaining the Eurodollar Rate that would
otherwise determine the rate of interest to be applicable to any Eurodollar Rate
Loan during any Interest Period, the Agent shall forthwith give notice of such
determination (which shall be conclusive and binding on the Borrower and the
Banks) to the Borrower and the Banks. In such event (a) any Loan Request or
Conversion Request with respect to Eurodollar Rate Loans shall be automatically
withdrawn and shall be deemed a request for Base Rate Loans, (b) each Eurodollar
Rate Loan will automatically, on the last day of the then current Interest
Period relating thereto, become a Base Rate Loan, and (c) the obligations of the
Banks to make Eurodollar Rate Loans shall be suspended until the Agent or the
Majority Banks determines that the circumstances giving rise to such suspension
no longer exist, whereupon the Agent or, as the case may be, the Agent upon the
instruction of the Majority Banks, shall so notify the Borrower and the Banks.
5.6. Illegality. Notwithstanding any other provisions herein, if any
----------
present or future law, regulation, treaty or directive or the interpretation or
application thereof shall make it unlawful for any Bank to make or maintain
Eurodollar Rate Loans, such Bank shall forthwith give notice of such
circumstances to the Borrower and the other Banks and thereupon (a) the
commitment of such Bank to make Eurodollar Rate Loans or convert Revolving
Credit Loans of another Type to Eurodollar Rate Loans shall forthwith be
suspended and (b) such Bank's Revolving Credit Loans then outstanding as
Eurodollar Rate Loans, if any, shall be converted automatically to Base Rate
Loans on the last day of each Interest Period applicable to such Eurodollar Rate
Loans or within such earlier period as may be required by law. The Borrower
hereby agrees promptly to pay the Agent for the account of such Bank, upon
demand by such Bank, any additional amounts necessary to compensate such Bank
for any costs incurred by such Bank in making any conversion in accordance with
this (S)5.6, including any interest or fees payable by such Bank to lenders of
funds obtained by it in order to make or maintain its Eurodollar Loans
hereunder.
5.7. Additional Costs, etc. If any present or future applicable law,
---------------------
which expression, as used herein, includes statutes, rules and regulations
thereunder and interpretations thereof by any competent court or by any
governmental or other regulatory body or official charged with the
administration or the interpretation thereof and requests, directives,
instructions and notices at any time or from time to
-12-
time hereafter made upon or otherwise issued to any Bank or the Agent by any
central bank or other fiscal, monetary or other authority (whether or not having
the force of law), shall:
(a) subject any Bank or the Agent to any tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature with respect to this
Credit Agreement, the other Loan Documents, any Letters of Credit, such
Bank's Commitment or the Revolving Credit Loans (other than taxes based
upon or measured by the income or profits of such Bank or the Agent), or
(b) materially change the basis of taxation (except for changes in
taxes on income or profits) of payments to any Bank of the principal of or
the interest on any Revolving Credit Loans or any other amounts payable to
any Bank or the Agent under this Credit Agreement or any of the other Loan
Documents, or
(c) impose or increase or render applicable (other than to the extent
specifically provided for elsewhere in this Credit Agreement) any special
deposit, reserve, assessment, liquidity, capital adequacy or other similar
requirements (whether or not having the force of law) against assets held
by, or deposits in or for the account of, or loans by, or letters of credit
issued by, or commitments of an office of any Bank, or
(d) impose on any Bank or the Agent any other conditions or
requirements with respect to this Credit Agreement, the other Loan
Documents, any Letters of Credit, the Revolving Credit Loans, such Bank's
Commitment, or any class of loans, letters of credit or commitments of
which any of the Revolving Credit Loans or such Bank's Commitment forms a
part,
and the result of any of the foregoing is:
(i) to increase the cost to any Bank of making, funding,
issuing, renewing, extending or maintaining any of the Revolving
Credit Loans or such Bank's Commitment or any Letter of Credit, or
(ii) to reduce the amount of principal, interest, Reimbursement
Obligation or other amount payable to such Bank or the Agent hereunder
on account of such Bank's Commitment, any Letter of Credit or any of
the Revolving Credit Loans, or
(iii) to require such Bank or the Agent to make any payment or
to forego any interest or Reimbursement Obligation or other sum
payable hereunder, the amount of which payment or foregone interest or
Reimbursement Obligation or other sum is calculated by reference to
the gross amount of any sum receivable or deemed received by such Bank
or the Agent from the Borrower hereunder,
then, and in each such case, the Borrower will, upon demand made by such Bank or
(as the case may be) the Agent at any time and from time to time and as often as
the occasion therefor may arise, pay to such Bank or the Agent such additional
amounts as
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will be sufficient to compensate such Bank or the Agent for such additional
cost, reduction, payment or foregone interest or Reimbursement Obligation or
other sum. On or before the date it becomes a party to this Credit Agreement and
from time to time thereafter upon any change in status rendering any certificate
or document previously delivered pursuant to this (S)5.7 invalid or inaccurate,
each Bank that is organized under the laws of a jurisdiction outside the United
States shall (but, with respect to any renewal or change in status, if legally
able to do so) deliver to the Borrower, (x) if such Bank is a "bank" within the
meaning of Section 881(c)(3)(A) of the Code, Internal Revenue Service Form 1001
or Form 4224 and any other certificate or statement of exemption required by
Treasury Regulation Section 1.1441-1, 1.1441-4 or 1.1441-6(c) or any subsequent
version thereof or subsequent revision thereto, properly completed and duly
executed by such Bank establishing that such payment is (a) not subject to
United States Federal withholding tax under the Code because such payment is
effectively connected with conduct by such Bank of a trade or business in the
United States or (b) totally exempt from United States Federal withholding tax,
or (other than in the case of such Bank on the date such Bank became a party to
this Credit Agreement); or (y) if such Bank is not a "bank" within the meaning
of Section 881(c)(3)(A) of the Code and cannot delivery either Internal Revenue
Service Form 1001 or 4224, such Bank shall deliver (a) a certificate
substantially in the form of Exhibit D hereto and (b) two completed signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's entitlement to an exemption for United States withholding tax with
respect to payments of interest to be made under this Credit Agreement or under
any Revolving Credit Note. The Borrower shall not be required to pay any
additional amounts to any Bank pursuant to (S)5.3 or this (S)5.7 to the extent
that the obligation to pay such additional amounts would not have arisen but for
a failure by such Bank to comply with the provisions of the preceding sentence.
Any Bank claiming any additional amounts payable pursuant to (S)5.3 or this
(S)5.7 shall use reasonable efforts (consistent with legal and regulatory
restrictions) to file any certificate or document reasonably requested in
writing by the Borrower or to change the jurisdiction of its applicable lending
office if the making of such a filing or change would avoid the need for or
substantially reduce the amount of any such additional amounts which may
thereafter accrue and would not, in the sole and absolute determination of such
Bank be otherwise disadvantageous to such Bank, which determination by such Bank
shall be conclusive.
If a Bank or the Agent shall become aware that it is entitled to receive a
refund in respect of taxes as to which it has been indemnified by the Borrower
pursuant to (S)5.3 or this (S)5.7, it shall promptly notify the Borrower of the
availability of such refund and shall, within thirty (30) days after receipt of
a request by the Borrower, apply for such refund at the Borrower's expense. If
any Bank or the Agent, as applicable, receives a refund in respect of any taxes
to which it has been indemnified by the Borrower pursuant to (S)5.3 or this
(S)5.7, it shall promptly repay such refund to the Borrower (to the extent of
amounts that have been paid by the Borrower under (S)5.3 or this (S)5.7 with
respect to such refund), net of all out-of-pocket expenses (including taxes
imposed with respect to such refund) of such Bank or the Agent, as applicable,
and without interest; provided, however, that the Borrower, upon the request of
-------- -------
such Bank or the Agent, as applicable, agrees to return such refund (plus
penalties, interest or
-14-
other charges) to such Bank or the Agent in the event such Bank or the Agent is
required to repay such refund.
5.8. Capital Adequacy. If after the date hereof any Bank or the Agent
----------------
determines that (a) the adoption of or change after the Closing Date in any law,
governmental rule, regulation, policy, guideline or directive (whether or not
having the force of law) regarding capital requirements for banks or bank
holding companies or any change in the interpretation or application thereof by
a court or governmental authority with appropriate jurisdiction, or (b)
compliance by such Bank or the Agent or any corporation controlling such Bank or
the Agent with any law, governmental rule, regulation, policy, guideline or
directive (whether or not having the force of law) of any such entity regarding
capital adequacy, has the effect of reducing the return on such Bank's or the
Agent's Commitment with respect to any Revolving Credit Loans or the Revolving
Credit Loans to a level below that which such Bank or the Agent could have
achieved but for such adoption, change or compliance (taking into consideration
such Bank's or the Agent's then existing policies with respect to capital
adequacy and assuming full utilization of such entity's capital) by any amount
deemed by such Bank or (as the case may be) the Agent to be material, then such
Bank or the Agent may notify the Borrower of such fact. To the extent that the
amount of such reduction in the return on capital is not reflected in the Base
Rate, the Borrower and such Bank shall thereafter attempt to negotiate in good
faith, within thirty (30) days of the day on which the Borrower receives such
notice, an adjustment payable hereunder that will adequately compensate such
Bank in light of these circumstances. If the Borrower and such Bank are unable
to agree to such adjustment within thirty (30) days of the date on which the
Borrower receives such notice, then commencing on the date of such notice (but
not earlier than the effective date of any such increased capital requirement),
the fees payable hereunder shall increase by an amount that will, in such Bank's
reasonable determination, provide adequate compensation. Each Bank shall
allocate such cost increases among its customers in good faith and on an
equitable basis.
5.9. Certificate. A certificate setting forth any additional amounts
-----------
payable pursuant to (S)(S)5.7 or 5.8 and a brief explanation of such amounts
which are due, submitted by any Bank or the Agent to the Borrower, shall be
conclusive, absent manifest error, that such amounts are due and owing.
5.10. Indemnity. The Borrower agrees to indemnify each Bank and to hold
---------
each Bank harmless from and against any loss, cost or expense (including loss of
anticipated profits) that such Bank may sustain or incur as a consequence of (a)
default by the Borrower in payment of the principal amount of or any interest on
any Eurodollar Rate Loans as and when due and payable, including any such loss
or expense arising from interest or fees payable by such Bank to lenders of
funds obtained by it in order to maintain its Eurodollar Rate Loans, (b) default
by the Borrower in making a borrowing or conversion after the Borrower has given
(or is deemed to have given) a Loan Request or a Conversion Request relating
thereto in accordance with (S)2.6 or (S)2.7 or (c) the making of any payment of
a Eurodollar Rate Loan or the making of any conversion of any such Revolving
Credit Loan to a Base Rate Loan on a day that is not the last day of the
applicable Interest Period with respect thereto, including
-15-
interest or fees payable by such Bank to lenders of funds obtained by it in
order to maintain any such Revolving Credit Loans.
5.11. Interest on Overdue Amounts. Overdue principal and (to the extent
---------------------------
permitted by applicable law) interest on the Revolving Credit Loans and all
other overdue amounts payable hereunder or under any of the other Loan Documents
shall bear interest compounded monthly and payable on demand at a rate per annum
equal to two percent (2%) above the Base Rate until such amount shall be paid in
full (after as well as before judgment).
5.12. Replacement Banks. Within thirty (30) days after (a) any Bank has
-----------------
demanded compensation from the Borrower pursuant to (S)(S)5.7 or 5.8 hereof, or
(b) there shall have occurred a change in law with respect to any Bank as a
consequence of which it shall have become unlawful for such Bank to make a
Eurodollar Rate Loan on any Drawdown Date, as described in (S)5.6 hereof (any
such Bank described in the foregoing clauses (a) or (b) is hereinafter referred
to as an "Affected Bank"), the Borrower may request that the Non-Affected Banks
-------- ----
acquire all, but not less than all, of the Affected Bank's outstanding Revolving
Credit Loans and assume all, but not less than all, of the Affected Bank's
Commitment. If the Borrower so requests, the Non-Affected Banks may elect to
acquire all or any portion of the Affected Bank's outstanding Revolving Credit
Loans and to assume all or any portion of the Affected Bank's Commitment. If
the Non-Affected Banks do not elect to acquire and assume all of the Affected
Bank's outstanding Revolving Credit Loans and Commitment, the Borrower may
designate a replacement bank or banks, which must be satisfactory to the Agent,
to acquire and assume that portion of the outstanding Revolving Credit Loans and
Commitment of the Affected Bank not being acquired and assumed by the Non-
Affected Banks. The provisions of (S)19 hereof shall apply to all reallocations
pursuant to this (S)5.12, and the Affected Bank and any Non-Affected Banks
and/or replacement banks which are to acquire the Revolving Credit Loans and
Commitment of the Affected Bank shall execute and deliver to the Agent, in
accordance with the provisions of (S)19 hereof, such Assignments and Acceptances
and other instruments, including, without limitation, Revolving Credit Notes, as
are required pursuant to (S)19 hereof to give effect to such reallocations. Any
Non-Affected Banks and/or replacement banks which are to acquire the Revolving
Credit Loans and Commitment of the Affected Bank shall be deemed to be Eligible
Assignees for all purposes of (S)19 hereof. On the effective date of the
applicable Assignments and Acceptances, the Borrower shall pay to the Affected
Bank all interest accrued on its Revolving Credit Loans up to but excluding such
date, along with any fees payable to such Affected Bank hereunder up to but
excluding such date.
6. COLLATERAL SECURITY AND GUARANTEES.
----------------------------------
6.1. Security of Borrower and Subsidiaries; Guaranty of Subsidiaries. The
---------------------------------------------------------------
Obligations shall be secured by a perfected first priority security interest in
certain of the assets of the Borrower (including a pledge of the non-voting
capital stock of each of the Borrower's Subsidiaries, including, without
limitation, the Unrestricted Subsidiaries, provided, however, in the event such
-------- -------
Unrestricted Subsidiary has incurred Indebtedness permitted by (S)9.1(p) of the
Revolver Credit Agreement and the lender of such Indebtedness has requested a
pledge of the non-
-16-
voting capital stock of such Unrestricted Subsidiary by the Borrower, the
Borrower shall only be required to grant to the Agent for the benefit of the
Banks a second priority security interest in such non-voting capital stock until
such Indebtedness has been repaid in full) and its Restricted Subsidiaries
(other than AmeriKing Tennessee until such time as AmeriKing Tennessee is
required to become a Guarantor pursuant to (S)8.17 of the Revolver Credit
Agreement), whether now owned or hereafter acquired, pursuant to the terms of
the Security Documents to which the Borrower and such Restricted Subsidiaries
are parties. The Obligations shall also be secured by a pledge of the non-voting
capital stock of each Unrestricted Subsidiary's Subsidiaries, provided, however,
-------- --------
in the event such Unrestricted Subsidiary has incurred Indebtedness permitted by
(S)9.1(p) of the Revolver Credit Agreement and the lender of such Indebtedness
has requested a pledge of the non-voting capital stock of such Unrestricted
Subsidiary's Subsidiaries, such Unrestricted Subsidiary shall only be required
to grant to the Agent for the benefit of the Banks a second priority security
interest in such non-voting capital stock until such Indebtedness has been
repaid in full. In addition, the Obligations shall also be guaranteed by each of
the Borrower's Restricted Subsidiaries other than AmeriKing Tennessee (until
such time as AmeriKing Tennessee is required to become a Guarantor pursuant to
(S)8.17 of the Revolver Credit Agreement) pursuant to the terms of the Guaranty
of such Restricted Subsidiaries, and the Restricted Subsidiaries' obligations
under such Guaranty shall be secured by a perfected first priority security
interest in certain of the assets of such Restricted Subsidiary (including a
pledge of the non-voting capital stock of each of the Restricted Subsidiaries'
Subsidiaries), whether now owned or hereafter acquired, pursuant to the terms of
the Security Documents to which such Restricted Subsidiaries are parties.
6.2. Guaranties and Security of Holdings. The Obligations shall also be
-----------------------------------
guaranteed by Holdings pursuant to the terms of the Parent Guaranty. The
Obligations shall be secured by a perfected first priority security interest in
certain of the stock owned by Holdings, pursuant to the terms of the Stock
Pledge Agreement to which Holdings is a party.
7. REPRESENTATIONS AND WARRANTIES.
------------------------------
For the benefit of the Banks and the Agent under this Credit Agreement,
each of the Borrower and, to the extent expressly set forth in (S)7 of the
Revolver Credit Agreement, Holdings, makes the representations and warranties to
the Banks and the Agent set forth in (S)7 of the Revolver Credit Agreement, and
incorporates herein by this reference, in each case as fully as if such
representations and warranties were set forth herein at length, provided that
-------- ----
terms used herein and in the Revolver Credit Agreement defined differently in
this Credit Agreement and the Revolver Credit Agreement shall have the meanings
set forth in this Credit Agreement. The representations and warranties
incorporated herein by reference will survive termination of the Revolver Credit
Agreement until all Obligations hereunder are fully and finally repaid and the
Commitments terminated.
-17-
8. AFFIRMATIVE COVENANTS.
---------------------
For the benefit of the Banks and the Agent under this Credit Agreement,
each of Holdings and the Borrower covenant and agree that, so long as any
Revolving Credit Loan or Revolving Credit Note is outstanding or any Bank has
any obligation to make any Revolving Credit Loans, the Borrower and Holdings
shall comply with each covenant set forth in (S)8 of the Revolver Credit
Agreement, and incorporates herein by this reference, in each case as fully as
if such covenants were set forth herein at length, provided that terms used
-------- ----
herein and in the Revolver Credit Agreement defined differently in this Credit
Agreement and the Revolver Credit Agreement shall have the meanings set forth in
this Credit Agreement. The covenants incorporated herein by reference will
survive termination of the Revolver Credit Agreement until all Obligations
hereunder are fully and finally repaid and the Commitments terminated.
Notwithstanding anything in this Section 8 to the contrary, the Borrower
covenants and agrees that the Borrower will use the proceeds of the Revolving
Credit Loans solely to finance Permitted Financed Transactions.
9. CERTAIN NEGATIVE COVENANTS.
--------------------------
For the benefit of the Banks and the Agent under this Credit Agreement,
each of Holdings and the Borrower covenant and agree that, so long as any
Revolving Credit Loan or Revolving Credit Note is outstanding or any Bank has
any obligation to make any Revolving Credit Loans, each shall comply with the
covenants set forth in (S)9 of the Revolver Credit Agreement, and incorporates
herein by this reference, in each case as fully as if such covenants were set
forth herein at length, provided that terms used herein and in the Revolver
-------- ----
Credit Agreement defined differently in this Credit Agreement and the Revolver
Credit Agreement shall have the meanings set forth in this Credit Agreement.
The covenants incorporated herein by reference will survive termination of the
Revolver Credit Agreement until all Obligations hereunder are fully and finally
repaid and the Commitments terminated.
10. FINANCIAL COVENANTS.
-------------------
For the benefit of the Banks and the Agent under this Credit Agreement,
each of Holdings and the Borrower covenants and agrees that, so long as any
Revolving Credit Loan or Revolving Credit Note is outstanding or any Bank has
any obligation to make any Revolving Credit Loans, each shall comply with the
covenants set forth in (S)10 of the Revolver Credit Agreement, and incorporates
herein by this reference, in each case as fully as if such covenants were set
forth herein at length. The covenants incorporated herein by reference will
survive termination of the Revolver Credit Agreement until all Obligations
hereunder are fully and finally repaid and the Commitments terminated.
11. CLOSING CONDITIONS.
------------------
The obligations of the Banks to make the initial Revolving Credit Loans
shall be subject to the satisfaction of the each of the conditions precedent set
forth in (S)11 of the Revolver Credit Agreement and the satisfaction of the
conditions precedent set forth in (S)12 hereof.
-18-
12. CONDITIONS TO ALL BORROWINGS.
----------------------------
The obligations of the Banks to make any Revolving Credit Loan, including
the initial Revolving Credit Loan, in each case whether on or after the Closing
Date, shall also be subject to the satisfaction of the following conditions
precedent:
12.1. Representations True; No Event of Default. Each of the
-----------------------------------------
representations and warranties of any of Holdings, the Borrower and their
Subsidiaries contained in this Credit Agreement, the other Loan Documents or in
any document or instrument delivered pursuant to or in connection with this
Credit Agreement shall be true as of the date as of which they were made and
shall also be true at and as of the time of the making of such Revolving Credit
Loan or the issuance, extension or renewal of such Letter of Credit, with the
same effect as if made at and as of that time (except to the extent of changes
resulting from transactions contemplated or permitted by this Credit Agreement
and the other Loan Documents and changes occurring in the ordinary course of
business that singly or in the aggregate are not materially adverse, and to the
extent that such representations and warranties relate expressly to an earlier
date) and no Default or Event of Default shall have occurred and be continuing.
12.2. No Legal Impediment. No change shall have occurred in any law or
-------------------
regulations thereunder or interpretations thereof that in the reasonable opinion
of any Bank would make it illegal for such Bank to make such Revolving Credit
Loan or to participate in the issuance, extension or renewal of such Letter of
Credit or in the reasonable opinion of the Agent would make it illegal for the
Agent to issue, extend or renew such Letter of Credit.
12.3. Governmental Regulation. Each Bank shall have received such
-----------------------
statements in substance and form reasonably satisfactory to such Bank as such
Bank shall require for the purpose of compliance with any applicable regulations
of the Comptroller of the Currency or the Board of Governors of the Federal
Reserve System.
12.4. Proceedings and Documents. All proceedings in connection with the
-------------------------
transactions contemplated by this Credit Agreement, the other Loan Documents and
all other documents incident thereto shall be satisfactory in substance and in
form to the Banks and to the Agent and the Agent's Special Counsel, and the
Banks, the Agent and such counsel shall have received all information and such
counterpart originals or certified or other copies of such documents as the
Agent may reasonably request.
12.5. Acquisition Documents. The Agent shall have received copies of all
---------------------
material documents to be entered into in connection with each such Permitted
Financed Acquisition for which the Revolving Credit Loan is being requested, and
shall be satisfied with the terms thereof.
12.6. Pro Forma Compliance. The Agent and each Bank shall have received a
--------------------
Compliance Certificate from the Borrower showing pro forma compliance with the
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covenants set forth in (S)10 both prior to and after giving effect to each
Permitted Financed Acquisition.
12.7. Use of Proceeds. The Agent shall have received evidence that the
---------------
Borrower has used the proceeds of each Revolving Credit Loan requested solely to
finance the cash portion of the purchase price and related transaction costs of
each Permitted Financed Acquisition for which such Revolving Credit Loan is
being requested.
12.8. Disbursement Instructions. The Agent shall have received
-------------------------
disbursement instructions from the Borrower with respect to the proceeds of each
requested Revolving Credit Loan.
12.9. Incurrence Test. The Agent shall have received a certificate from
---------------
the Borrower certifying that the Revolving Credit Loan being requested may be
incurred in compliance with the covenant set forth in (S)4.07(a) of the Senior
Notes Indenture.
13. EVENTS OF DEFAULT; ACCELERATION; ETC.
------------------------------------
13.1. Events of Default and Acceleration. If any of the following events
----------------------------------
("Events of Default" or, if the giving of notice or the lapse of time or both is
required, then, prior to such notice or lapse of time, "Defaults") shall occur:
(a) the Borrower shall fail to pay any principal of the Revolving
Credit Loans when the same shall become due and payable, whether at the
stated date of maturity or any accelerated date of maturity or at any other
date fixed for payment;
(b) the Borrower shall fail to pay any (i) interest on the
Revolving Credit Loans, (ii) the commitment fee, (iii) the Agent's fee, or
(iv) other sums due hereunder or under any of the other Loan Documents,
when the same shall become due and payable, whether at the stated date of
maturity or any accelerated date of maturity or at any other date fixed for
payment and such failure shall continue for five (5) days; or
(c) the Borrower shall fail to comply with the covenants contained
in (S)10 hereof;
(d) the Borrower or Holdings shall fail to comply with any of its
covenants contained in the first sentence of (S)8.6, (S)(S)8.9, 8.12, 8.13,
9.1 through 9.6, 9.8, 9.10 or 9.11 of the Revolver Credit Agreement, as
such Sections are incorporated pursuant to Sections 8 and 9 hereof;
then, and in any such event, so long as the same may be continuing, the Agent
may, and upon the request of the Majority Banks shall, by notice in writing to
the Borrower declare all amounts owing with respect to this Credit Agreement,
the Revolving Credit Notes and the other Loan Documents to be, and they shall
thereupon forthwith become, immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which are hereby expressly
waived by the Borrower, provided
--------
-20-
that in the event of any Event of Default specified in (S)(S)13.1(g) or 13.1(h)
of the Revolver Credit Agreement, all such amounts shall become immediately due
and payable automatically and without any requirement of notice form the Agent
or any Bank. For purposes of this Section 13.1, any event constituting an "Event
of Default" under the Revolver Credit Agreement shall constitute an Event of
Default hereunder, and any event constituting a "Default" under the Revolver
Credit Agreement shall constitute a Default hereunder, in each case regardless
of whether there remains any amount outstanding under the Revolver Loans.
13.2. Termination of Commitments. If any one or more of the Events of
--------------------------
Default specified in (S)13.1(g) or (S)13.1(h) of the Revolver Credit Agreement
shall occur, any unused portion of the credit hereunder shall forthwith
terminate and each of the Banks shall be relieved of all further obligations to
make Revolving Credit Loans to the Borrower. If any other Event of Default
shall have occurred and be continuing, the Agent may and, upon the request of
the Majority Banks, shall, by notice to the Borrower, terminate the unused
portion of the credit hereunder, and upon such notice being given such unused
portion of the credit hereunder shall terminate immediately and each of the
Banks shall be relieved of all further obligations to make Revolving Credit
Loans. No termination of the credit hereunder shall relieve Holdings, the
Borrower or any of their Subsidiaries of any of the Obligations.
13.3. Remedies. In case any one or more of the Events of Default shall
--------
have occurred and be continuing, and whether or not the Banks shall have
accelerated the maturity of the Revolving Credit Loans pursuant to (S)13.1, each
Bank, if owed any amount with respect to the Revolving Credit Loans, may, with
the consent of the Majority Banks but not otherwise, proceed to protect and
enforce its rights by suit in equity, action at law or other appropriate
proceeding, whether for the specific performance of any covenant or agreement
contained in this Credit Agreement and the other Loan Documents or any
instrument pursuant to which the Obligations to such Bank are evidenced,
including as permitted by applicable law the obtaining of the ex parte
-- -----
appointment of a receiver, and, if such amount shall have become due, by
declaration or otherwise, proceed to enforce the payment thereof or any other
legal or equitable right of such Bank. No remedy herein conferred upon any Bank
or the Agent or the holder of any Revolving Credit Note is intended to be
exclusive of any other remedy and each and every remedy shall be cumulative and
shall be in addition to every other remedy given hereunder or now or hereafter
existing at law or in equity or by statute or any other provision of law.
13.4. Distribution of Collateral Proceeds. In the event that following
-----------------------------------
the occurrence or during the continuance of any Default or Event of Default, the
Agent or any Bank, as the case may be, receives any monies in connection with
the enforcement of any the Security Documents, or otherwise with respect to the
realization upon any of the Collateral, such monies shall be distributed for
application as follows:
(a) first, to the payment of, or (as the case may be) the
-----
reimbursement of the Agent for or in respect of all reasonable costs,
expenses, disbursements and losses which shall have been incurred or
sustained by the Agent in connection with the collection of such monies by
the Agent, for the exercise, protection or enforcement by the Agent of all
or any of the rights, remedies, powers and
-21-
privileges of the Agent under this Credit Agreement or any of the other
Loan Documents or in respect of the Collateral or in support of any
provision of adequate indemnity to the Agent against any taxes or liens
which by law shall have, or may have, priority over the rights of the Agent
to such monies;
(b) second, to all other Obligations on a pro rata basis; provided,
------ --- ---- --------
however, that (i) distributions in respect of such Obligations shall be
-------
made pari passu among Obligations with respect to the Agent's Fee payable
---- -----
pursuant to (S)5.2 and all other Obligations and (ii) Obligations owing to
the Banks with respect to each type of Obligation such as interest,
principal, fees and expenses, shall be made among the Banks pro rata; and
--- ----
provided, further, that the Agent may in its discretion make proper
-------- -------
allowance to take into account any Obligations not then due and payable;
(c) third, upon payment and satisfaction in full or other provisions
-----
for payment in full satisfactory to the Banks and the Agent of all of the
Obligations, to the payment of any obligations required to be paid pursuant
to (S)9-504(1)(c) of the Uniform Commercial Code of the Commonwealth of
Massachusetts; and
(d) fourth, the excess, if any, shall be returned to the Borrower or
------
to such other Persons as are entitled thereto.
14. SETOFF.
------
Regardless of the adequacy of any collateral, during the continuance of any
Event of Default, any deposits or other sums credited by or due from any of the
Banks to the Borrower and any securities or other property of the Borrower in
the possession of such Bank may be applied to or set off by such Bank against
the payment of Obligations and any and all other liabilities, direct, or
indirect, absolute or contingent, due or to become due, now existing or
hereafter arising, of the Borrower to such Bank. Each of the Banks agrees with
each other Bank that (a) if an amount to be set off is to be applied to
Indebtedness of the Borrower to such Bank, other than Indebtedness evidenced by
the Revolving Credit Notes or Revolver Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, such amount shall be applied
ratably to such other Indebtedness and to the Indebtedness evidenced by all such
Revolving Credit Notes and Revolver Notes held by such Bank or constituting
Reimbursement Obligations owed to such Bank, and (b) if such Bank shall receive
from the Borrower, whether by voluntary payment, exercise of the right of
setoff, counterclaim, cross action, enforcement of the claim evidenced by the
Revolving Credit Notes or Revolver Notes held by, or constituting Reimbursement
Obligations owed to, such Bank by proceedings against the Borrower at law or in
equity or by proof thereof in bankruptcy, reorganization, liquidation,
receivership or similar proceedings, or otherwise, and shall retain and apply to
the payment of the Revolving Credit Notes or Revolver Notes held by, or
Reimbursement Obligations owed to, such Bank any amount in excess of its ratable
portion of the payments received by all of the Banks with respect to the
Revolving Credit Notes or Revolver Notes held by, and Reimbursement Obligations
owed to, all of the Banks, such Bank will make such disposition and arrangements
with the other Banks with respect to such excess, either by way of distribution,
pro tanto assignment of claims, subrogation or otherwise as shall result in
--- -----
-22-
each Bank receiving in respect of the Revolving Credit Notes or Revolver Notes
held by it or Reimbursement Obligations owed it, its proportionate payment as
contemplated by this Credit Agreement; provided that if all or any part of such
--------
excess payment is thereafter recovered from such Bank, such disposition and
arrangements shall be rescinded and the amount restored to the extent of such
recovery, but without interest.
15. THE AGENT.
---------
15.1. Authorization. The Agent is authorized to take such action on
-------------
behalf of each of the Banks and their affiliates and to exercise all such powers
as are hereunder and under any of the other Loan Documents and any related
documents delegated to the Agent, together with such powers as are reasonably
incident thereto, provided that no duties or responsibilities not expressly
--------
assumed herein or therein shall be implied to have been assumed by the Agent.
The relationship between the Agent and the Banks is and shall be that of agent
and principal only, and nothing contained in this Credit Agreement or any of the
other Loan Documents shall be construed to constitute the Agent as a trustee for
any Bank.
15.2. Employees and Agents. The Agent may exercise its powers and execute
--------------------
its duties by or through employees, affiliates or agents and shall be entitled
to take, and to rely on, advice of counsel concerning all matters pertaining to
its rights and duties under this Credit Agreement and the other Loan Documents.
The Agent may utilize the services of such Persons as the Agent in its sole
discretion may reasonably determine, and all reasonable fees and expenses of any
such Persons shall be paid by the Borrower.
15.3. No Liability. Neither the Agent nor any of its shareholders,
------------
directors, officers or employees nor any other Person assisting them in their
duties nor any agent or employee thereof, shall be liable for any waiver,
consent or approval given or any action taken, or omitted to be taken, in good
faith by it or them hereunder or under any of the other Loan Documents, or in
connection herewith or therewith, or be responsible for the consequences of any
oversight or error of judgment whatsoever, except that the Agent or such other
Person, as the case may be, may be liable for losses due to its willful
misconduct or gross negligence.
15.4. No Representations. The Agent shall not be responsible for the
------------------
execution or validity or enforceability of this Credit Agreement, the Revolving
Credit Notes, any of the other Loan Documents or any instrument at any time
constituting, or intended to constitute, collateral security for the Revolving
Credit Notes, or for the value of any such collateral security or for the
validity, enforceability or collectability of any such amounts owing with
respect to the Revolving Credit Notes, or for any recitals or statements,
warranties or representations made herein or in any of the other Loan Documents
or in any certificate or instrument hereafter furnished to it by or on behalf of
Holdings, the Borrower or any of their Subsidiaries, or be bound to ascertain or
inquire as to the performance or observance of any of the terms, conditions,
covenants or agreements herein or in any instrument at any time constituting, or
intended to constitute, collateral security for the Revolving Credit Notes or to
inspect any of the properties, books or records of Holdings, the Borrower or any
of their Subsidiaries. The Agent shall not be bound to ascertain whether any
-23-
notice, consent, waiver or request delivered to it by the Borrower or any holder
of any of the Revolving Credit Notes shall have been duly authorized or is true,
accurate and complete. The Agent has not made nor does it now make any
representations or warranties, express or implied, nor does it assume any
liability to the Banks, with respect to the credit worthiness or financial
conditions of Holdings, the Borrower or any of their Subsidiaries. Each Bank
acknowledges that it has, independently and without reliance upon the Agent or
any other Bank, and based upon such information and documents as it has deemed
appropriate, made its own credit analysis and decision to enter into this Credit
Agreement.
15.5. Payments.
--------
15.5.1. Payments to Agent. A payment by the Borrower to the Agent
-----------------
hereunder or any of the other Loan Documents for the account of any Bank
shall constitute a payment to such Bank. The Agent agrees promptly to
distribute to each Bank such Bank's pro rata share of payments received by
--- ----
the Agent for the account of the Banks except as otherwise expressly
provided herein or in any of the other Loan Documents.
15.5.2. Distribution by Agent. If in the opinion of the Agent the
---------------------
distribution of any amount received by it in such capacity hereunder, under
the Revolving Credit Notes or under any of the other Loan Documents might
involve it in liability, it may refrain from making distribution until its
right to make distribution shall have been adjudicated by a court of
competent jurisdiction. If a court of competent jurisdiction shall adjudge
that any amount received and distributed by the Agent is to be repaid, each
Person to whom any such distribution shall have been made shall either
repay to the Agent its proportionate share of the amount so adjudged to be
repaid or shall pay over the same in such manner and to such Persons as
shall be determined by such court.
15.5.3. Delinquent Banks. Notwithstanding anything to the contrary
----------------
contained in this Credit Agreement or any of the other Loan Documents, any
Bank that fails (i) to make available to the Agent its pro rata share of
any Revolving Credit Loan or (ii) to comply with the provisions of (S)14
with respect to making dispositions and arrangements with the other Banks,
where such Bank's share of any payment received, whether by setoff or
otherwise, is in excess of its pro rata share of such payments due and
--- ----
payable to all of the Banks, in each case as, when and to the full extent
required by the provisions of this Credit Agreement, shall be deemed
delinquent (a "Delinquent Bank") and shall be deemed a Delinquent Bank
until such time as such delinquency is satisfied. A Delinquent Bank shall
be deemed to have assigned any and all payments due to it from the
Borrower, whether on account of outstanding Revolving Credit Loans,
interest, fees or otherwise, to the remaining nondelinquent Banks for
application to, and reduction of, their respective pro rata shares of all
--- ----
outstanding Revolving Credit Loans. The Delinquent Bank hereby authorizes
the Agent to distribute such payments to the nondelinquent Banks in
proportion to their respective pro rata shares of all outstanding Revolving
--- ----
Credit Loans. A Delinquent Bank shall be deemed to have satisfied in full a
delinquency when and if, as a result of application of the assigned
payments to all outstanding
-24-
Revolving Credit Loans of the nondelinquent Banks, the Banks' respective
pro rata shares of all outstanding Revolving Credit Loans have returned to
--- ----
those in effect immediately prior to such delinquency and without giving
effect to the nonpayment causing such delinquency.
15.6. Holders of Revolving Credit Notes. The Agent may deem and treat the
---------------------------------
payee of any Revolving Credit Note as the absolute owner or purchaser thereof
for all purposes hereof until it shall have been furnished in writing with a
different name by such payee or by a subsequent holder, assignee or transferee.
15.7. Indemnity. The Banks ratably agree hereby to indemnify and hold
---------
harmless the Agent and its affiliates from and against any and all claims,
actions and suits (whether groundless or otherwise), losses, damages, costs,
expenses (including any expenses for which the Agent has not been reimbursed by
the Borrower as required by (S)16), and liabilities of every nature and
character arising out of or related to this Credit Agreement, the Revolving
Credit Notes, or any of the other Loan Documents or the transactions
contemplated or evidenced hereby or thereby, or the Agent's actions taken
hereunder or thereunder, except to the extent that any of the same shall be
directly caused by the Agent's willful misconduct or gross negligence.
15.8. Agent as Bank. In its individual capacity, BKB shall have the same
-------------
obligations and the same rights, powers and privileges in respect to its
Commitment and the Revolving Credit Loans made by it, and as the holder of any
of the Revolving Credit Notes as it would have were it not also the Agent.
15.9. Resignation. The Agent may resign at any time by giving sixty (60)
-----------
days prior written notice thereof to the Banks and the Borrower. Upon any such
resignation, the Majority Banks shall have the right to appoint a successor
Agent. Unless a Default or Event of Default shall have occurred and be
continuing, such successor Agent shall be reasonably acceptable to the Borrower.
If no successor Agent shall have been so appointed by the Majority Banks and
shall have accepted such appointment within thirty (30) days after the retiring
Agent's giving of notice of resignation, then the retiring Agent may, on behalf
of the Banks, appoint a successor Agent, which shall be a financial institution
having a rating of not less than A or its equivalent by Standard & Poor's
Corporation. Upon the acceptance of any appointment as Agent hereunder by a
successor Agent, such successor Agent shall thereupon succeed to and become
vested with all the rights, powers, privileges and duties of the retiring Agent,
and the retiring Agent shall be discharged from its duties and obligations
hereunder. After any retiring Agent's resignation, the provisions of this
Credit Agreement and the other Loan Documents shall continue in effect for its
benefit in respect of any actions taken or omitted to be taken by it while it
was acting as Agent.
15.10. Notification of Defaults and Events of Default. Each Bank hereby
----------------------------------------------
agrees that, upon learning of the existence of a Default or an Event of Default,
it shall promptly notify the Agent thereof. The Agent hereby agrees that upon
receipt of any notice under this (S)15.10 it shall promptly notify the other
Banks of the existence of such Default or Event of Default.
-25-
15.11. Duties in the Case of Enforcement. In case one of more Events of
---------------------------------
Default have occurred and shall be continuing, and whether or not acceleration
of the Obligations shall have occurred, the Agent shall, if (a) so requested by
the Majority Banks and (b) the Banks have provided to the Agent such additional
indemnities and assurances against expenses and liabilities as the Agent may
reasonably request, proceed to enforce the provisions of the Security Documents
authorizing the sale or other disposition of all or any part of the Collateral
and exercise all or any such other legal and equitable and other rights or
remedies as it may have in respect of such Collateral. The Majority Banks may
direct the Agent in writing as to the method and the extent of any such sale or
other disposition, the Banks hereby agreeing to indemnify and hold the Agent,
harmless from all liabilities incurred in respect of all actions taken or
omitted in accordance with such directions, provided that the Agent need not
--------
comply with any such direction to the extent that the Agent reasonably believes
the Agent's compliance with such direction to be unlawful or commercially
unreasonable in any applicable jurisdiction.
16. EXPENSES.
--------
Whether or not the transactions contemplated hereby shall be consummated,
and subject to (S)8.9.3 of the Revolver Credit Agreement, the Borrower promises
to pay (a) the reasonable costs of (i) producing and reproducing this Credit
Agreement, the other Loan Documents and the other agreements and instruments
mentioned herein and (ii) any taxes (including any interest and penalties in
respect thereto), filing fees or recording fees or taxes payable by any Bank
(other than taxes based upon the Bank's net income) on or with respect to the
transactions contemplated by this Credit Agreement or the other Loan Documents
(the Borrower hereby agreeing to indemnify each Bank with respect thereto), (b)
the documented fees, expenses and disbursements of the Agent's Special Counsel
or any local counsel to the Agent incurred in connection with the preparation of
this Credit Agreement, the other Loan Documents and other instruments mentioned
herein, each closing hereunder, amendments, modifications, approvals, consents
or waivers hereto or hereunder and the syndication and the termination hereof,
(c) all reasonable fees, expenses and disbursements incurred by BKB or its
affiliates in connection with the syndication of its Commitment hereunder,
provided that the Borrower shall not bear the costs of syndication hereunder
--------
which are in excess of $5,000; and (d) all out-of-pocket expenses (including
reasonable attorneys' fees and costs), incurred by any Bank, its affiliates or
the Agent or its affiliates in connection with (i) the enforcement of or
preservation of rights under any this Credit Agreement, the Revolving Credit
Notes and the other Loan Documents against Holdings, the Borrower or any of
their Subsidiaries or the administration thereof after the occurrence of a
Default or Event of Default and (ii) in connection with any litigation,
proceeding or dispute whether arising hereunder or under the other Loan Document
or arising out of the transactions contemplated hereby or thereby. The
covenants of this (S)16 shall survive payment or satisfaction of all other
Obligations.
17. INDEMNIFICATION.
---------------
The Borrower further agrees to indemnify and hold harmless the Agent and
the Banks as well as each such Person's shareholders, directors, agents,
officers, Subsidiaries and affiliates, from and against all damages, losses,
settlement payments,
-26-
obligations, liabilities, claims, actions or causes of action, and costs and
expenses incurred, suffered, sustained or required to be paid by an indemnified
party by reason of or resulting from the transactions contemplated hereby,
except any of the foregoing which result from the gross negligence or willful
misconduct of the indemnified party. In any investigation, proceeding or
litigation, or the preparation therefor, each Bank and the Agent shall be
entitled to select its own counsel and, in addition to the foregoing indemnity,
the Borrower agrees to pay promptly the fees and expenses of such counsel. If,
and to the extent that the obligations of the Borrower under this (S)17 are
unenforceable for any reason, the Borrower hereby agrees to make the maximum
contribution to the payment in satisfaction of such obligations which is
permissible under applicable law. The covenants contained in this (S)17 shall
survive payment or satisfaction in full of all other Obligations.
18. SURVIVAL OF COVENANTS, ETC.
--------------------------
All covenants, agreements, representations and warranties made herein, in
the Revolving Credit Notes, in any of the other Loan Documents or in any
documents or other papers delivered by or on behalf of Holdings, the Borrower or
any of their Subsidiaries pursuant hereto shall be deemed to have been relied
upon by the Banks and the Agent, notwithstanding any investigation heretofore or
hereafter made by any of them, and shall survive the making by the Banks of any
of the Revolving Credit Loans as herein contemplated, and shall continue in full
force and effect so long as any amount due under this Credit Agreement or the
Revolving Credit Notes or any of the other Loan Documents remains outstanding or
any Bank has any obligation to make any Revolving Credit Loans, and for such
further time as may be otherwise expressly specified in this Credit Agreement.
All statements contained in any certificate or other paper delivered to any Bank
or the Agent at any time by or on behalf of Holdings, the Borrower or any of
their Subsidiaries pursuant hereto or in connection with the transactions
contemplated hereby shall constitute representations and warranties by Holdings,
the Borrower or such Subsidiary hereunder.
19. ASSIGNMENT AND PARTICIPATION.
----------------------------
19.1. Conditions to Assignment by Banks. Except as provided herein, each
---------------------------------
Bank may assign to one or more Eligible Assignees all or a portion of its
interests, rights and obligations under this Credit Agreement (including all or
a portion of its Commitment Percentage with respect to Revolving Credit Loans
and the same portion of the Revolving Credit Loans at the time owing to it, the
Revolving Credit Notes held by it); provided that (a) each of the Agent and the
-------- ----
Borrower shall have given its prior written consent to such assignment, which
consent, in the case of the Borrower, will not be unreasonably withheld, (b)
each such assignment shall be of a constant, and not a varying, percentage of
all the assigning Bank's rights and obligations in respect of the Revolving
Credit Loans under this Credit Agreement, (c) each assignment shall be in an
amount of no less than $5,000,000, or, if less, the entire remaining amount of
the assigning Bank's interest in the Revolving Credit Loans, or a larger
integral multiple of $1,000,000, (d) each such assignment shall be effected
simultaneously with a pro rata assignment of such Bank's interests, rights and
--- ----
obligations under the Revolver Credit Agreement to such Eligible Assignee; and
(e) the parties to such assignment shall execute and deliver to the Agent, for
recording in the Register (as hereinafter
-27-
defined), an Assignment and Acceptance, substantially in the form of Exhibit C
---------
hereto (an "Assignment and Acceptance"), together with any Revolving Credit
Notes subject to such assignment. Upon such execution, delivery, acceptance and
recording, from and after the effective date specified in each Assignment and
Acceptance, which effective date shall be at least five (5) Business Days after
the execution thereof, (i) the assignee thereunder shall be a party hereto and,
to the extent provided in such Assignment and Acceptance, have the rights and
obligations of a Bank hereunder, and (ii) the assigning Bank shall, to the
extent provided in such assignment and upon payment to the Agent of the
registration fee referred to in (S)19.3, be released from its obligations under
this Credit Agreement.
19.2. Certain Representations and Warranties; Limitations; Covenants. By
--------------------------------------------------------------
executing and delivering an Assignment and Acceptance, the parties to the
assignment thereunder confirm to and agree with each other and the other parties
hereto as follows:
(a) other than the representation and warranty that it is the legal
and beneficial owner of the interest being assigned thereby free and clear
of any adverse claim, the assigning Bank makes no representation or
warranty, express or implied, and assumes no responsibility with respect to
any statements, warranties or representations made in or in connection with
this Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement, the other Loan
Documents or any other instrument or document furnished pursuant hereto or
the attachment, perfection or priority of any security interest or
mortgage,
(b) the assigning Bank makes no representation or warranty and
assumes no responsibility with respect to the financial condition of the
Borrower and its Subsidiaries or any other Person primarily or secondarily
liable in respect of any of the Obligations, or the performance or
observance by the Borrower and its Subsidiaries or any other Person
primarily or secondarily liable in respect of any of the Obligations of any
of their obligations under this Credit Agreement or any of the other Loan
Documents or any other instrument or document furnished pursuant hereto or
thereto;
(c) such assignee confirms that it has received a copy of this
Credit Agreement, together with copies of the most recent financial
statements referred to in (S)(S)7.4 and 8.4 of the Revolver Credit
Agreement and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into such
Assignment and Acceptance;
(d) such assignee will, independently and without reliance upon the
assigning Bank, the Agent or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Credit
Agreement;
(e) such assignee represents and warrants that it is an Eligible
Assignee and that, on the effective date of such Assignment and Acceptance,
the
-28-
circumstances described in (S)(S)5.7 and 5.8 hereof are not applicable
to such assignee;
(f) such assignee appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under this Credit
Agreement and the other Loan Documents as are delegated to the Agent by the
terms hereof or thereof, together with such powers as are reasonably
incidental thereto;
(g) such assignee agrees that it will perform in accordance with
their terms all of the obligations that by the terms of this Credit
Agreement are required to be performed by it as a Bank; and
(h) such assignee represents and warrants that it is legally
authorized to enter into such Assignment and Acceptance.
19.3. Register. The Agent shall maintain a copy of each Assignment and
--------
Acceptance delivered to it and a register or similar list (the "Register") for
the recordation of the names and addresses of the Banks and the Commitment
Percentage of, and principal amount of the Revolving Credit Loans owing to the
Banks from time to time. The entries in the Register shall be conclusive, in the
absence of manifest error, and the Borrower, the Agent and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower and the Banks at any reasonable time and from time to
time upon reasonable prior notice. Upon each such recordation, the assigning
Bank agrees to pay to the Agent a registration fee as set forth in (S)19.3 of
the Revolver Credit Agreement.
19.4. New Revolving Credit Notes. Upon its receipt of an Assignment and
--------------------------
Acceptance executed by the parties to such assignment, together with each
Revolving Credit Note subject to such assignment, the Agent shall (a) record the
information contained therein in the Register, and (b) give prompt notice
thereof to the Borrower and the Banks (other than the assigning Bank). Within
five (5) Business Days after receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Agent, in exchange for each
surrendered Revolving Credit Note, a new Revolving Credit Note to the order of
such Eligible Assignee in an amount equal to the amount assumed by such Eligible
Assignee pursuant to such Assignment and Acceptance and, if the assigning Bank
has retained some portion of its obligations hereunder, a new Revolving Credit
Note to the order of the assigning Bank in an amount equal to the amount
retained by it hereunder. Such new Revolving Credit Notes shall provide that
they are replacements for the surrendered Revolving Credit Notes, shall be in an
aggregate principal amount equal to the aggregate principal amount of the
surrendered Revolving Credit Notes, shall be dated the effective date of such an
Assignment and Acceptance and shall otherwise be substantially the form of the
assigned Revolving Credit Notes. Within five (5) days of issuance of any new
Revolving Credit Notes pursuant to this (S)19.4, the Borrower shall, if
requested by the assigning Bank or the assignee Bank, deliver an opinion of
counsel, addressed to the Banks and the Agent, relating to the due
authorization, execution and delivery of such new Revolving Credit Notes and the
legality, validity and binding effect thereof, in form and substance
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satisfactory to the Banks. The surrendered Revolving Credit Notes shall be
cancelled and returned to the Borrower.
19.5. Participations. Each Bank may sell participations to one or more
--------------
banks or other entities in all or a portion of such Bank's rights and
obligations under this Credit Agreement and the other Loan Documents (including
the Revolver Credit Agreement); provided that (a) each such participation shall
--------
be in an amount of not less than $5,000,000, (b) any such sale or participation
shall not affect the rights and duties of the selling Bank hereunder to the
Borrower, (c) each such sale or participation shall be effected simultaneously
with a pro rata sale or participation of such Bank's rights and obligations
--- ----
under the Revolver Credit Agreement; and (d) the only rights granted to the
participant pursuant to such participation arrangements with respect to waivers,
amendments or modifications of the Loan Documents shall be the rights to approve
waivers, amendments or modifications that would forgive any principal of or
reduce the interest rate on any Revolving Credit Loans, extend the term or
increase the amount of the Commitment of such Bank as it relates to such
participant, reduce the amount of any commitment fees to which such participant
is entitled or extend any regularly scheduled payment date for principal or
interest.
19.6. Disclosure. The Borrower agrees that in addition to disclosures
----------
made in accordance with standard and customary banking practices any Bank may
disclose information obtained by such Bank pursuant to this Credit Agreement to
assignees or participants and potential assignees or participants hereunder;
provided that such assignees or participants or potential assignees or
--------
participants shall agree (a) to treat in confidence such information unless such
information otherwise becomes public knowledge, (b) not to disclose such
information to a third party, except as required by law or legal process and (c)
not to make use of such information for purposes of transactions unrelated to
such contemplated assignment or participation.
19.7. Assignee or Participant Affiliated with the Borrower. If any
----------------------------------------------------
assignee Bank is an Affiliate of the Borrower, then any such assignee Bank shall
have no right to vote as a Bank hereunder or under any of the other Loan
Documents for purposes of granting consents or waivers or for purposes of
agreeing to amendments or other modifications to any of the Loan Documents or
for purposes of making requests to the Agent pursuant to (S)13.1 or (S)13.2, and
the determination of the Majority Banks shall for all purposes of this Credit
Agreement and the other Loan Documents be made without regard to such assignee
Bank's interest in any of the Revolving Credit Loans. If any Bank sells a
participating interest in any of the Revolving Credit Loans to a participant,
and such participant is the Borrower or an Affiliate of the Borrower, then such
transferor Bank shall promptly notify the Agent of the sale of such
participation. A transferor Bank shall have no right to vote as a Bank
hereunder or under any of the other Loan Documents for purposes of granting
consents or waivers or for purposes of agreeing to amendments or modifications
to any of the Loan Documents or for purposes of making requests to the Agent
pursuant to (S)13.1 or (S)13.2 to the extent that such participation is
beneficially owned by the Borrower or any Affiliate of the Borrower, and the
determination of the Majority Banks shall for all purposes of this Agreement and
the other Loan Documents be made without regard to the interest of such
transferor Bank in the Revolving Credit Loans to the extent of such
participation.
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19.8. Miscellaneous Assignment Provisions. Any assigning Bank shall
-----------------------------------
retain its rights to be indemnified pursuant to (S)17 with respect to any claims
or actions arising prior to the date of such assignment. If any assignee Bank
is not incorporated under the laws of the United States of America or any state
thereof, it shall, prior to the date on which any interest or fees are payable
hereunder or under any of the other Loan Documents for its account, deliver to
the Borrower and the Agent certification as to its exemption from deduction or
withholding of any United States federal income taxes. If BKB transfers all of
its interest, rights and obligations under this Credit Agreement, the Agent
shall, in consultation with the Borrower and with the consent of the Borrower
and the Majority Banks, appoint another Bank to act as the Reference Bank
hereunder. Anything contained in this (S)19 to the contrary notwithstanding,
any Bank may at any time pledge all or any portion of its interest and rights
under this Credit Agreement (including all or any portion of its Revolving
Credit Notes) to any of the twelve Federal Reserve Banks organized under (S)4 of
the Federal Reserve Act, 12 U.S.C. (S)341. No such pledge or the enforcement
thereof shall release the pledgor Bank from its obligations hereunder or under
any of the other Loan Documents.
19.9. Assignment by Borrower. The Borrower shall not assign or transfer any
----------------------
of its rights or obligations under any of the Loan Documents without the
prior written consent of each of the Banks.
20. NOTICES, ETC.
------------
Except as otherwise expressly provided in this Credit Agreement, all
notices and other communications made or required to be given pursuant to this
Credit Agreement or the Revolving Credit Notes shall be in writing and shall be
delivered in hand, mailed by United States registered or certified first class
mail, postage prepaid, sent by overnight courier, or sent by telegraph,
telecopy, facsimile or telex and confirmed by delivery via courier or postal
service, addressed as follows:
(a) if to the Borrower, at 0000 Xxxxxxxxxx Xxxxx, Xxxxx 0000,
Xxxxxxxxxxx, Xxxxxxxx 00000, Attention: Xxxx Xxxxxx, or at such other
address for notice as the Borrower shall last have furnished in writing to
the Person giving the notice;
(b) if to the Agent, at 000 Xxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxxxxxxx
00000, XXX, Attention: Xxxxx van der Xxxxx, Vice President or such other
address for notice as the Agent shall last have furnished in writing to the
Person giving the notice; and
(c) if to any Bank, at such Bank's address set forth on Schedule 1
-------- -
hereto, or such other address for notice as such Bank shall have last
furnished in writing to the Person giving the notice.
Any such notice or demand shall be deemed to have been duly given or made
and to have become effective (i) if delivered by hand, overnight courier or
facsimile to a responsible officer of the party to which it is directed, at the
time of the receipt thereof by such officer or the sending of such facsimile and
(ii) if sent by registered or certified
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first-class mail, postage prepaid, on the third Business Day following the
mailing thereof.
21. GOVERNING LAW.
-------------
THIS CREDIT AGREEMENT AND, EXCEPT AS OTHERWISE SPECIFICALLY PROVIDED
THEREIN, EACH OF THE OTHER LOAN DOCUMENTS ARE CONTRACTS UNDER THE LAWS OF THE
COMMONWEALTH OF MASSACHUSETTS AND SHALL FOR ALL PURPOSES BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAWS OF SAID COMMONWEALTH OF MASSACHUSETTS
(EXCLUDING THE LAWS APPLICABLE TO CONFLICTS OR CHOICE OF LAW). THE BORROWER
AGREES THAT ANY SUIT FOR THE ENFORCEMENT OF THIS CREDIT AGREEMENT OR ANY OF THE
OTHER LOAN DOCUMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON THE BORROWER BY MAIL AT THE ADDRESS SPECIFIED IN (S)20. THE
BORROWER HEREBY WAIVES ANY OBJECTION THAT IT MAY NOW OR HEREAFTER HAVE TO THE
VENUE OF ANY SUCH SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN
INCONVENIENT COURT.
22. HEADINGS.
--------
The captions in this Credit Agreement are for convenience of reference only
and shall not define or limit the provisions hereof.
23. COUNTERPARTS.
------------
This Credit Agreement and any amendment hereof may be executed in several
counterparts and by each party on a separate counterpart, each of which when
executed and delivered shall be an original, and all of which together shall
constitute one instrument. In proving this Credit Agreement it shall not be
necessary to produce or account for more than one such counterpart signed by the
party against whom enforcement is sought.
24. ENTIRE AGREEMENT, ETC.
---------------------
The Loan Documents and any other documents executed in connection herewith
or therewith express the entire understanding of the parties with respect to the
transactions contemplated hereby. Neither this Credit Agreement nor any term
hereof may be changed, waived, discharged or terminated, except as provided in
(S)26.
25. WAIVER OF JURY TRIAL.
--------------------
Each of Holdings and the Borrower hereby waives its right to a jury trial
with respect to any action or claim arising out of any dispute in connection
with this Credit Agreement, the Revolving Credit Notes or any of the other Loan
Documents, any rights
-32-
or obligations hereunder or thereunder or the performance of which rights and
obligations. Except as prohibited by law, each of Holdings and the Borrower
hereby waives any right it may have to claim or recover in any litigation
referred to in the preceding sentence any special, exemplary, punitive or
consequential damages or any damages other than, or in addition to, actual
damages. Each of Holdings and the Borrower (a) certifies that no representative,
agent or attorney of any Bank or the Agent has represented, expressly or
otherwise, that such Bank or the Agent would not, in the event of litigation,
seek to enforce the foregoing waivers and (b) acknowledges that the Agent and
the Banks have been induced to enter into this Credit Agreement, the other Loan
Documents to which it is a party and the Subordination Documents to which it is
a party by, among other things, the waivers and certifications contained herein.
26. CONSENTS, AMENDMENTS, WAIVERS, ETC.
----------------------------------
Any consent or approval required or permitted by this Credit Agreement to
be given by all of the Banks may be given, and any term of this Credit
Agreement, the other Loan Documents or any other instrument related hereto or
mentioned herein may be amended, and the performance or observance by Holdings,
the Borrower or any of their Subsidiaries of any terms of this Credit Agreement,
the other Loan Documents or such other instrument or the continuance of any
Default or Event of Default may be waived (either generally or in a particular
instance and either retroactively or prospectively) with, but only with, the
written consent of the Borrower and the written consent of the Majority Banks.
Notwithstanding the foregoing, the rate of interest on the Revolving Credit
Notes, the maturity of or extension of scheduled payments on the Revolving
Credit Notes, the release of all or substantially all of the Collateral, the
amount of the Commitments of the Banks and the amount of the commitment fee
hereunder may not be changed without the written consent of the Borrower and the
written consent of each Bank; the definition of Majority Banks and this (S)26
may not be amended without the written consent of all of the Banks; and the
amount of the Agent's Fee or any Letter of Credit Fees payable for the Agent's
account and (S)16 may not be amended without the written consent of the Agent.
No waiver shall extend to or affect any obligation not expressly waived or
impair any right consequent thereon. No course of dealing or delay or omission
on the part of the Agent or any Bank in exercising any right shall operate as a
waiver thereof or otherwise be prejudicial thereto. No notice to or demand upon
the Borrower shall entitle the Borrower to other or further notice or demand in
similar or other circumstances.
27. SEVERABILITY.
------------
The provisions of this Credit Agreement are severable and if any one clause
or provision hereof shall be held invalid or unenforceable in whole or in part
in any jurisdiction, then such invalidity or unenforceability shall affect only
such clause or provision, or part thereof, in such jurisdiction, and shall not
in any manner affect such clause or provision in any other jurisdiction, or any
other clause or provision of this Credit Agreement in any jurisdiction.
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28. SURVIVAL OF REVOLVER CREDIT AGREEMENT.
-------------------------------------
If for any reason the Revolver Credit Agreement is terminated prior to the
termination of this Credit Agreement, all provisions of the Revolver Credit
Agreement incorporated and referred to herein shall be deemed to continue in
effect for purposes of this Credit Agreement.
-34-
IN WITNESS WHEREOF, the undersigned have duly executed this Acquisition
Revolving Credit Agreement as a sealed instrument as of the date first set forth
above.
NATIONAL RESTAURANT ENTERPRISES, INC.
By: _________________________________
Name:
Title:
AMERIKING, INC.
By: __________________________________
Name:
Title:
BANKBOSTON, N.A., individually and as
Agent
By: __________________________________
Name:
Title:
By:
PARIBAS
By: __________________________________
Name:
Title
By:
CREDIT AGRICOLE INDOSUEZ
By: __________________________________
Name:
Title:
By:
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DEUTSCHE FINANCIAL SERVICES CORPORATION
By: ______________________________________
Name:
Title:
By:
XXXXXX FINANCIAL, INC.
By: ______________________________________
Name:
Title:
By:
LASALLE NATIONAL BANK
By: ______________________________________
Name:
Title:
By:
SANWA BUSINESS CREDIT CORPORATION
By: ______________________________________
Name:
Title:
By:
Schedule 1
----------
Bank Address; Commitment; Commitment Percentage
Revolving Credit Commitment
Bank Loan Commitment Percentage
================================================================================
BankBoston, N.A.
000 Xxxxxxx Xxxxxx $23,940,000 53.2%
Xxxxxx, XX 00000
Attn: Xxxxx van der Xxxxx
Paribas
000 Xxxxxxx Xxxxxx $ 3,510,000 7.80%
Xxx Xxxx, XX 00000
Attn: Xxxx XxXxxxxxx
Credit Agricole Indosuez
Corporate Banking Department $ 3,510,000 7.80%
00 Xxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx
Deutsche Financial Services
Corporation $ 3,510,000 7.80%
0000 Xxxxxxxxxx Xxxx.
Xxxxxxx, Xxxxxxx 00000
Attn: Xxxxxxx Xxxxx
Xxxxxx Financial, Inc.
000 Xxxx Xxxxxx, 00xx Xxxxx $ 3,510,000 7.80%
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxx Xxxxx
LaSalle National Bank
000 X. XxXxxxx Xxxxxx $ 3,510,000 7.80%
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Sanwa Business Credit
Corporation
One South Xxxxxx Drive $ 3,510,000 7.80%
Xxxxxxx, Xxxxxxxx 00000
Attn: Xxxxx Xxxxxxxxxx
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