CREDIT AGREEMENT Dated as of March 15, 2007 among BENIHANA INC. as Borrower, and CERTAIN SUBSIDIARIES OF THE BORROWER FROM TIME TO TIME PARTY HERETO, as Guarantors, THE SEVERAL LENDERS FROM TIME TO TIME PARTY HERETO and WACHOVIA BANK, NATIONAL...
Exhibit
10.1
Dated
as
of March 15, 2007
among
as
Borrower,
and
CERTAIN
SUBSIDIARIES OF THE BORROWER
FROM
TIME
TO TIME PARTY HERETO,
as
Guarantors,
THE
SEVERAL LENDERS
FROM
TIME
TO TIME PARTY HERETO
and
WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Agent
Prepared
by:
TABLE
OF CONTENTS
Page
|
|||
SECTION
1 DEFINITIONS
|
1
|
||
1.1
|
Definitions.
|
1
|
|
1.2
|
Computation
of Time Periods.
|
23
|
|
1.3
|
Accounting
Terms.
|
23
|
|
1.4
|
Execution
of Documents.
|
24
|
|
SECTION
2 CREDIT
FACILITIES
|
24
|
||
2.1
|
Sweep
Plus Revolving Loans.
|
25
|
|
2.2
|
Non-Sweep
Revolving Loans.
|
27
|
|
2.3
|
Letter
of Credit Subfacility.
|
27
|
|
SECTION
3 OTHER
PROVISIONS RELATING TO CREDIT FACILITIES
|
33
|
||
3.1
|
Default
Rate.
|
33
|
|
3.2
|
Extension
and Conversion.
|
33
|
|
3.3
|
Prepayments.
|
34
|
|
3.4
|
Termination
and Reduction of Revolving Committed Amount.
|
35
|
|
3.5
|
Fees.
|
35
|
|
3.6
|
Capital
Adequacy.
|
36
|
|
3.7
|
Limitation
on Eurodollar Loans.
|
37
|
|
3.8
|
Illegality.
|
37
|
|
3.9
|
Requirements
of Law.
|
38
|
|
3.10
|
Treatment
of Affected Loans.
|
39
|
|
3.11
|
Taxes.
|
40
|
|
3.12
|
Compensation.
|
41
|
|
3.13
|
Pro
Rata Treatment.
|
42
|
|
3.14
|
Sharing
of Payments.
|
43
|
|
3.15
|
Payments,
Computations, Etc.
|
44
|
|
3.16
|
Evidence
of Debt.
|
45
|
|
3.17
|
Replacement
Lenders.
|
46
|
|
3.18
|
Non-Receipt
of Funds by the Administrative Agent.
|
47
|
|
3.19
|
Inability
to Determine Interest Rate.
|
48
|
|
3.20
|
Yield
Protection.
|
48
|
|
SECTION
4 GUARANTY
|
50
|
||
4.1
|
The
Guaranty.
|
50
|
|
4.2
|
Obligations
Unconditional.
|
50
|
|
4.3
|
Reinstatement.
|
51
|
|
4.4
|
Certain
Additional Waivers.
|
52
|
|
4.5
|
Remedies.
|
52
|
|
4.6
|
Rights
of Contribution.
|
53
|
|
4.7
|
Continuing
Guarantee.
|
53
|
|
SECTION
5 CONDITIONS
|
54
|
||
5.1
|
Closing
Conditions.
|
54
|
|
5.2
|
Conditions
to all Extensions of Credit.
|
57
|
i
SECTION
6 REPRESENTATIONS
AND WARRANTIES
|
58
|
||
6.1
|
Financial
Condition.
|
58
|
|
6.2
|
No
Material Change.
|
59
|
|
6.3
|
Organization
and Good Standing.
|
59
|
|
6.4
|
Power;
Authorization; Enforceable Obligations.
|
59
|
|
6.5
|
No
Conflicts.
|
60
|
|
6.6
|
No
Default.
|
60
|
|
6.7
|
Ownership.
|
60
|
|
6.8
|
Indebtedness.
|
60
|
|
6.9
|
Litigation.
|
60
|
|
6.10
|
Taxes.
|
61
|
|
6.11
|
Compliance
with Law.
|
61
|
|
6.12
|
ERISA.
|
61
|
|
6.13
|
Subsidiaries.
|
62
|
|
6.14
|
Governmental
Regulations, Etc.
|
62
|
|
6.15
|
Purpose
of Loans and Letters of Credit.
|
63
|
|
6.16
|
Environmental
Matters.
|
64
|
|
6.17
|
Intellectual
Property.
|
65
|
|
6.18
|
Solvency.
|
65
|
|
6.19
|
Investments.
|
65
|
|
6.20
|
Location
of Collateral.
|
65
|
|
6.21
|
Disclosure.
|
65
|
|
6.22
|
No
Burdensome Restrictions.
|
65
|
|
6.23
|
Brokers’
Fees.
|
66
|
|
6.24
|
Labor
Matters.
|
66
|
|
6.25
|
Anti-Terrorism
Laws.
|
66
|
|
6.26
|
Compliance
with OFAC Rules and Regulations.
|
66
|
|
6.27
|
Compliance
with FCPA.
|
66
|
|
SECTION
7 AFFIRMATIVE
COVENANTS
|
67
|
||
7.1
|
Information
Covenants.
|
67
|
|
7.2
|
Preservation
of Existence and Franchises.
|
70
|
|
7.3
|
Books
and Records.
|
70
|
|
7.4
|
Compliance
with Law.
|
70
|
|
7.5
|
Payment
of Taxes and Other Indebtedness.
|
70
|
|
7.6
|
Insurance.
|
70
|
|
7.7
|
Maintenance
of Property.
|
71
|
|
7.8
|
Performance
of Obligations.
|
71
|
|
7.9
|
Use
of Proceeds.
|
71
|
|
7.10
|
Audits/Inspections.
|
71
|
|
7.11
|
Financial
Covenants.
|
71
|
|
7.12
|
Additional
Credit Parties.
|
72
|
|
7.13
|
Pledged
Assets.
|
72
|
|
7.14
|
Landlord
Waivers.
|
73
|
|
7.15
|
Post-Closing
Requirements; Further Assurances.
|
73
|
|
SECTION
8 NEGATIVE
COVENANTS
|
74
|
||
8.1
|
Indebtedness.
|
74
|
ii
8.2
|
Liens.
|
74
|
|
8.3
|
Nature
of Business.
|
75
|
|
8.4
|
Consolidation,
Merger, Dissolution, etc.
|
75
|
|
8.5
|
Asset
Dispositions.
|
75
|
|
8.6
|
Investments.
|
76
|
|
8.7
|
Restricted
Payments.
|
76
|
|
8.8
|
Transactions
with Affiliates.
|
76
|
|
8.9
|
Fiscal
Year; Organizational Documents.
|
77
|
|
8.10
|
Limitation
on Restricted Actions.
|
77
|
|
8.11
|
Ownership
of Subsidiaries.
|
77
|
|
8.12
|
Sale
Leasebacks.
|
78
|
|
8.13
|
[Reserved].
|
78
|
|
8.14
|
Stock
Purchase Agreement.
|
78
|
|
SECTION
9 EVENTS
OF DEFAULT
|
78
|
||
9.1
|
Events
of Default.
|
78
|
|
9.2
|
Acceleration;
Remedies.
|
81
|
|
SECTION
10 AGENCY
PROVISIONS
|
82
|
||
10.1
|
Appointment,
Powers and Immunities.
|
82
|
|
10.2
|
Reliance
by Agent.
|
82
|
|
10.3
|
Defaults.
|
83
|
|
10.4
|
Rights
as a Lender.
|
83
|
|
10.5
|
Indemnification.
|
83
|
|
10.6
|
Non-Reliance
on Agent and Other Lenders.
|
84
|
|
10.7
|
Successor
Agent.
|
84
|
|
SECTION
11 MISCELLANEOUS
|
85
|
||
11.1
|
Notices.
|
85
|
|
11.2
|
Right
of Set-Off; Adjustments.
|
85
|
|
11.3
|
Benefit
of Agreement.
|
85
|
|
11.4
|
No
Waiver; Remedies Cumulative.
|
87
|
|
11.5
|
Expenses;
Indemnification.
|
88
|
|
11.6
|
Amendments,
Waivers and Consents.
|
89
|
|
11.7
|
Counterparts.
|
90
|
|
11.8
|
Headings.
|
90
|
|
11.9
|
Survival.
|
90
|
|
11.10
|
Governing
Law; Submission to Jurisdiction; Venue.
|
90
|
|
11.11
|
Severability.
|
91
|
|
11.12
|
Entirety.
|
91
|
|
11.13
|
Binding
Effect; Termination.
|
92
|
|
11.14
|
Source
of Funds.
|
92
|
|
11.15
|
Conflict.
|
93
|
|
11.16
|
Arbitration;
Consent to Jurisdiction and Service of Process.
|
93
|
|
11.17
|
Confidentiality.
|
94
|
|
11.18
|
Waivers
of Jury Trial; Waiver of Consequential Damages.
|
95
|
|
11.19
|
Patriot
Act Notice.
|
95
|
|
11.20
|
Continuing
Agreement.
|
96
|
iii
EXHIBITS
Exhibit
1.1A
|
Form
of Pledge Agreement
|
|
Exhibit
1.1B
|
Form
of Security Agreement
|
|
Exhibit
2.1(b)(i)
|
Form
of Notice of Borrowing
|
|
Exhibit
2.1(d)
|
Form
of Revolving Note
|
|
Exhibit
3.2
|
Form
of Notice of Extension/Conversion
|
|
Exhibit
7.1(d)
|
Form
of Officer’s Compliance Certificate
|
|
Exhibit
7.12
|
Form
of Joinder Agreement
|
|
Exhibit
11.3(b)
|
Form
of Assignment and Acceptance
|
SCHEDULES
Schedule
1.1A
|
Investments
|
|
Schedule
1.1B
|
Liens
|
|
Schedule
1.1C
|
Existing
Letters of Credit
|
|
Schedule
2.1(a)
|
Lenders
|
|
Schedule
5.1(h)
|
Corporate
Structure
|
|
Schedule
6.4
|
Required
Consents, Authorizations, Notices and Filings
|
|
Schedule
6.9
|
Litigation
|
|
Schedule
6.13
|
Subsidiaries
|
|
Schedule
6.17
|
Intellectual
Property
|
|
Schedule
6.20(a)
|
Collateral
Locations
|
|
Schedule
6.20(b)
|
Chief
Executive Offices
|
|
Schedule
7.6
|
Insurance
|
|
Schedule
8.1
|
Indebtedness
|
|
Schedule
8.8
|
Transactions
with Affiliates
|
iv
THIS
CREDIT AGREEMENT,
dated
as of March 15, 2007 (as amended, modified, restated or supplemented from
time to time, the “Credit
Agreement”),
is by
and among BENIHANA
INC.,
a
Delaware corporation (the “Borrower”),
the
Guarantors (as defined herein), the Lenders (as defined herein) and WACHOVIA
BANK, NATIONAL ASSOCIATION,
as
Agent for the Lenders (in such capacity, the “Agent”).
W
I T N E S S E T H
WHEREAS,
the
Borrower has requested that the Lenders make loans and other financial
accommodations to the Borrower of up to $75,000,000, as more particularly
described herein; and
WHEREAS,
the
Lenders have agreed to make the requested credit facility available to the
Borrower on the terms and conditions hereinafter set forth;
NOW,
THEREFORE, IN CONSIDERATION of
the
premises and other good and valuable consideration, the receipt and sufficiency
of which is hereby acknowledged, the parties hereto agree as
follows:
SECTION
1
DEFINITIONS
1.1
Definitions.
As
used
in this Credit Agreement, the following terms shall have the meanings specified
below unless the context otherwise requires:
“Acquisition”
means
the acquisition by any Person of the Capital Stock or all or substantially
all
of the Property of another Person, whether or not involving a merger or
consolidation with such Person.
“Additional
Credit Party”
means
each Person that becomes a Guarantor after the Closing Date by execution of
a
Joinder Agreement.
“Adjusted
Base Rate”
means
the Base Rate plus
the
Applicable Margin.
“Adjusted
Eurodollar Market Index Rate”
means
the Eurodollar Market Index Rate plus
the
Applicable Margin for Eurodollar Loans.
1
“Adjusted
Eurodollar Rate”
means
the Eurodollar Rate plus
the
Applicable Margin for Eurodollar Loans.
“Affiliate”
means,
with respect to any Person, any other Person (a) directly or indirectly
controlling or controlled by or under direct or indirect common control with
such Person or (b) directly or indirectly owning or holding ten percent
(10%) or more of the equity interest in such Person. For purposes of this
definition, “control” when used with respect to any Person means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms “controlling” and “controlled” have meanings correlative to the
foregoing.
“Agent”
shall
have the meaning assigned to such term in the heading hereof, together with
any
successors or assigns.
“Agent’s
Fees”
shall
have the meaning assigned to such term in Section 3.5(c).
Applicable
Lending Office”
means,
for each Lender, the office of such Lender (or of an Affiliate of such Lender)
as such Lender may from time to time specify to the Agent and the Borrower
by
written notice as the office by which its Eurodollar Loans are made and
maintained.
“Applicable
Margin”
means,
for purposes of calculating the applicable interest rate for any day for any
Revolving Loan, the applicable rate of the Commitment Fee for any day for
purposes of Section 3.5(a) and the applicable rate of the Standby Letter of
Credit Fee for any day for purposes of Section 3.5(b)(i), the appropriate
Applicable Margin corresponding to the Leverage Ratio in effect as of the most
recent Calculation Date:
Pricing
Level
|
Leverage
Ratio
|
Applicable
Margin for Eurodollar Loans
|
Applicable
Margin for Base Rate Loans
|
Revolver
Commitment Fee
|
Applicable
Margin For Standby Letter of Credit Fee
|
|||||||||||
I
|
>
3.00 to 1.0
|
1.250
|
%
|
-1.50
|
%
|
0.300
|
%
|
1.250
|
%
|
|||||||
II
|
>
2.75 to 1.0 but ≤ 3.00 to 1.0
|
1.000
|
%
|
-1.75
|
%
|
0.250
|
%
|
1.000
|
%
|
|||||||
III
|
>
2.25 to 1.0 but ≤ 2.75 to 1.0
|
0.875
|
%
|
-1.875
|
%
|
0.200
|
%
|
0.875
|
%
|
|||||||
IV
|
≤
2.25 to 1.0
|
0.750
|
%
|
-2.000
|
%
|
0.150
|
%
|
0.750
|
%
|
The
Applicable Margins shall be determined and adjusted quarterly on the date (each
a “Calculation
Date”)
five (5) Business Days after the date by which the Borrower is required to
provide the officer’s certificate in accordance with the provisions of
Section 7.1(d) for the most recently ended fiscal quarter of the
Consolidated Parties; provided
that the
initial Pricing Level shall be determined by the Leverage Ratio as of the last
day of the most recently ended fiscal quarter of the Consolidated Parties
preceding the Closing Date and thereafter the Pricing Level shall be determined
by the Leverage Ratio as of the last day of the most recently ended fiscal
quarter of the Consolidated Parties preceding the applicable Calculation Date;
provided,
further
that if
the Borrower fails to provide the officer’s certificate required by
Section 7.1(d) on or before the most recent Calculation Date, the
Applicable Margin from such Calculation Date shall be based on Pricing Level
I
until such time as an appropriate officer’s certificate is provided whereupon
the Pricing Level shall be determined by the then current Leverage Ratio. In
the
event that any financial information or certification provided to the Agent
in
accordance with this Credit Agreement, is shown to be inaccurate other than
inaccuracy resulting from a subsequent change in GAAP where the original
determination was correct as of the date upon which such determination was
actually made (regardless of whether this Agreement or the Commitments are
in
effect when such inaccuracy is discovered), and such inaccuracy, if corrected,
would have led to the application of a higher Applicable Margin for any period
(an “Applicable
Period”)
than
the Applicable Margin applied for such Applicable Period, then (i)
the
Borrower shall immediately deliver to the Agent a corrected officer’s
certificate for such Applicable Period, (ii)
the
Applicable Margin shall be determined as if the corrected Pricing Level were
applicable for such Applicable Period, and (iii)
the
Borrower shall immediately pay to the Agent the accrued additional interest
owing as a result of such increased Applicable Margin for such Applicable
Period. Each Applicable Margin shall be effective from one Calculation Date
until the next Calculation Date. Any adjustment in the Applicable Margins shall
be applicable to all existing Loans as well as any new Loans made or
issued.
2
“Application
Period”,
in
respect of any Asset Disposition, shall have the meaning assigned to such term
in Section 8.5.
“Approved
Fund”
shall
mean any Fund that is administered, managed or underwritten by (a)
a
Lender, (b)
an
Affiliate of a Lender or (c)
an
entity or an Affiliate of an entity that administers or manages a
Lender.
“Asset
Disposition”
means
the disposition of any or all of the assets (including, without limitation,
the
Capital Stock of a Subsidiary and any asset subject to an Off-Balance Sheet
Lease Obligation, but excluding the sale of inventory in the ordinary course
of
business) of any Consolidated Party whether by sale, lease, transfer or
otherwise.
“Bankruptcy
Code”
means
the Bankruptcy Code in Title 11 of the United States Code, as amended,
modified, succeeded or replaced from time to time.
“Bankruptcy
Event”
means,
with respect to any Person, the occurrence of any of the following with respect
to such Person: (a) a court or governmental agency having jurisdiction in
the premises shall enter an order for relief in respect of such Person in an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or appointing a receiver, liquidator, assignee,
custodian, trustee, sequestrator (or similar official) of such Person or for
any
substantial part of its Property or ordering the winding up or liquidation
of
its affairs; or (b) there shall be commenced against such Person an
involuntary case under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect, or any case, proceeding or other action for
the
appointment of a receiver, liquidator, assignee, custodian, trustee,
sequestrator (or similar official) of such Person or for any substantial part
of
its Property or for the winding up or liquidation of its affairs, and such
involuntary case or other case, proceeding or other action shall remain
undismissed, undischarged or unbonded for a period of sixty (60)
consecutive days; or (c) such Person shall commence a voluntary case under
any applicable bankruptcy, insolvency or other similar law now or hereafter
in
effect, or consent to the entry of an order for relief in an involuntary case
under any such law, or consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee, sequestrator (or similar
official) of such Person or for any substantial part of its Property or make
any
general assignment for the benefit of creditors; or (d) such Person shall
be unable to, or shall admit in writing its inability to, pay its debts
generally as they become due.
3
“Base
Rate”
means,
for any day, the rate per annum equal to the higher of (a) the Federal
Funds Rate for such day plus one-half of one percent (.5%) and (b) the
Prime Rate for such day. Any change in the Base Rate due to a change in the
Prime Rate or the Federal Funds Rate shall be effective on the effective date
of
such change in the Prime Rate or Federal Funds Rate.
“Base
Rate Loan”
means
any Loan bearing interest at a rate determined by reference to the Base
Rate.
“Borrower”
means
the Person identified as such in the heading hereof, together with any permitted
successors and assigns.
“BOT”
means
Benihana of Tokyo, Inc.
“Business
Day”
means
a
day other than a Saturday, Sunday or other day on which commercial banks in
Charlotte, North Carolina or New York, New York are authorized or required
by
law to close, except that,
when
used in connection with a Eurodollar Loan or a Eurodollar Market Index Rate
Loan, such day shall also be a day on which dealings between banks are carried
on in U.S. dollar deposits in London, England.
“Calculation
Date”
has
the
meaning set forth in the definition of “Applicable Margin” set forth in this
Section 1.1.
“Capital
Lease”
means,
as applied to any Person, any lease of any Property (whether real, personal
or
mixed) by that Person as lessee which, in accordance with GAAP, is or should
be
accounted for as a capital lease on the balance sheet of that
Person.
“Capital
Stock”
means
(a) in the case of a corporation, capital stock, (b) in the case of an
association or business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of capital stock, (c) in
the case of a partnership, partnership interests (whether general or limited),
(d) in the case of a limited liability company, membership interests and
(e) any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of assets
of,
the issuing Person.
“Cash
Equivalents”
means
(a) securities issued or directly and fully guaranteed or insured by the
United States of America or any agency or instrumentality thereof (provided
that
the full faith and credit of the United States of America is pledged in support
thereof) having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time deposits and certificates of
deposit of (i) any Lender, (ii) any domestic commercial bank of
recognized standing having capital and surplus in excess of $500,000,000 or
(iii) any bank whose short-term commercial paper rating from S&P is at
least A-1 or the equivalent thereof or from Xxxxx’x is at least P-1 or the
equivalent thereof (any such bank being an “Approved
Bank”),
in
each case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes issued
by any Approved Bank (or by the parent company thereof) or any variable rate
notes issued by, or guaranteed by, any domestic corporation rated A-1 (or the
equivalent thereof) or better by S&P or P-1 (or the equivalent thereof) or
better by Moody’s and maturing within six months of the date of acquisition,
(d) repurchase agreements with a bank or trust company (including any of
the Lenders) or recognized securities dealer having capital and surplus in
excess of $500,000,000 for direct obligations issued by or fully guaranteed
by
the United States of America in which any Credit Party shall have a perfected
first priority security interest (subject to no other Liens) and having, on
the
date of purchase thereof, a fair market value of at least 100% of the amount
of
the repurchase obligations and (e) Investments, classified in accordance
with GAAP as current assets, in money market investment programs registered
under the Investment Company Act of 1940, as amended, which are administered
by
reputable financial institutions having capital of at least $500,000,000 and
the
portfolios of which are limited to Investments of the character described in
the
foregoing subdivisions (a) through (d).
4
“Certificate
of Designations”
means
the Certificate of Designations, Preferences and Rights of Series B Convertible
Preferred Stock of the Borrower.
“Change
in Law”
shall
mean the occurrence, after the date of this Agreement, of any of the following:
(a) the adoption or taking effect of any law, rule, regulation or treaty,
(b) any change in any law, rule, regulation or treaty or in the
administration, interpretation or application thereof by any Governmental
Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental
Authority.
“Change
of Control”
shall
mean at any time the occurrence of any of the following events: (a)
any
“person” or “group” (as such terms are used in Section 13(d) and 14(d) of the
Exchange Act) other than BOT (and those Persons who beneficially own the Capital
Stock of BOT as of the Closing Date) and BFC Financial Corporation, is or
becomes the “beneficial owner” (as defined in Rules 13d-3 and 13d-5 under the
Exchange Act, except that a person shall be deemed to have “beneficial
ownership” of all securities that such person has the right to acquire, whether
such right is exercisable immediately or only after the passage of time),
directly or indirectly, of 25% or more of the then outstanding Voting Stock
of
the Borrower; or (b)
the
replacement of a majority of the Board of Directors of the Borrower over a
two-year period from the directors who constituted the Board of Directors at
the
beginning of such period, and such replacement shall not have been approved
by a
vote of at least a majority of the Board of Directors of the Borrower then
still
in office who either were members of such Board of Directors at the beginning
of
such period or whose election as a member of such Board of Directors was
previously so approved.
“Checking
Account”
shall
mean the Borrower’s checking account as designated by the Borrower in writing to
the Administrative Agent.
“Closing
Date”
means
the date hereof.
5
“Code”
means
the Internal Revenue Code of 1986, as amended, and any successor statute
thereto, as interpreted by the rules and regulations issued thereunder, in
each
case as in effect from time to time. References to sections of the Code shall
be
construed also to refer to any successor sections.
“Collateral”
means
a
collective reference to the collateral which is identified in, and at any time
will be covered by, the Collateral Documents.
“Collateral
Documents”
means
a
collective reference to the Security Agreement, the Pledge Agreement and such
other documents executed and delivered in connection with the attachment and
perfection of the Agent’s security interests and liens arising thereunder,
including without limitation, UCC financing statements and patent, trademark
and
copyright filings.
“Commitment”
means
(a) with respect to each Lender, the Revolving Commitment of such Lender
and (b) with respect to the Issuing Lender, the LOC
Commitment.
“Commitment
Fee”
shall
have the meaning assigned to such term in Section 3.5(a).
“Commitment
Fee Calculation Period”
shall
have the meaning assigned to such term in Section 3.5(a).
“Consolidated
Accrued Interest Expense”
means,
for any period, accrued interest expense (including the amortization of debt
discount and premium and the interest component under Capital Leases) of the
Consolidated Parties on a consolidated basis for such period, as determined
in
accordance with GAAP. The applicable period shall be for the four consecutive
fiscal quarters ending as of the date of determination.
“Consolidated
Adjusted Debt”
means
the sum of (a)
Funded
Indebtedness plus
(b)
Consolidated Rent Expense multiplied by a factor of eight (8).
“Consolidated
EBIT”
means,
for any period, the sum of (a) Consolidated Net Income for such period,
plus
(b) an amount which, in the determination of Consolidated Net Income for
such period, has been deducted for (i) Consolidated Accrued Interest
Expense for such period, and (ii) Consolidated Taxes, all as determined in
accordance with GAAP.
“Consolidated
EBITDAR”
means,
for any period, the sum of (a) Consolidated EBIT for such period, plus
(b) an amount which, in the determination of Consolidated EBIT, has been
deducted for (i)
depreciation and amortization expense (including non-cash impairment charges)
for such period and (ii) Consolidated Rent Expense for such period, all as
determined in accordance with GAAP.
“Consolidated
Material Adverse Effect”
means
a
material adverse effect on (a) the condition (financial or otherwise),
operations, business, assets, liabilities or prospects of the Consolidated
Parties taken as a whole, (b) the ability the Consolidated Parties taken as
a
whole to perform any obligation under the Credit Documents or (c) the material
rights and remedies of the Lenders under the Credit Documents.
6
“Consolidated
Net Income”
means,
for any period, net income (excluding extraordinary items) after taxes for
such
period of the Consolidated Parties on a consolidated basis, as determined in
accordance with GAAP.
“Consolidated
Parties”
means
a
collective reference to the Borrower and its Subsidiaries, and “Consolidated
Party” means any one of them.
“Consolidated
Rent Expense”
shall
mean, for any period, all rent expense of the Consolidated Parties on a
consolidated basis for such period, as determined in accordance with GAAP.
“Consolidated
Scheduled Funded Debt Payments”
means,
as of the end of each fiscal quarter of the Consolidated Parties, for the
Consolidated Parties on a consolidated basis, the sum of all scheduled payments
of principal on Funded Indebtedness for the applicable period ending on such
date (including the principal component of payments due on Capital Leases during
the applicable period ending on such date); it being understood that
Consolidated Scheduled Funded Debt Payments shall not include voluntary
prepayments or the mandatory prepayments required pursuant to
Section 3.3.
“Consolidated
Taxes”
means,
for any period, the aggregate of all federal, state, local and foreign income,
value added and similar taxes of the Consolidated Parties on a consolidated
basis for such period, as determined in accordance with GAAP.
“Continue”,
“Continuation”,
and
“Continued”
shall
refer to the continuation pursuant to Section 3.2 hereof of a Eurodollar
Loan from one Interest Period to the next Interest Period.
“Convert”,
“Conversion”,
and
“Converted”
shall
refer to a conversion pursuant to Section 3.2 or Sections 3.7 through
3.12, inclusive, of a Base Rate Loan into a Eurodollar Loan.
“Credit
Documents”
means
a
collective reference to this Credit Agreement, the Notes, the LOC Documents,
each Joinder Agreement, the Collateral Documents and all other related
agreements and documents issued or delivered hereunder or thereunder or pursuant
hereto or thereto (in each case as the same may be amended, modified, restated,
supplemented, extended, renewed or replaced from time to time), and “Credit
Document” means any one of them.
“Credit
Parties”
means
a
collective reference to the Borrower and the Guarantors, and “Credit Party”
means any one of them.
“Credit
Party Obligations”
means,
without duplication, (a) all of the obligations of the Credit Parties to
the Lenders (including the Issuing Lender) and the Agent, whenever arising,
under this Credit Agreement, the Notes, the Collateral Documents or any of
the
other Credit Documents (including, but not limited to, any interest accruing
after the occurrence of a Bankruptcy Event with respect to any Credit Party,
regardless of whether such interest is an allowed claim under the Bankruptcy
Code) and (b) all liabilities and obligations, whenever arising, owing from
the Borrower to any Lender, any Affiliate of a Lender, or any other Person
that
was a Lender (or an Affiliate of a Lender) at any time (or whose Affiliate
has
ceased to be a Lender) arising under any Hedging Agreement.
7
“Default”
means
any event, act or condition which with notice or lapse of time, or both, would
constitute an Event of Default.
“Defaulting
Lender”
means,
at any time, any Lender that (a) has failed to make a Loan or purchase a
Participation Interest required pursuant to the term of this Credit Agreement
within one Business Day of when due, (b) other than as set forth in
(a) above, has failed to pay to the Agent or any Lender an amount owed by
such Lender pursuant to the terms of this Credit Agreement within one Business
Day of when due, or (c) has been deemed insolvent or has become subject to
a bankruptcy or insolvency proceeding or with respect to which (or with respect
to any of assets of which) a receiver, trustee or similar official has been
appointed.
“Dollars”
and
“$”
means
dollars in lawful currency of the United States of America.
“Domestic
Subsidiary”
means,
with respect to any Person, any Subsidiary of such Person which is incorporated
or organized under the laws of any State of the United States or the District
of
Columbia.
“Eligible
Assignee”
means
(a) a Lender; (b) an Affiliate of a Lender; and (c) any other
Person approved by the Agent and, unless an Event of Default has occurred and
is
continuing at the time any assignment is effected in accordance with
Section 11.3, the Borrower (such approval not to be unreasonably withheld
or delayed by the Borrower and such approval to be deemed given by the Borrower
if no objection is received by the assigning Lender and the Agent from the
Borrower within five (5) Business Days after notice of such proposed assignment
has been provided by the assigning Lender to the Borrower); provided,
however,
that
neither the Borrower nor an Affiliate of the Borrower shall qualify as an
Eligible Assignee.
“Environmental
Laws”
means
any and all lawful and applicable Federal, state, local and foreign statutes,
laws, regulations, ordinances, rules, judgments, orders, decrees, permits,
concessions, grants, franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions, discharges, releases
or threatened releases of pollutants, contaminants, chemicals, or industrial,
toxic or hazardous substances or wastes into the environment including, without
limitation, ambient air, surface water, ground water, or land, or otherwise
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport, or handling of pollutants, contaminants, chemicals, or
industrial, toxic or hazardous substances or wastes.
“ERISA”
means
the Employee Retirement Income Security Act of 1974, as amended, and any
successor statute thereto, as interpreted by the rules and regulations
thereunder, all as the same may be in effect from time to time. References
to
sections of ERISA shall be construed also to refer to any successor
sections.
8
“ERISA
Affiliate”
means
an entity which is under common control with any Credit Party within the meaning
of Section 4001(a)(14) of ERISA, or is a member of a group which includes
the Borrower and which is treated as a single employer under Sections 414(b)
or
(c) of the Code.
“ERISA
Event”
means
(a) with respect to any Plan, the occurrence of a Reportable Event or the
substantial cessation of operations (within the meaning of Section 4062(e)
of
ERISA); (b) the withdrawal by any Consolidated Party or any ERISA Affiliate
from a Multiple Employer Plan during a plan year in which it was a substantial
employer (as such term is defined in Section 4001(a)(2) of ERISA), or the
termination of a Multiple Employer Plan; (c) the distribution of a notice
of intent to terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section 4042
of
ERISA; (e) any event or condition which might constitute grounds under
Section 4042 of ERISA for the termination of, or the appointment of a trustee
to
administer, any Plan; (f) the complete or partial withdrawal of any
Consolidated Party or any ERISA Affiliate from a Multiemployer Plan;
(g) the conditions for imposition of a lien under Section 302(f) of ERISA
exist with respect to any Plan; or (h) the adoption of an amendment to any
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA.
“Eurodollar
Loan”
means
any Loan that bears interest at a rate based upon the Eurodollar
Rate.
“Eurodollar
Market Index Rate”
means,
for any day, the rate for
one
month U.S. dollar deposits, as reported on Telerate page 3750 as of 11:00 a.m.,
London time, on such day, or if such day is not a London business day, then
the
immediately preceding London business day (or if not so reported, then as
determined by the Administrative Agent from another recognized source or
interbank quotation).
“Eurodollar
Market Index Rate Loan”
means
any Loan bearing interest at a rate determined by reference to the Eurodollar
Market Index Rate.
“Eurodollar
Rate”
means,
for any Eurodollar Loan for any Interest Period therefor, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) determined by the
Agent to be equal to the quotient obtained by dividing (a) the London
Interbank Offered Rate for such Eurodollar Loan for such Interest Period by
(b) 1 minus the Eurodollar Reserve Requirement for such Eurodollar Loan for
such Interest Period.
“Eurodollar
Reserve Requirement”
means,
at any time, the maximum rate at which reserves (including, without limitation,
any marginal, special, supplemental, or emergency reserves) are required to
be
maintained under regulations issued from time to time by the Board of Governors
of the Federal Reserve System (or any successor) by member banks of the Federal
Reserve System against “Eurocurrency liabilities” (as such term is used in
Regulation D). Without limiting the effect of the foregoing, the Eurodollar
Reserve Requirement shall reflect any other reserves required to be maintained
by such member banks with respect to (a) any category of liabilities which
includes deposits by reference to which the Adjusted Eurodollar Rate is to
be
determined, or (b) any category of extensions of credit or other assets
which include Eurodollar Loans. The Adjusted Eurodollar Rate shall be adjusted
automatically on and as of the effective date of any change in the Eurodollar
Reserve Requirement.
9
“Event
of Default”
means
such term as defined in Section 9.1.
“Existing
Letter of Credit”
shall
mean each of the letters of credit described by date of issuance, amount,
purpose and the date of expiry on Schedule
1.1C
hereto.
“Exchange
Act”
shall
mean the Securities Exchange Act of 1934, as amended.
“Excluded
Asset Disposition”
means
any Asset Disposition by any Consolidated Party to any Credit Party if
(a) the Credit Parties shall cause to be executed and delivered such
documents, instruments and certificates as the Agent may request so as to cause
the Credit Parties to be in compliance with the terms of Section 7.11 after
giving effect to such Asset Disposition and (b) after giving effect to such
Asset Disposition, no Default or Event of Default exists.
“Extension
of Credit”
shall
mean, as to any Lender, the making of a Loan by such Lender or the issuance
of,
or participation in, a Letter of Credit by such Lender.
“Fees”
means
all fees payable pursuant to Section 3.5.
“Federal
Funds Rate”
means,
for any day, the rate per annum (rounded upwards, if necessary, to the nearest
1/100 of 1%) equal to the weighted average of the rates on overnight Federal
funds transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve Bank
of
New York on the Business Day next succeeding such day; provided
that
(a) if such day is not a Business Day, the Federal Funds Rate for such day
shall be such rate on such transactions on the next preceding Business Day
as so
published on the next succeeding Business Day, and (b) if no such rate is
so published on such next succeeding Business Day, the Federal Funds Rate for
such day shall be the average rate charged to the Agent (in its individual
capacity) on such day on such transactions as determined by the
Agent.
“Fixed
Charge Coverage Ratio”
means, as
of the
end of each fiscal quarter of the Consolidated Parties for the four fiscal
quarter period ending on such date, the ratio of (a) Consolidated EBIT for
the applicable period to (b) the sum of (i) Consolidated Accrued
Interest Expense for the applicable period plus
(ii) Consolidated Taxes for the applicable period plus
(iii) dividends paid during such period plus
(iv) Consolidated Scheduled Funded Debt Payments for the applicable period
plus
(v) any amounts paid for the repurchase of preferred stock for the
applicable period.
“Foreign
Subsidiary”
means,
with respect to any Person, any Subsidiary of such Person which is not a
Domestic Subsidiary of such Person.
10
“Fund”
means
any Person (other than a natural person) that is (or will be) engaged in making,
purchasing, holding or otherwise investing in commercial loans and similar
extensions of credit in the ordinary course of its business.
“Funded
Indebtedness”
means,
with respect to any Person, without duplication, (a)
all
obligations of such Person for borrowed money, (b)
all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
all
obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into
in the ordinary course of business), (d)
all
obligations of such Person issued or assumed as the deferred purchase price
of
Property or services purchased by such Person (other than trade debt incurred
in
the ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(e)
the
maximum amount of all standby letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without duplication,
all
drafts drawn thereunder (to the extent unreimbursed), (f)
(i) all
preferred Capital Stock issued by such Person and required by the terms thereof
to be redeemed in cash prior to or within ninety (90) days after the Maturity
Date, or for which mandatory sinking fund payments are due and (ii) all accrued
but unpaid dividends, (g)
all
Off-Balance Sheet Lease Obligations, (h)
the
principal portion of all obligations of such Person under Capital Leases,
(i)
all
Indebtedness of another Person of the type referred to in clauses (a)-(h)
above secured by (or for which the holder of such Funded Indebtedness has an
existing right, contingent or otherwise, to be secured by) any Lien on, or
payable out of the proceeds of production from, Property owned or acquired
by
such Person, whether or not the obligations secured thereby have been assumed,
(j)
all
Guaranty Obligations of such Person with respect to Indebtedness of the type
referred to in clauses (a)-(h) above of another Person and (k)
Indebtedness of the type referred to in clauses (a)-(h) above of any
partnership or unincorporated joint venture in which such Person is legally
obligated or has a reasonable expectation of being liable with respect
thereto.
“GAAP”
means
generally accepted accounting principles in the United States applied on a
consistent basis and subject to the terms of Section 1.3.
“Governmental
Authority”
means
any Federal, state, local or foreign court or governmental agency, authority,
instrumentality or regulatory body.
“Guarantor”
means
each of the Persons identified as a “Guarantor” on the signature pages hereto
and each Additional Credit Party which may hereafter execute a Joinder
Agreement, together with their successors and permitted assigns, and
“Guarantor”
means
any one of them.
“Guaranty
Obligations”
means,
with respect to any Person, without duplication, any obligations of such Person
(other than endorsements in the ordinary course of business of negotiable
instruments for deposit or collection) guaranteeing or intended to guarantee
any
Indebtedness of any other Person in any manner, whether direct or indirect,
and
including without limitation any obligation, whether or not contingent,
(a) to purchase any such Indebtedness or any Property constituting security
therefor, (b) to advance or provide funds or other support for the payment
or purchase of any such Indebtedness or to maintain working capital, solvency
or
other balance sheet condition of such other Person (including without limitation
keep well agreements, maintenance agreements, comfort letters or similar
agreements or arrangements) for the benefit of any holder of Indebtedness of
such other Person, (c) to lease or purchase Property, securities or
services primarily for the purpose of assuring the holder of such Indebtedness,
or (d) to otherwise assure or hold harmless the holder of such Indebtedness
against loss in respect thereof. The amount of any Guaranty Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an amount
equal to the outstanding principal amount (or maximum principal amount, if
larger) of the Indebtedness in respect of which such Guaranty Obligation is
made.
11
“Hedging
Agreements”
means
any interest rate protection agreement or foreign currency exchange agreement
between any Consolidated Party and any Lender, or any Affiliate of a
Lender.
“Indebtedness”
means,
with respect to any Person, without duplication, (a)
all
obligations of such Person for borrowed money, (b)
all
obligations of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made, (c)
all
obligations of such Person under conditional sale or other title retention
agreements relating to Property purchased by such Person (other than customary
reservations or retentions of title under agreements with suppliers entered
into
in the ordinary course of business), (d)
all
obligations of such Person issued or assumed as the deferred purchase price
of
Property or services purchased by such Person (other than trade debt incurred
in
the ordinary course of business and due within six months of the incurrence
thereof) which would appear as liabilities on a balance sheet of such Person,
(e)
all
obligations of such Person under take-or-pay or similar arrangements or under
commodities agreements, (f)
all
Indebtedness of others secured by (or for which the holder of such Indebtedness
has an existing right, contingent or otherwise, to be secured by) any Lien
on,
or payable out of the proceeds of production from, Property owned or acquired
by
such Person, whether or not the obligations secured thereby have been assumed,
(g)
all
Guaranty Obligations of such Person, (h)
the
principal portion of all obligations of such Person under Capital Leases,
(i)
all
obligations of such Person under Hedging Agreements, (j)
the
maximum amount of all standby letters of credit issued or bankers’ acceptances
facilities created for the account of such Person and, without duplication,
all
drafts drawn thereunder (to the extent unreimbursed), (k)
(i) all
preferred Capital Stock issued by such Person and required by the terms thereof
to be redeemed in cash prior to or within ninety (90) days after the Maturity
Date, or for which mandatory sinking fund payments are due, and (ii) all accrued
but unpaid dividends, and (l)
all
Off-Balance Sheet Lease Obligations.
“Interest
Payment Date”
means
(a) as to Base Rate Loans, the last day of each calendar quarter and the
Maturity Date, (b) as to Eurodollar Loans, the last day of each calendar
quarter and the Maturity Date and (c) as to Eurodollar Market Index Rate Loans,
the last day of each calendar quarter.
“Interest
Period”
means,
as to Eurodollar Loans, a period of one, two or three months’ duration, as the
Borrower may elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof); provided,
however,
(a) if any Interest Period would end on a day which is not a Business Day,
such Interest Period shall be extended to the next succeeding Business Day
(except that where the next succeeding Business Day falls in the next succeeding
calendar month, then on the next preceding Business Day), (b) no Interest
Period shall extend beyond the Maturity Date, and (c) where an Interest
Period begins on a day for which there is no numerically corresponding day
in
the calendar month in which the Interest Period is to end, such Interest Period
shall end on the last Business Day of such calendar month.
12
“Investment”
in
any
Person means (a) the acquisition (whether for cash, property, services,
assumption of Indebtedness, securities or otherwise) of assets (excluding goods
and inventory used or sold in the ordinary course of business), shares of
Capital Stock, bonds, notes, debentures, partnership, joint ventures or other
ownership interests or other securities of such other Person or (b) any
deposit with, or advance, loan or other extension of credit to, such Person
(other than deposits made in connection with the purchase of equipment or other
assets in the ordinary course of business) or (c) any other capital contribution
to or investment in such Person, including, without limitation, any Guaranty
Obligations (including any support for a letter of credit issued on behalf
of
such Person) incurred for the benefit of such Person, but excluding any
Restricted Payment to such Person.
“Issuing
Lender”
means
Wachovia.
“Issuing
Lender Fees”
shall
have the meaning assigned to such term in Section 3.5(b)(iii).
“Joinder
Agreement”
means
a
Joinder Agreement substantially in the form of Exhibit 7.12
hereto,
executed and delivered by an Additional Credit Party in accordance with the
provisions of Section 7.12.
“Lender”
means
any of the Persons identified as a “Lender” on the signature pages hereto, and
any Person which may become a Lender by way of assignment in accordance with
the
terms hereof, together with their successors and permitted assigns.
“Letter
of Credit”
means
any letter of credit issued by the Issuing Lender for the account of any Credit
Party in accordance with the terms of Section 2.3.
“Leverage
Ratio”
means,
as of the end of each fiscal quarter of the Consolidated Parties for the four
fiscal quarter period ending on such date, with respect to the Consolidated
Parties on a consolidated basis, the ratio of (a) Consolidated Adjusted
Debt to (b) Consolidated EBITDAR for such period.
“Lien”
means
any mortgage, pledge, hypothecation, assignment, deposit arrangement, security
interest, encumbrance, lien (statutory or otherwise), preference, priority
or
charge of any kind (including any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, any financing or similar
statement or notice filed under the Uniform Commercial Code as adopted and
in
effect in the relevant jurisdiction or other similar recording or notice
statute, and any lease in the nature thereof).
13
“Loan”
or
“Loans”
means
the Revolving Loans (or a portion of any Revolving Loan bearing interest at
the
Adjusted Base Rate or the Adjusted Eurodollar Rate), individually or
collectively, as appropriate.
“LOC
Commitment”
means
the commitment of the Issuing Lender to issue Letters of Credit in an aggregate
face amount at any time outstanding (together with the amounts of any
unreimbursed drawings thereon) of up to the LOC Committed Amount.
“LOC
Committed Amount”
shall
have the meaning assigned to such term in Section 2.3.
“LOC
Documents”
means,
with respect to any Letter of Credit, such Letter of Credit, any amendments
thereto, any documents delivered in connection therewith, any application
therefor, and any agreements, instruments, guarantees or other documents
(whether general in application or applicable only to such Letter of Credit)
governing or providing for (a) the rights and obligations of the parties
concerned or at risk or (b) any collateral security for such
obligations.
“LOC
Obligations”
means,
at any time, the sum of (a) the maximum amount which is, or at any time
thereafter may become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for drawings referred
to
in such Letters of Credit plus
(b) the aggregate amount of all drawings under Letters of Credit honored by
the Issuing Lender but not theretofore reimbursed by the Borrower.
“London
Interbank Offered Rate”
shall
mean, with respect to any Eurodollar Loan for the Interest Period applicable
thereto, the rate of interest per annum (rounded upwards, if necessary, to
the
nearest 1/100 of 1%) appearing on Telerate Page 3750 (or any successor page)
as
the London interbank offered rate for deposits in Dollars at approximately
11:00 A.M. (London time) two (2) Business Days prior to the first day
of such Interest Period for a term comparable to such Interest Period;
provided,
however,
if more
than one rate is specified on Telerate Page 3750, the applicable rate shall
be the arithmetic mean of all such rates. If, for any reason, such rate is
not
available, the term “London
Interbank Offered Rate”
shall
mean, with respect to any Eurodollar Loan for the Interest Period applicable
thereto, the rate of interest per annum (rounded upwards, if necessary, to
the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two (2) Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided,
however,
if more
than one rate is specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates.
“Material
Adverse Effect”
means
a
material adverse effect on (a) the condition (financial or otherwise),
operations, business, assets, liabilities or prospects of any Consolidated
Party, (b) the ability of any Credit Party to perform any material
obligation under the Credit Documents to which it is a party or (c) the
material rights and remedies of the Lenders under the Credit
Documents.
“Materials
of Environmental Concern”
means
any gasoline or petroleum (including crude oil or any fraction thereof) or
petroleum products or any hazardous or toxic substances, materials or wastes,
defined or regulated as such in or under any Environmental Laws, including,
without limitation, asbestos, polychlorinated biphenyls and urea-formaldehyde
insulation.
14
“Maturity
Date”
means
the date which is five years following the Closing Date.
“Moody’s”
means
Xxxxx’x Investors Service, Inc., or any successor or assignee of the business of
such company in the business of rating securities.
“Multiemployer
Plan”
means
a
Plan which is a multiemployer plan as defined in Sections 3(37) or
4001(a)(3) of ERISA.
“Multiple
Employer Plan”
means
a
Plan which any Consolidated Party or any ERISA Affiliate and at least one
employer other than the Consolidated Parties or any ERISA Affiliate are
contributing sponsors.
“Net
Cash Proceeds”
means
the aggregate cash proceeds received by the Consolidated Parties in respect
of
any Asset Disposition, net of (a) direct costs (including, without
limitation, legal, accounting and investment banking fees, and sales
commissions), (b) taxes paid or payable as a result thereof; it being
understood that “Net Cash Proceeds” shall include, without limitation, any cash
received upon the sale or other disposition of any non-cash consideration
received by the Consolidated Parties in any Asset Disposition, and (c) in
the case of an Asset Disposition only, any amounts payable in respect of
Indebtedness which is secured by, or otherwise related to, any Property which
is
the subject thereof to the extent such Indebtedness and any payments in respect
thereof are paid with a portion of the proceeds therefrom.
“Non-Sweep
Revolving Commitment”
means,
with respect to each Lender, the commitment of such Lender in an aggregate
principal amount at any time outstanding of up to such Lender’s Revolving
Commitment Percentage of the Non-Sweep Revolving Committed Amount, (a) to
make Non-Sweep Revolving Loans in accordance with the provisions of
Section 2.2 and (b) to purchase Participation Interests in Letters of
Credit in accordance with the provisions of Section 2.3(c).
“Non-Sweep
Revolving Committed Amount”
shall
have the meaning assigned to such term in Section 2.2(a).
“Non-Sweep
Revolving Loans”
shall
have the meaning assigned to such term in Section 2.2(a).
“Note”
or
“Notes”
means
the Revolving Notes, individually or collectively, as appropriate.
“Notice
of Borrowing”
means
a
written notice of borrowing in substantially the form of Exhibit 2.1(b)(i),
as
required by Section 2.1, or Section 2.2.
“Notice
of Extension/Conversion”
means
the written notice of extension or conversion in substantially the form of
Exhibit 3.2,
as
required by Section 3.2.
15
“OFAC”
shall
mean the U.S. Department of the Treasury’s Office of Foreign Assets
Control.
“Off-Balance
Sheet Lease Obligations”
shall
mean all indebtedness in respect of any synthetic lease, end loaded lease
financing, tax retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product to which such Person is a
party.
“Operating
Lease”
means,
as applied to any Person, any lease (including, without limitation, leases
which
may be terminated by the lessee at any time) of any Property (whether real,
personal or mixed) which is not a Capital Lease other than any such lease in
which that Person is the lessor.
“Other
Taxes”
means
such term as is defined in Section 3.11.
“Participant”
means
any Person who purchases a participation from a Lender (other than a natural
person or the Borrower or any of the Borrower’s Affiliates or
Subsidiaries).
“Participation
Interest”
means
a
purchase by a Lender of a participation in Letters of Credit or LOC Obligations
as provided in Section 2.3 or in any Loans as provided in
Section 3.14.
“Patriot
Act”
shall
mean the USA Patriot Act, Title III of Pub. L. 107-56, signed into law October
26, 2001.
“PBGC”
means
the Pension Benefit Guaranty Corporation established pursuant to Subtitle A
of
Title IV of ERISA and any successor thereof.
“Permitted
Acquisition”
shall
mean an acquisition or any series of related acquisitions by a Credit Party
of
(a)
all or
substantially all of the assets or a majority of the outstanding Voting Stock
or
economic interests of a Person that is incorporated, formed or organized in
the
United States, (b)
a
Person that is incorporated, formed or organized in the United States by a
merger, amalgamation or consolidation or any other combination with such Person
or (c) any division, line of business or other business unit of a Person
that is incorporated, formed or organized in the United States (such Person
or
such division, line of business or other business unit of such Person shall
be
referred to herein as the “Target”),
in
each case that is a type of business (or assets used in a type of business)
permitted to be engaged in by the Credit Parties and their Subsidiaries pursuant
to Section 8.3, in each case so long as:
(i)
no
Default or Event of Default shall then exist or would exist after giving effect
thereto;
(ii)
the
Credit Parties shall demonstrate to the reasonable satisfaction of the
Administrative Agent that, after giving effect to the acquisition on a pro
forma
basis the Credit Parties are in compliance with each of the financial covenants
set forth in Section 7.11;
16
(iii)
the
Administrative Agent shall have received (or shall receive in connection with
the closing of such acquisition) a first priority perfected security interest
in
all property (including, without limitation, Capital Stock) acquired with
respect to the Target in accordance with the terms of Sections 7.12 and 7.13
and
the Target, if a Person, shall have executed a Joinder Agreement in accordance
with the terms of Section 7.12;
(iv)
the
Administrative Agent and the Lenders shall have received (A)
a
description of the material terms of such acquisition, (B)
audited
financial statements (or, if unavailable, management-prepared financial
statements) of the Target for its two most recent fiscal years and for any
fiscal quarters ended within the fiscal year to date, and (C)
Consolidated projected income statements of the Borrower and its Consolidated
Subsidiaries (giving effect to such acquisition);
(v) the
Target shall have earnings before interest, taxes, depreciation and amortization
for the four fiscal quarter period prior to the acquisition date in an amount
greater than $0;
(vi)
such
acquisition shall not be a “hostile” acquisition and shall have been approved by
the Board of Directors (or equivalent) and/or shareholders (or equivalent)
of
the applicable Credit Party and the Target; and
(vii)
the
aggregate consideration (including without limitation earn outs or deferred
compensation or non-competition arrangements and the amount of Indebtedness
and
other liabilities assumed by the Borrower and its Subsidiaries but excluding
equity consideration) paid by the Borrower and its Subsidiaries for all
acquisitions made during any consecutive twenty-four month period shall not
exceed $15,000,000.
“Permitted
Investments”
shall
mean:
(a)
cash
and
Cash Equivalents;
(b)
Investments
set forth on Schedule
1.1A;
(c)
receivables
owing to any Consolidated Party or any of their Subsidiaries or any receivables
and advances to suppliers, in each case if created, acquired or made in the
ordinary course of business and payable or dischargeable in accordance with
customary trade terms;
(d)
Investments
in and loans to any Credit Party;
(e)
loans
and
advances to non-officer employees in an aggregate amount not to exceed $50,000
at any time outstanding;
(f)
Investments
(including debt obligations) received in connection with the bankruptcy or
reorganization of suppliers and customers and in settlement of delinquent
obligations of, and other disputes with, customers and suppliers arising in
the
ordinary course of business;
17
(g)
Permitted
Acquisitions;
(h)
equity
securities listed on any national securities exchange located in the United
States or quoted on the NASDAQ National Market, provided
that
(i) the long-term credit rating of the corporation issuing such securities
shall be A- (or the equivalent thereof) or better from S&P or A3 (or the
equivalent thereof) or better from Moody’s and (ii) the purchase price paid
for all such equity securities held at any time shall not exceed $500,000;
and
(i)
Hedging
Agreements to the extent permitted hereunder.
“Permitted
Liens”
means:
(a)
Liens
in
favor of the Agent to secure the Credit Party Obligations;
(b)
Liens
(other than Liens created or imposed under ERISA) for taxes, assessments or
governmental charges or levies not yet due or Liens for taxes being contested
in
good faith by appropriate proceedings for which adequate reserves determined
in
accordance with GAAP have been established (and as to which the Property subject
to any such Lien is not yet subject to foreclosure, sale or loss on account
thereof);
(c)
statutory
Liens of landlords and Liens of carriers, warehousemen, mechanics, general
contractors, sub-contractors, materialmen and suppliers and other Liens imposed
by law or pursuant to customary reservations or retentions of title arising
in
the ordinary course of business, provided
that
such Liens secure only amounts not yet due and payable or, if due and payable,
are unfiled and no other action has been taken to enforce the same or are being
contested in good faith by appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established (and as to which the
Property subject to any such Lien is not yet subject to foreclosure, sale or
loss on account thereof);
(d)
Liens
(other than Liens created or imposed under ERISA) incurred or deposits made
by
any Consolidated Party in the ordinary course of business in connection with
workers’ compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations, bids,
leases, government contracts, performance and return-of-money bonds and other
similar obligations (exclusive of obligations for the payment of borrowed
money);
(e)
Liens
in
connection with attachments or judgments (including judgment or appeal bonds)
provided
that no
Event of Default shall have occurred hereunder, and provided,
further,
that
the judgments secured shall, within sixty (60) days after the entry thereof,
have been discharged or execution thereof stayed pending appeal, or shall have
been discharged within sixty (60) days after the expiration of any such
stay;
18
(f)
easements,
rights-of-way, restrictions (including zoning restrictions), minor defects
or
irregularities in title and other similar charges or encumbrances not, in any
material respect, impairing the use of the encumbered Property for its intended
purposes;
(g)
Liens
on
Property securing purchase money Indebtedness (including Capital Leases) to
the
extent permitted under Section 8.1(c) and (f), provided
that any
such Lien attaches to such Property concurrently with or within thirty (30)
days after the acquisition thereof;
(h)
any
interest of title of a lessor under, and Liens arising from UCC financing
statements (or equivalent filings, registrations or agreements in foreign
jurisdictions) relating to, leases permitted by this Credit
Agreement;
(i)
normal
and customary rights of setoff upon deposits of cash in favor of banks or other
depository institutions provided,
that no
Event of Default shall have occurred hereunder;
(j)
Liens
existing as of the Closing Date and set forth on Schedule 1.1B;
provided
that
(i) no such Lien shall at any time be extended to or cover any Property
other than the Property subject thereto on the Closing Date and (ii) the
principal amount of the Indebtedness secured by such Liens shall not be
extended, renewed, refunded or refinanced; and
(k)
additional Liens securing Indebtedness permitted under Section 8.1 not to exceed
$100,000 individually and $200,000 in the aggregate.
“Permitted
Preferred Stock”
means
the 800,000 shares of the Borrower’s Series B convertible, redeemable preferred
stock issued by the Borrower on or about July 1, 2004 pursuant to the
Certificate of Designations and the Stock Purchase Agreement, including the
PIK
Shares (as defined in the Stock Purchase Agreement) and all other shares of
the
Borrower’s Series B convertible, redeemable preferred stock issuable under the
Certificate of Designations and the Stock Purchase Agreement.
“Person”
means
any individual, partnership, joint venture, firm, corporation, limited liability
company, association, trust or other enterprise (whether or not incorporated)
or
any Governmental Authority.
“Plan”
means
any employee benefit plan (as defined in Section 3(3) of ERISA) which is covered
by ERISA and with respect to which any Consolidated Party or any ERISA Affiliate
is (or, if such plan were terminated at such time, would under Section 4069
of ERISA be deemed to be) an “employer” within the meaning of Section 3(5)
of ERISA.
19
“Pledge
Agreement”
means
the pledge agreement dated as of the Closing Date in the form of Exhibit 1.1A
to be
executed in favor of the Agent by each of the Credit Parties, as amended,
modified, restated or supplemented from time to time.
“Prime
Rate”
means
the per annum rate of interest established from time to time by Wachovia as
its
prime rate, which rate may not be the lowest rate of interest charged by
Wachovia to its customers.
“Principal
Office”
means
the principal office of Wachovia, presently located at Charlotte, North
Carolina.
“Property”
means
any interest in any kind of property or asset, whether real, personal or mixed,
or tangible or intangible.
“Register”
shall
have the meaning given such term in Section 11.3(c).
“Regulation
T, U, or X”
means
T, U or X, respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
“Release”
means
any spilling, leaking, pumping, pouring, emitting, emptying, discharging,
injecting, escaping, leaching, dumping or disposing into the environment
(including the abandonment or discarding of barrels, containers and other closed
receptacles containing any Materials of Environmental Concern).
“Reportable
Event”
means
any of the events set forth in Section 4043(c) of ERISA, other than those
events as to which the notice requirement has been waived by
regulation.
“Required
Lenders”
means,
at any time, Lenders which are then in compliance with their obligations
hereunder (as determined by the Agent) and holding in the aggregate at least
51%
of (a) the Revolving Commitments (and Participation Interests therein) or
(b) if the Commitments have been terminated, the outstanding Loans and
Participation Interests (including the Participation Interests of the Issuing
Lender in any Letters of Credit).
“Requirement
of Law”
means,
as to any Person, the certificate of incorporation and by-laws or other
organizational or governing documents of such Person, and any law, treaty,
rule
or regulation or determination of an arbitrator or a court or other Governmental
Authority, in each case applicable to or binding upon such Person or any of
its
material property is subject.
“Responsible
Officer”
means
either the president, chief executive officer or chief financial officer of
the
Borrower.
“Restricted
Payment”
means
(a) any dividend or other distribution, direct or indirect, on account of
any shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding, (b) any redemption, retirement, sinking fund or
similar payment, purchase or other acquisition for value, direct or indirect,
of
any shares of any class of Capital Stock of any Consolidated Party, now or
hereafter outstanding and (c) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of Capital Stock of any Consolidated Party, now or hereafter
outstanding.
20
“Revolving
Commitment”
means,
with respect to each Lender, its Sweep Plus Revolving Commitment and its
Non-Sweep Revolving Commitment.
“Revolving
Commitment Percentage”
means,
for any Lender, the percentage identified as its Revolving Commitment Percentage
on Schedule 2.1(a),
as such
percentage may be modified in connection with any assignment made in accordance
with the provisions of Section 11.3.
“Revolving
Committed Amount”
shall
mean the Sweep Plus Revolving Committed Amount and the Non-Sweep Revolving
Committed Amount.
“Revolving
Loans”
shall
mean the Sweep Plus Revolving Loans and/or the Non-Sweep Revolving Loans, as
applicable.
“Revolving
Note”
or
“Revolving
Notes”
means
the promissory notes of the Borrower in favor of each of the Lenders evidencing
the Revolving Loans provided pursuant to Section 2.1 and Section 2.2,
individually or collectively, as appropriate, as such promissory notes may
be
amended, modified, restated, supplemented, extended, renewed or replaced from
time to time.
“S&P”
means
Standard & Poor’s Ratings Group, a division of The McGraw Hill, Inc., or any
successor or assignee of the business of such division in the business of rating
securities.
“Sale
and Leaseback Transaction”
means
any direct or indirect arrangement with any Person or to which any such Person
is a party, providing for the leasing to any Consolidated Party of any Property,
whether owned by such Consolidated Party as of the Closing Date or later
acquired, which has been or is to be sold or transferred by such Consolidated
Party to such Person or to any other Person from whom funds have been, or are
to
be, advanced by such Person on the security of such Property.
“Sanctioned
Country”
shall
mean a country subject to a sanctions program identified on the list maintained
by OFAC and available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxxxxxxxx/xxxxx.xxxx,
or as
otherwise published from time to time.
“Sanctioned
Person”
shall
mean (a)
a
Person named on the list of “Specially Designated Nationals and Blocked Persons”
maintained by OFAC available at xxxx://xxx.xxxxx.xxx/xxxxxxx/xxxxxx/xxxx/xxx/xxxxx.xxxx,
or as
otherwise published from time to time, or (b)
(i)
an
agency of the government of a Sanctioned Country, (ii)
an
organization controlled by a Sanctioned Country, or (iii)
a
person resident in a Sanctioned Country, to the extent subject to a sanctions
program administered by OFAC.
“SEC”
shall
mean the Securities Exchange Commission.
21
“Security
Agreement”
means
the security agreement dated as of the Closing Date in the form of Exhibit 1.1B
to be
executed in favor of the Agent by each of the Credit Parties, as amended,
modified, restated or supplemented from time to time.
“Services
Agreement”
shall
mean the Wachovia Sweep Plus Loan Service Agreement, by and among the Borrower
and Wachovia, as the same may be amended or modified from time to
time.
“Single
Employer Plan”
means
any Plan which is covered by Title IV of ERISA, but which is not a
Multiemployer Plan or a Multiple Employer Plan.
“Solvent”
or
“Solvency”
means,
with respect to any Person as of a particular date, that on such date
(a) such Person is able to realize upon its assets and pay its debts and
other liabilities, contingent obligations and other commitments as they mature
in the normal course of business, (b) such Person does not intend to, and
does not believe that it will, incur debts or liabilities beyond such Person’s
ability to pay as such debts and liabilities mature in their ordinary course,
(c) such Person is not engaged in a business or a transaction, and is not
about to engage in a business or a transaction, for which such Person’s Property
would constitute unreasonably small capital after giving due consideration
to
the prevailing practice in the industry in which such Person is engaged or
is to
engage, (d) the fair value of the Property of such Person is greater than
the total amount of liabilities, including, without limitation, contingent
liabilities, of such Person and (e) the present fair salable value of the
assets of such Person is not less than the amount that will be required to
pay
the probable liability of such Person on its debts as they become absolute
and
matured. In computing the amount of contingent liabilities at any time, it
is
intended that such liabilities will be computed at the amount which, in light
of
all the facts and circumstances existing at such time, represents the amount
that can reasonably be expected to become an actual or matured
liability.
“Standby
Letter of Credit Fee”
shall
have the meaning assigned to such term in Section 3.5(b)(i).
“Stock
Purchase Agreement”
means
the Preferred Stock Purchase Agreement dated June 8, 2004 between the Borrower
and BFC Financial Corporation.
“Subsidiary”
means,
as to any Person, (a) any corporation more than 50% of whose Capital Stock
of any class or classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation (irrespective of whether
or not at the time, any class or classes of such corporation shall have or
might
have voting power by reason of the happening of any contingency) is at the
time
owned by such Person directly or indirectly through Subsidiaries, and
(b) any partnership, association, joint venture or other entity in which
such Person directly or indirectly through Subsidiaries has more than 50% equity
interest at any time.
“Sweep
Plus Revolving Commitment”
means,
with respect to each Lender, the commitment of such Lender in an aggregate
principal amount at any time outstanding of up to such Lender’s Revolving
Commitment Percentage of the Sweep Plus Revolving Committed Amount to make
Sweep
Plus Revolving Loans in accordance with the provisions of
Section 2.1.
22
“Sweep
Plus Revolving Committed Amount”
shall
mean an aggregate amount not to exceed $75,000,000 less outstanding Non-Sweep
Revolving Loans less outstanding LOC Obligations.
“Sweep
Plus Revolving Loans”
shall
mean those certain revolving credit loans requested by the Borrower in Dollars
made pursuant to the Services Agreement.
“Taxes”
means
such term as is defined in Section 3.11.
“Trade
Letter of Credit Fee”
shall
have the meaning assigned to such term in Section 3.5(b)(ii).
“Voting
Stock”
means,
with respect to any Person, Capital Stock issued by such Person the holders
of
which are ordinarily, in the absence of contingencies, entitled to vote for
the
election of directors (or persons performing similar functions) of such Person,
even though the right so to vote has been suspended by the happening of such
a
contingency.
“Wachovia”
means
Wachovia Bank, National Association and its successors.
“Wholly
Owned Subsidiary”
of
any
Person means any Subsidiary 100% of whose Voting Stock or other equity interests
is at the time owned by such Person directly or indirectly through other Wholly
Owned Subsidiaries.
1.2
Computation
of Time Periods.
For
purposes of computation of periods of time hereunder, the word “from” means
“from and including” and the words “to” and “until” each mean “to but
excluding.”
1.3
Accounting
Terms.
Except
as
otherwise expressly provided herein, all accounting terms used herein shall
be
interpreted, and all financial statements and certificates and reports as to
financial matters required to be delivered to the Lenders hereunder shall be
prepared, in accordance with GAAP applied on a consistent basis. All
calculations made for the purposes of determining compliance with this Credit
Agreement shall (except as otherwise expressly provided herein) be made by
application of GAAP applied on a basis consistent with the most recent annual
or
quarterly financial statements delivered pursuant to Section 7.1;
provided,
however,
if
(a) the Borrower shall object to determining such compliance on such basis
at the time of delivery of such financial statements due to any change in GAAP
or the rules promulgated with respect thereto or (b) the Agent or the
Required Lenders shall so object in writing within sixty (60) days after
delivery of such financial statements, then such calculations shall be made
on a
basis consistent with the most recent financial statements delivered by the
Borrower to the Lenders as to which no such objection shall have been
made.
23
1.4
Execution
of Documents.
Unless
otherwise specified, all Credit Documents and all other certificates executed
in
connection therewith must be signed by a Responsible Officer.
SECTION
2
CREDIT
FACILITIES
2.1
Sweep
Plus Revolving Loans.
(a)
Sweep
Plus Revolving Borrowings.
(i)
The
Agent
shall calculate the daily net cash position (the “Net
Cash Position”)
in the
Borrower’s Checking Account, which is calculated by using the opening balance of
available funds in the Checking Account, plus any deposits of collected funds
posted to the Checking Account, minus (A) the daily posting of debits and
account holds placed against the Checking Account by the Agent and (B) any
loan
floor which has been established by the Agent to cover returns, overdrafts,
unpaid fees and charges assessed by the Agent.
(ii)
In
the
event the Net Cash Position calculated above is a deficit on any Business Day,
the Agent will extend a Sweep Plus Revolving Loan to the Borrower’s Checking
Account on such Business Day in the amount of such deficit; provided,
however,
no
borrowing when taken together with all other outstanding borrowings shall exceed
the Sweep Plus Revolving Committed Amount. Sweep Plus Revolving Loans are hereby
authorized to be made automatically by the Agent on a daily basis, without
requiring the Borrower to provide a Notice of Borrowing. No Sweep Plus Revolving
Loan shall be required to be made if the Borrower is in material default under
the Services Agreement or if a Default or Event of Default hereunder has
occurred and remains outstanding.
(iii)
The
Agent
may debit the Checking Account and/or make Sweep Plus Revolving Loans to the
Borrower and apply such amounts to the payment of interest on Sweep Plus
Revolving Loans made hereunder or fees described in Section 3.5 hereunder and
the Agent is hereby irrevocably authorized to do so without the consent of
or
notice to the Borrower. The Services Agreement shall control the manner in
which
funds are transferred between the Checking Account and the Sweep Plus Revolving
Loans for credit or debit to the Sweep Plus Revolving Loans. In the event of
an
amendment, modification or termination of the Services Agreement, such
amendment, modification or termination may be effected by a separate agreement
without the necessity of amending this Credit Agreement.
24
(iv)
All
Sweep
Plus Revolving Loans extended to the Borrower pursuant to the Services Agreement
shall be made to the Checking Account. The Borrower shall pay all of the Agent’s
standard fees and charges in connection with the Checking Account and the
Services Agreement, as such fees and charges may change from time to time.
The
Borrower hereby grants to the Agent, on behalf of itself and the other Lenders,
a security interest in, right of set-off against and lien upon all items and
balances held in the Checking Account as collateral for the Credit Party
Obligations.
(b)
Repayment
of Sweep Plus Revolving Loans.
In the
event that the Sweep Plus Revolving Loans are outstanding and the Net Cash
Position is a surplus on any Business Day, the Agent shall, in accordance with
the Services Agreement, automatically debit the Checking Account on such
Business Day in an amount equal to the lesser of such surplus and the principal
amount of Sweep Plus Revolving Loans outstanding. Each Sweep Plus Revolving
Loan
borrowing shall be due and payable on the Maturity Date.
(c)
Interest.
Subject
to the provisions of Section 3.1,
(i)
Base
Rate Loans.
During
such periods as Revolving Loans shall be comprised in whole or in part of Base
Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal
to the Adjusted Base Rate.
(ii)
Eurodollar
Market Index Rate Loans.
During
such periods as Revolving Loans shall be comprised in whole or in part of
Eurodollar Market Index Rate Loans, such Eurodollar Market Index Rate Loans
shall bear interest at a per annum rate equal to the Adjusted Eurodollar Market
Index Rate.
Interest
on Revolving Loans shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified herein).
(d)
Sweep
Plus Revolving Notes.
The
Sweep Plus Revolving Loans made by the Agent shall be evidenced by a duly
executed promissory note of the Borrower to the Agent in an original principal
amount equal to the Sweep Plus Revolving Committed Amount and in substantially
the form of Exhibit 2.1(d).
2.2
Non-Sweep
Revolving Loans.
(a)
Non-Sweep
Revolving Commitment.
Subject
to the terms and conditions hereof and in reliance upon the representations
and
warranties set forth herein, each Lender severally agrees to make available
to
the Borrower such Lender’s Revolving Commitment Percentage of revolving credit
loans requested by the Borrower in Dollars (“Non-Sweep
Revolving Loans”)
from
time to time from the Closing Date until the Maturity Date, or such earlier
date
as the Non-Sweep Revolving Commitments shall have been terminated as provided
herein for the purposes hereinafter set forth; provided,
however,
that
the sum of the aggregate principal amount of outstanding Non-Sweep Revolving
Loans shall not exceed FIFTEEN
MILLION DOLLARS ($15,000,000)
(as such
aggregate maximum amount may be reduced from time to time as provided in
Section 3.4, the “Non-Sweep
Revolving Committed Amount”);
provided,
further,
(A) with regard to each Lender individually, such Lender’s outstanding
Non-Sweep Revolving Loans shall not exceed such Lender’s Revolving Commitment
Percentage of the Non-Sweep Revolving Committed Amount, (B) the aggregate
principal amount of outstanding Revolving Loans plus
LOC
Obligations outstanding shall not exceed the Revolving Committed Amount, and
(C)
with regard to each Lender individually, such Lender’s outstanding Sweep Plus
Revolving Loans shall not exceed such Lender’s Revolving Commitment Percentage
of the Sweep Plus Revolving Committed Amount. Non-Sweep Revolving Loans may
consist of Base Rate Loans, Eurodollar Loans, Eurodollar Market Index Rate
Loans, or a combination thereof, as the Borrower may request, and may be repaid
and reborrowed in accordance with the provisions hereof; provided,
however,
that no
more than 5 Eurodollar Loans shall be outstanding hereunder at any time. For
purposes hereof, Eurodollar Loans with different Interest Periods shall be
considered as separate Eurodollar Loans, even if they begin on the same date,
although borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period. Non-Sweep
Revolving Loans hereunder may be repaid and reborrowed in accordance with the
provisions hereof.
25
(b)
Non-Sweep
Revolving Loan Borrowings.
(i)
Notice
of Borrowing.
The
Borrower shall request a Non-Sweep Revolving Loan borrowing by written notice
(or telephonic notice promptly confirmed in writing) to the Agent not later
than
11:00 A.M. (Charlotte, North Carolina time) on the Business Day prior to
the date of the requested borrowing in the case of Base Rate Loans, and on
the
third Business Day prior to the date of the requested borrowing in the case
of
Eurodollar Loans or Eurodollar Market Index Rate Loans. Each such request for
borrowing shall be irrevocable and shall specify (A) that a Non-Sweep
Revolving Loan is requested, (B) the date of the requested borrowing (which
shall be a Business Day), (C) the aggregate principal amount to be
borrowed, and (D) whether the borrowing shall be comprised of Base Rate
Loans, Eurodollar Loans, Eurodollar Market Index Rate Loans or a combination
thereof, and if Eurodollar Loans are requested, the Interest Period(s) therefor.
If the Borrower shall fail to specify in any such Notice of Borrowing
(I) an applicable Interest Period in the case of a Eurodollar Loan, then
such notice shall be deemed to be a request for an Interest Period of one month,
or (II) the type of Non-Sweep Revolving Loan requested, then such notice
shall be deemed to be a request for a Base Rate Loan hereunder. The Agent shall
give notice to each affected Lender promptly upon receipt of each Notice of
Borrowing pursuant to this Section 2.2(b)(i), the contents thereof and each
such Lender’s share of any borrowing to be made pursuant thereto.
(ii)
Minimum
Amounts.
Each
Eurodollar Loan, Eurodollar Index Rate Loan or Base Rate Loan that is a
Non-Sweep Revolving Loan shall be in a minimum aggregate principal amount of
$500,000 and integral multiples of $100,000 in
excess
thereof (or the remaining amount of the Non-Sweep Revolving Committed Amount,
if
less).
26
(iii)
Advances.
Each
Lender will make its Revolving Commitment Percentage of each Non-Sweep Revolving
Loan borrowing available to the Agent for the account of the Borrower as
specified in Section 3.15(a), or in such other manner as the Agent may specify
in writing, by 1:00 P.M. (Charlotte, North Carolina time) on the date specified
in the applicable Notice of Borrowing in Dollars and in funds immediately
available to the Agent. Such borrowing will then be made available to the
Borrower by the Agent by crediting the account of the Borrower on the books
of
such office with the aggregate of the amounts made available to the Agent by
the
Lenders and in like funds as received by the Agent.
(c)
Repayment
of Non-Sweep Revolving Loan Borrowings.
The
principal amount of all Non-Sweep Revolving Loans shall be due and payable
in
full on the Maturity Date, unless accelerated sooner pursuant to
Section 9.2.
(d)
Interest.
Subject
to the provisions of Section 3.1,
(i)
Base
Rate Loans.
During
such periods as Revolving Loans shall be comprised in whole or in part of Base
Rate Loans, such Base Rate Loans shall bear interest at a per annum rate equal
to the Adjusted Base Rate.
(ii)
Eurodollar
Loans.
During
such periods as Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at a per annum
rate
equal to the Adjusted Eurodollar Rate.
(iii)
Eurodollar
Market Index Rate Loans.
During
such periods as Revolving Loans shall be comprised in whole or in part of
Eurodollar Market Index Rate Loans, such Eurodollar Market Index Rate Loans
shall bear interest at a per annum rate equal to the Adjusted Eurodollar Market
Index Rate.
Interest
on Revolving Loans shall be payable in arrears on each applicable Interest
Payment Date (or at such other times as may be specified herein).
(e)
Revolving
Notes.
The
Non-Sweep Revolving Loans made by each Lender shall be evidenced by a duly
executed promissory note of the Borrower to such Lender in an original principal
amount equal to such Lender’s Revolving Commitment Percentage of the Non-Sweep
Revolving Committed Amount and in substantially the form of Exhibit 2.1(d).
2.3
Letter
of Credit Subfacility.
(a)
Issuance.
Subject
to the terms and conditions hereof and of the LOC Documents, if any, and any
other terms and conditions which the Issuing Lender may reasonably require
and
in reliance upon the representations and warranties set forth herein, the
Issuing Lender agrees to issue, and each Lender severally agrees to participate
in the issuance by the Issuing Lender of, standby and trade Letters of Credit
in
Dollars from time to time from the Closing Date until the Maturity Date as
the
Borrower may request, in a form acceptable to the Issuing Lender; provided,
however,
that
(i) the LOC Obligations outstanding shall not at any time exceed
FIVE
MILLION DOLLARS ($5,000,000)
(the
“LOC
Committed Amount”)
and
(ii) the sum of the aggregate principal amount of outstanding Revolving
Loans plus
LOC
Obligations outstanding shall not at any time exceed the Revolving Committed
Amount. No Letter of Credit shall (x) have an original expiry date more
than one year from the date of issuance or (y) as originally issued or as
extended, have an expiry date extending beyond the Maturity Date. Each Letter
of
Credit shall comply with the related LOC Documents. The issuance and expiry
dates of each Letter of Credit shall be a Business Day.
27
(b)
Notice
and Reports.
The
request for the issuance of a Letter of Credit shall be submitted by the
Borrower to the Issuing Lender at least three (3) Business Days prior to
the requested date of issuance. The Issuing Lender will, at least quarterly
and
more frequently upon request, disseminate to each of the Lenders a detailed
report specifying the Letters of Credit which are then issued and outstanding
and any activity with respect thereto which may have occurred since the date
of
the prior report, and including therein, among other things, the beneficiary,
the face amount and the expiry date, as well as any payment or expirations
which
may have occurred.
(c)
Participation.
Each
Lender, upon issuance of a Letter of Credit, shall be deemed to have purchased
without recourse a Participation Interest from the applicable Issuing Lender
in
such Letter of Credit and the obligations arising thereunder and any collateral
relating thereto, in each case in an amount equal to its pro rata share of
the
obligations under such Letter of Credit (based on the respective Revolving
Commitment Percentages of the Lenders) and shall absolutely, unconditionally
and
irrevocably assume and be obligated to pay to the Issuing Lender and discharge
when due, its pro rata share of the obligations arising under such Letter of
Credit. Without limiting the scope and nature of each Lender’s Participation
Interest in any Letter of Credit, to the extent that the Issuing Lender has
not
been reimbursed as required hereunder or under any such Letter of Credit, each
such Lender shall pay to the Issuing Lender its pro rata share of such
unreimbursed drawing in same day funds on the day of notification by the Issuing
Lender of an unreimbursed drawing pursuant to the provisions of
subsection (d) below. The obligation of each Lender to so reimburse the
Issuing Lender shall be absolute and unconditional and shall not be affected
by
the occurrence of a Default, an Event of Default or any other occurrence or
event. Any such reimbursement shall not relieve or otherwise impair the
obligation of the Borrower to reimburse the Issuing Lender under any Letter
of
Credit, together with interest as hereinafter provided.
28
(d)
Reimbursement.
In the
event of any drawing under any Letter of Credit, the Issuing Lender will
promptly notify the Borrower. Unless the Borrower shall immediately notify
the
Issuing Lender that the Borrower intends to otherwise reimburse the Issuing
Lender for such drawing, the Borrower shall be deemed to have requested that
the
Lenders make a Sweep Plus Revolving Loan in the amount of the drawing as
provided in subsection (e) below on the related Letter of Credit, the
proceeds of which will be used to satisfy the related reimbursement obligations.
The Borrower promises to reimburse the Issuing Lender on the day of drawing
under any Letter of Credit (either with the proceeds of a Sweep Plus Revolving
Loan obtained hereunder or otherwise) in same day funds. If the Borrower shall
fail to reimburse the Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum rate equal to the
Base
Rate plus
3%. The
Borrower’s reimbursement obligations hereunder shall be absolute and
unconditional under all circumstances irrespective of any rights of setoff,
counterclaim or defense to payment the Borrower may claim or have against the
Issuing Lender, the Agent, the Lenders, the beneficiary of the Letter of Credit
drawn upon or any other Person, including without limitation any defense based
on any failure of the Borrower or any other Credit Party to receive
consideration or the legality, validity, regularity or unenforceability of
the
Letter of Credit. The Issuing Lender will promptly notify the other Lenders
of
the amount of any unreimbursed drawing and each Lender shall promptly pay to
the
Agent for the account of the Issuing Lender in Dollars and in immediately
available funds, the amount of such Lender’s pro rata share of such unreimbursed
drawing. Such payment shall be made on the day such notice is received by such
Lender from the Issuing Lender if such notice is received at or before
2:00 P.M. (Charlotte, North Carolina time) otherwise such payment shall be
made at or before 12:00 Noon (Charlotte, North Carolina time) on the
Business Day next succeeding the day such notice is received. If such Lender
does not pay such amount to the Issuing Lender in full upon such request, such
Lender shall, on demand, pay to the Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the date of such drawing
until such Lender pays such amount to the Issuing Lender in full at a rate
per
annum equal to, if paid within two (2) Business Days of the date that such
Lender is required to make payments of such amount pursuant to the preceding
sentence, the Federal Funds Rate and thereafter at a rate equal to the Base
Rate. Each Lender’s obligation to make such payment to the Issuing Lender, and
the right of the Issuing Lender to receive the same, shall be absolute and
unconditional, shall not be affected by any circumstance whatsoever and without
regard to the termination of this Credit Agreement or the Commitments hereunder,
the existence of a Default or Event of Default or the acceleration of the
obligations of the Borrower hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever. Simultaneously with the making
of each such payment by a Lender to the Issuing Lender, such Lender shall,
automatically and without any further action on the part of the Issuing Lender
or such Lender, acquire a Participation Interest in an amount equal to such
payment (excluding the portion of such payment constituting interest owing
to
the Issuing Lender) in the related unreimbursed drawing portion of the LOC
Obligation and in the interest thereon and in the related LOC Documents, and
shall have a claim against the Borrower with respect thereto. The Borrower’s
reimbursement obligations in respect of each Existing Letter of Credit, and
each
Revolving Lender’s participation obligations in connection therewith, shall be
governed by the terms of this Credit Agreement. The Existing Letters of Credit
shall, as of the Closing Date, be deemed to have been issued as Letters of
Credit hereunder and subject to and governed by the terms of this
Agreement.
29
(e)
Repayment
with Revolving Loans.
On any
day on which the Borrower shall have requested, or been deemed to have
requested, a Revolving Loan advance to reimburse a drawing under a Letter of
Credit, the Agent shall give notice to the Lenders that a Sweep Plus Revolving
Loan has been requested or deemed requested by the Borrower to be made in
connection with a drawing under a Letter of Credit, in which case a Sweep Plus
Revolving Loan advance comprised of Base Rate Loans (or Eurodollar Loans to
the
extent the Borrower has complied with the procedures of Section 2.2(b)(i)
with respect thereto) shall be immediately made to the Borrower by all Lenders
(notwithstanding any termination of the Commitments pursuant to
Section 9.2) pro rata
based on
the respective Revolving Commitment Percentages of the Lenders (determined
before giving effect to any termination of the Commitments pursuant to
Section 9.2) and the proceeds thereof shall be paid directly to the Issuing
Lender for application to the respective LOC Obligations. Each such Lender
hereby irrevocably agrees to make its pro rata share of each such Revolving
Loan
immediately upon any such request or deemed request in the amount, in the manner
and on the date specified in the preceding sentence notwithstanding
(i) the amount of such borrowing may not comply with the minimum amount for
advances of Revolving Loans otherwise required hereunder, (ii) whether any
conditions specified in Section 5.2 are then satisfied, (iii) whether
a Default or an Event of Default then exists, (iv) failure for any such
request or deemed request for a Sweep Plus Revolving Loan to be made by the
time
otherwise required hereunder, (v) whether the date of such borrowing is a
date on which Revolving Loans are otherwise permitted to be made hereunder
or
(vi) any termination of the Commitments relating thereto immediately prior
to or contemporaneously with such borrowing. In the event that any Sweep Plus
Revolving Loan cannot for any reason be made on the date otherwise required
above (including, without limitation, as a result of the commencement of a
proceeding under the Bankruptcy Code with respect to the Borrower or any Credit
Party), then each such Lender hereby agrees that it shall forthwith purchase
(as
of the date such borrowing would otherwise have occurred, but adjusted for
any
payments received from the Borrower on or after such date and prior to such
purchase) from the Issuing Lender such Participation Interests in the
outstanding LOC Obligations as shall be necessary to cause each such Lender
to
share in such LOC Obligations ratably (based upon the respective Revolving
Commitment Percentages of the Lenders (determined before giving effect to any
termination of the Commitments pursuant to Section 9.2)), provided
that at
the time any purchase of Participation Interests pursuant to this sentence
is
actually made, the purchasing Lender shall be required to pay to the Issuing
Lender, to the extent not paid to the Issuer by the Borrower in accordance
with
the terms of subsection (d) above, interest on the principal amount of
Participation Interests purchased for each day from and including the day upon
which such borrowing would otherwise have occurred to but excluding the date
of
payment for such Participation Interests, at the rate equal to, if paid within
two (2) Business Days of the date of the Sweep Plus Revolving Loan advance,
the Federal Funds Rate, and thereafter at a rate equal to the Base
Rate.
(f)
Designation
of Consolidated Parties as Account Parties.
Notwithstanding anything to the contrary set forth in this Credit Agreement,
including without limitation Section 2.3(a), a Letter of Credit issued
hereunder may contain a statement to the effect that such Letter of Credit
is
issued for the account of a Consolidated Party other than the Borrower, provided
that notwithstanding such statement, the Borrower shall be the actual account
party for all purposes of this Credit Agreement for such Letter of Credit and
such statement shall not affect the Borrower’s reimbursement obligations
hereunder with respect to such Letter of Credit.
30
(g)
Renewal,
Extension.
The
renewal or extension of any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as the issuance of a new Letter of Credit
hereunder.
(h)
Uniform
Customs and Practices.
The
Issuing Lender may have the Letters of Credit be subject to The Uniform Customs
and Practice for Documentary Credits, as published as of the date of issue
by
the International Chamber of Commerce (the “UCP”),
in
which case the UCP may be incorporated therein and deemed in all respects to
be
a part thereof.
(i)
Indemnification;
Nature of Issuing Lender’s Duties.
(i)
In
addition to its other obligations under this Section 2.3, the Borrower
hereby agrees to pay, and protect, indemnify and save each Lender harmless
from
and against, any and all claims, demands, liabilities, damages, losses, costs,
charges and expenses (including reasonable attorneys’ fees) (unless the same
shall have resulted from such Lender’s gross negligence or willful misconduct)
that such Lender may incur or be subject to as a consequence, direct or
indirect, of (A) the issuance of any Letter of Credit or (B) the
failure of such Lender to honor a drawing under a Letter of Credit as a result
of any act or omission, whether rightful or wrongful, of any present or future
de
jure
or
de
facto
government or Governmental Authority (all such acts or omissions, herein called
“Government
Acts”).
(ii)
As
between the Borrower and the Lenders (including the Issuing Lender), the
Borrower shall assume all risks of the acts, omissions or misuse of any Letter
of Credit by the beneficiary thereof. Unless the same shall have resulted from
such Lenders gross negligence or willful misconduct, no Lender (including the
Issuing Lender) shall be responsible: (A) for the form, validity,
sufficiency, accuracy, genuineness or legal effect of any document submitted
by
any party in connection with the application for and issuance of any Letter
of
Credit, even if it should in fact prove to be in any or all respects invalid,
insufficient, inaccurate, fraudulent or forged; (B) for the validity or
sufficiency of any instrument transferring or assigning or purporting to
transfer or assign any Letter of Credit or the rights or benefits thereunder
or
proceeds thereof, in whole or in part, that may prove to be invalid or
ineffective for any reason; (C) for errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (D) for any loss or
delay in the transmission or otherwise of any document required in order to
make
a drawing under a Letter of Credit or of the proceeds thereof; and (E) for
any consequences arising from causes beyond the control of such Lender,
including, without limitation, any Government Acts. None of the above shall
affect, impair, or prevent the vesting of the Issuing Lender’s rights or powers
hereunder.
31
(iii)
In
furtherance and extension and not in limitation of the specific provisions
hereinabove set forth, any action taken or omitted by any Lender (including
the
Issuing Lender), under or in connection with any Letter of Credit or the related
certificates, if taken or omitted in good faith, shall not put such Lender
under
any resulting liability to the Borrower or any other Credit Party. It is the
intention of the parties that this Credit Agreement shall be construed and
applied to protect and indemnify each Lender (including the Issuing Lender)
against any and all risks involved in the issuance of the Letters of Credit,
all
of which risks are hereby assumed by the Borrower (on behalf of itself and
each
of the other Credit Parties), including, without limitation, any and all
Government Acts. No Lender (including the Issuing Lender) shall, in any way,
be
liable for any failure by such Lender or anyone else to pay any drawing under
any Letter of Credit as a result of any Government Acts or any other cause
beyond the control of such Lender.
(iv)
Nothing
in this subsection is intended to limit the reimbursement obligations of
the Borrower contained in subsection (d) above. The obligations of the
Borrower under this subsection shall survive the termination of this Credit
Agreement. No act or omissions of any current or prior beneficiary of a Letter
of Credit shall in any way affect or impair the rights of the Lenders (including
the Issuing Lender) to enforce any right, power or benefit under this Credit
Agreement.
(v)
Notwithstanding
anything to the contrary contained in this subsection, the Borrower shall have
no obligation to indemnify any Lender (including the Issuing Lender) in respect
of any liability incurred by such Lender (A) arising solely out of the
gross negligence or willful misconduct of such Lender, as determined by a court
of competent jurisdiction, or (B) caused by such Lender’s failure to pay
under any Letter of Credit after presentation to it of a request strictly
complying with the terms and conditions of such Letter of Credit, as determined
by a court of competent jurisdiction, unless such payment is prohibited by
any
law, regulation, court order or decree.
(j)
Responsibility
of Issuing Lender.
It is
expressly understood and agreed that the obligations of the Issuing Lender
hereunder to the Lenders are only those expressly set forth in this Credit
Agreement and that the Issuing Lender shall be entitled to assume that the
conditions precedent set forth in Section 5.2 have been satisfied unless it
shall have acquired actual knowledge that any such condition precedent has
not
been satisfied; provided,
however,
that
nothing set forth in this Section 2.3 shall be deemed to prejudice the
right of any Lender to recover from the Issuing Lender any amounts made
available by such Lender to the Issuing Lender pursuant to this Section 2.3
in the event that it is determined by a court of competent jurisdiction that
the
payment with respect to a Letter of Credit constituted gross negligence or
willful misconduct on the part of the Issuing Lender.
32
(k)
Conflict
with LOC Documents.
In the
event of any conflict between this Credit Agreement and any LOC Document
(including any letter of credit application), this Credit Agreement shall
control.
SECTION
3
OTHER
PROVISIONS RELATING TO CREDIT FACILITIES
3.1
Default
Rate.
Upon
the
occurrence, and during the continuance, of an Event of Default, the principal
of
and, to the extent permitted by law, interest on the Loans and any other amounts
owing hereunder or under the other Credit Documents shall bear interest, payable
on demand, at a per annum rate equal to the Base Rate plus
3%.
3.2
Extension
and Conversion.
Subject
to the terms of Section 5.2, the Borrower shall have the option, on any
Business Day, to extend existing Loans into a subsequent permissible Interest
Period or to convert Loans into Loans of another interest rate type;
provided,
however,
that
(i) except as provided in Section 3.8, Eurodollar Loans may be
converted into Base Rate Loans and/or Eurodollar Market Rate Index Loans only
on
the last day of the Interest Period applicable thereto, (ii) Eurodollar
Loans may be extended, and Base Rate Loans and/or Eurodollar Market Index Rate
Loans may be converted into Eurodollar Loans, only if no Default or Event of
Default is in existence on the date of extension or conversion, (iii) Loans
extended as, or converted into, Eurodollar Loans shall be subject to the terms
of the definition of “Interest
Period”
set
forth in Section 1.1 and shall be in such minimum amounts as provided in,
with respect to Revolving Loans, Section 2.2(b)(ii), (iv) no more than
5 Eurodollar
Loans shall be outstanding hereunder at any time (it being understood that,
for
purposes hereof, Eurodollar Loans with different Interest Periods shall be
considered as separate Eurodollar Loans, even if they begin on the same date,
although borrowings, extensions and conversions may, in accordance with the
provisions hereof, be combined at the end of existing Interest Periods to
constitute a new Eurodollar Loan with a single Interest Period) and (v) any
request for extension or conversion of a Eurodollar Loan which shall fail to
specify an Interest Period shall be deemed to be a request for an Interest
Period of one month. Each such extension or conversion shall be effected by
the
Borrower by giving a Notice of Extension/Conversion (or telephonic notice
promptly confirmed in writing) to the office of the Agent specified in specified
in Schedule 2.1(a),
or at
such other office as the Agent may designate in writing, prior to
11:00 A.M. (Charlotte, North Carolina time) on the Business Day of, in the
case of the conversion of a Eurodollar Loan into a Base Rate Loan, and on the
third Business Day prior to, in the case of the extension of a Eurodollar Loan
as, or conversion of a Base Rate Loan and/or a Eurodollar Market Index Rate
Loan
into, a Eurodollar Loan, the date of the proposed extension or conversion,
specifying the date of the proposed extension or conversion, the Loans to be
so
extended or converted, the types of Loans into which such Loans are to be
converted and, if appropriate, the applicable Interest Periods with respect
thereto. Each request for extension or conversion shall be irrevocable and
shall
constitute a representation and warranty by the Borrower of the matters
specified in subsections (b), (c) and (d) of Section 5.2. In the event
the Borrower fails to request extension or conversion of any Eurodollar Loan
in
accordance with this Section, or any such conversion or extension is not
permitted or required by this Section, then such Eurodollar Loan shall be
automatically converted into a Base Rate Loan at the end of the Interest Period
applicable thereto. The Agent shall give each Lender notice as promptly as
practicable of any such proposed extension or conversion affecting any
Loan.
33
3.3
Prepayments.
(a)
Voluntary
Prepayments.
The
Borrower shall have the right to prepay Non-Sweep Revolving Loans in whole
or in
part from time to time, but otherwise without premium or penalty; provided,
however,
that
each partial prepayment of Loans shall be in a minimum principal amount of
$250,000 and integral multiples of $50,000. All prepayments under this
Section 3.3(a) shall be subject to Section 3.12.
(b)
Mandatory
Prepayments.
(i)
Revolving
Committed Amount.
If at
any time, the sum of the aggregate principal amount of outstanding Revolving
Loans plus
LOC
Obligations outstanding shall exceed the Revolving Committed Amount, the
Borrower immediately shall prepay the applicable Revolving Loans or (after
all
Revolving Loans have been repaid) cash collateralize the LOC Obligations, in
an
amount sufficient to eliminate such excess.
(ii)
Asset
Dispositions.
Immediately upon the occurrence of any Asset Disposition other than an Excluded
Asset Disposition, the Borrower shall prepay the Loans in an aggregate amount
equal to the Net Cash Proceeds of the related Asset Disposition (such prepayment
to be applied as set forth in clause (iii) below); provided,
however,
that no
mandatory prepayments shall be required hereunder if, (A)
in any
two year period the total aggregate amount of Net Cash Proceeds received from
Asset Dispositions does not exceed $10,000,000; it being expressly agreed that
any mandatory prepayment that is required after giving effect to the terms
of
this subclause (A) shall equal the amount by which such Net Cash Proceeds
exceeds $10,000,000 for such two year period, or (B)
the
Borrower delivers to the Agent a certificate stating that the Credit Parties
intend to use such Net Cash Proceeds to acquire like assets useful to the
business of the Credit Parties within 730 days of the receipt of such Net Cash
Proceeds, it being expressly agreed that Net Cash Proceeds not so reinvested
and
in excess of the available basket set forth in subclause (A) hereof shall be
applied to prepay the Loans and/or cash collateralize the LOC Obligations
immediately thereafter (such prepayment to be applied as set forth in clause
(iii) below).
34
(iii)
Application
of Mandatory Prepayments.
All
amounts required to be paid pursuant to this Section 3.3(b) shall be applied
as
follows: (A) with respect to all amounts prepaid pursuant to Section 3.3(b)(i),
to Revolving Loans and (after all Revolving Loans have been repaid) to a cash
collateral account in respect of LOC Obligations, (B) with respect to all
amounts prepaid pursuant to Section 3.3(b)(ii), to the Revolving Loans and
(after all Revolving Loans have been repaid) to a cash collateral account in
respect of LOC Obligations (with a corresponding reduction in the Revolving
Committed Amount in an amount equal to all amounts applied pursuant to this
clause (iii)). Within the parameters of the applications set forth above,
prepayments shall be applied first to Eurodollar Market Index Rate Loans, second
to Base Rate Loans and then to Eurodollar Loans in direct order of Interest
Period maturities. All prepayments under this Section 3.3(b) shall be subject
to
Section 3.12.
3.4
Termination
and Reduction of Revolving Committed Amount.
(a)
Voluntary
Reductions.
The
Borrower may from time to time permanently reduce or terminate the Revolving
Committed Amount in whole or in part (in minimum aggregate amounts of $5,000,000
or, if less, the full remaining amount of the then applicable Revolving
Committed Amount)) upon five Business Days’ prior written notice to the Agent;
provided,
however,
no such
termination or reduction shall be made which would cause the aggregate principal
amount of outstanding Revolving Loans plus
LOC
Obligations outstanding to exceed the Revolving Committed Amount, unless,
concurrently with such termination or reduction, the Revolving Loans are repaid
to the extent necessary to eliminate such excess. The Agent shall promptly
notify each affected Lender of receipt by the Agent of any notice from the
Borrower pursuant to this Section 3.4(a).
(b)
Mandatory
Reductions.
On any
date that the Revolving Loans are required to be prepaid pursuant to the terms
of Section 3.3(b)(i) or (ii), the Revolving Committed Amount automatically
shall be permanently reduced by the amount of such required prepayment and/or
reduction.
(c)
Maturity
Date.
The
Revolving Commitments of the Lenders and the LOC Commitment of the Issuing
Lender shall automatically terminate on the Maturity Date.
(d)
General.
The
Borrower shall pay to the Agent for the account of the Lenders in accordance
with the terms of Section 3.5(a), on the date of each termination or
reduction of the Revolving Committed Amount, the Commitment Fee accrued through
the date of such termination or reduction on the amount of the Revolving
Committed Amount so terminated or reduced.
3.5
Fees.
(a)
Commitment
Fee.
In
consideration of the Revolving Commitments of the Lenders hereunder, the
Borrower agrees to pay to the Agent for the account of each Lender a fee (the
“Commitment
Fee”)
on the
unused portion of the Revolving Committed Amount computed at a per annum rate
for each day during the applicable Commitment Fee Calculation Period
(hereinafter defined) at a rate equal to the Applicable Margin in effect from
time to time. The Commitment Fee shall commence to accrue on the Closing Date
and shall be due and payable in arrears on the last business day of each March,
June, September and December(and any date that the Revolving Committed Amount
is
reduced as provided in Section 3.4(a) and the Maturity Date) for the
immediately preceding quarter (or portion thereof) (each such quarter or portion
thereof for which the Commitment Fee is payable hereunder being herein referred
to as an “Commitment
Fee Calculation Period”),
beginning with the first of such dates to occur after the Closing
Date.
35
(b)
Letter
of Credit Fees.
(i)
Standby
Letter of Credit Issuance Fee.
In
consideration of the issuance of standby Letters of Credit hereunder, the
Borrower promises to pay to the Agent for the account of each Lender a fee
(the
“Standby
Letter of Credit Fee”)
on
such Lender’s Revolving Commitment Percentage of the maximum amount available to
be drawn under each such standby Letter of Credit computed at a per annum rate
for each day from the date of issuance to the date of expiration equal to the
Applicable Margin on the date of such issuance or renewal. The Standby Letter
of
Credit Fee will be payable annually upon issuance or renewal of each Letter
of
Credit.
(ii)
Trade
Letter of Credit Drawing Fee.
In
consideration of the issuance of trade Letters of Credit hereunder, the Borrower
promises to pay to the Agent for the account of each Lender a fee (the
“Trade
Letter of Credit Fee”)
equal
to one quarter of one percent (1/4%) on such Lender’s Revolving Commitment
Percentage of the amount of each drawing under any such trade Letter of Credit.
The Trade Letter of Credit Fee will be payable on each date of drawing under
a
trade Letter of Credit.
(iii)
Issuing
Lender Fees.
In
addition to the Standby Letter of Credit Fee payable pursuant to clause (i)
above and the Trade Letter of Credit Fee payable pursuant to clause (ii)
above, the Borrower promises to pay to the Issuing Lender for its own account
without sharing by the other Lenders the letter of credit fronting and
negotiation fees agreed to by the Borrower and the Issuing Lender from time
to
time and the customary charges from time to time of the Issuing Lender with
respect to the issuance, amendment, transfer, administration, cancellation
and
conversion of, and drawings under, such Letters of Credit (collectively, the
“Issuing
Lender Fees”).
3.6
Capital
Adequacy.
If
any
Lender has determined, after the date hereof, that the adoption or the becoming
effective of, or any change in, or any change by any Governmental Authority,
central bank or comparable agency charged with the interpretation or
administration thereof in the interpretation or administration of, any
applicable law, rule or regulation regarding capital adequacy, or compliance
by
such Lender with any request or directive regarding capital adequacy (whether
or
not having the force of law) of any such authority, central bank or comparable
agency, has or would have the effect of reducing the rate of return on such
Lender’s capital or assets as a consequence of its commitments or obligations
hereunder to a level below that which such Lender could have achieved but for
such adoption, effectiveness, change or compliance (taking into consideration
such Lender’s policies with respect to capital adequacy), then, upon notice from
such Lender to the Borrower, the Borrower shall be obligated to pay to such
Lender such additional amount or amounts as will compensate such Lender for
such
reduction. Each determination by any such Lender of amounts owing under this
Section shall, absent manifest error, be conclusive and binding on the parties
hereto.
36
3.7
Limitation
on Eurodollar Loans.
If
on or
prior to the first day of any Interest Period for any Eurodollar
Loan:
(a)
the
Agent
determines (which determination shall be conclusive) that by reason of
circumstances affecting the relevant market, adequate and reasonable means
do
not exist for ascertaining the Eurodollar Rate for such Interest Period;
or
(b)
the
Required Lenders determine (which determination shall be conclusive) and notify
the Agent that the Eurodollar Rate will not adequately and fairly reflect the
cost to the Lenders of funding Eurodollar Loans for such Interest
Period;
then
the
Agent shall give the Borrower prompt notice thereof, and so long as such
condition remains in effect, the Lenders shall be under no obligation to make
additional Eurodollar Loans, Continue Eurodollar Loans, or to Convert Base
Rate
Loans into Eurodollar Loans and the Borrower shall, on the last day(s) of the
then current Interest Period(s) for the outstanding Eurodollar Loans, either
prepay such Eurodollar Loans or Convert such Eurodollar Loans into Base Rate
Loans in accordance with the terms of this Credit Agreement.
3.8
Illegality.
Notwithstanding
any other provision of this Credit Agreement, in the event that it becomes
unlawful for any Lender or its Applicable Lending Office to make, maintain,
or
fund Eurodollar Loans hereunder, then such Lender shall promptly notify the
Borrower thereof and such Lender’s obligation to make or Continue Eurodollar
Loans and to Convert Base Rate Loans into Eurodollar Loans shall be suspended
until such time as such Lender may again make, maintain, and fund Eurodollar
Loans (in which case the provisions of Section 3.10 shall be
applicable).
37
3.9 Requirements
of Law.
(a)
If,
after
the date hereof, the adoption of any applicable law, rule, or regulation, or
any
change in any applicable law, rule, or regulation, or any change in the
interpretation or administration thereof by any Governmental Authority, central
bank, or comparable agency charged with the interpretation or administration
thereof, or compliance by any Lender (or its Applicable Lending Office) with
any
request or directive (whether or not having the force of law) of any such
Governmental Authority, central bank, or comparable agency:
(i)
shall
subject such Lender (or its Applicable Lending Office) to any tax, duty, or
other charge with respect to any Eurodollar Loans, its Notes, or its obligation
to make Eurodollar Loans, or change the basis of taxation of any amounts payable
to such Lender (or its Applicable Lending Office) under this Credit Agreement
or
its Notes in respect of any Eurodollar Loans (other than taxes imposed on the
overall net income of such Lender by the jurisdiction in which such Lender
has
its principal office or such Applicable Lending Office);
(ii)
shall
impose, modify, or deem applicable any reserve, special deposit, assessment,
or
similar requirement (other than the Eurodollar Reserve Requirement utilized
in
the determination of the Adjusted Eurodollar Rate) relating to any extensions
of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (or its Applicable Lending Office), including the
Commitment of such Lender hereunder; or
(iii)
shall
impose on such Lender (or its Applicable Lending Office) or on the United States
market for certificates of deposit or the London interbank market any other
condition affecting this Credit Agreement or its Notes or any of such extensions
of credit or liabilities or commitments;
and
the
result of any of the foregoing is to increase the cost to such Lender (or its
Applicable Lending Office) of making, Converting into, Continuing, or
maintaining any Eurodollar Loans or to reduce any sum received or receivable
by
such Lender (or its Applicable Lending Office) under this Credit Agreement
or
its Notes with respect to any Eurodollar Loans, then the Borrower shall pay
to
such Lender on demand such amount or amounts as will compensate such Lender
for
such increased cost or reduction. If any Lender requests compensation by the
Borrower under this Section 3.9(a), the Borrower may, by notice to such
Lender (with a copy to the Agent), suspend the obligation of such Lender to
make
or Continue Eurodollar Loans, or to Convert Base Rate Loans into Eurodollar
Loans, until the event or condition giving rise to such request ceases to be
in
effect (in which case the provisions of Section 3.10 shall be applicable);
provided
that
such suspension shall not affect the right of such Lender to receive the
compensation so requested.
(b)
If,
after
the date hereof, any Lender shall have determined that the adoption of any
applicable law, rule, or regulation regarding capital adequacy or any change
therein or in the interpretation or administration thereof by any Governmental
Authority, central bank, or comparable agency charged with the interpretation
or
administration thereof, or any request or directive regarding capital adequacy
(whether or not having the force of law) of any such Governmental Authority,
central bank, or comparable agency, has or would have the effect of reducing
the
rate of return on the capital of such Lender or any corporation controlling
such
Lender as a consequence of such Lender’s obligations hereunder to a level below
that which such Lender or such corporation could have achieved but for such
adoption, change, request, or directive (taking into consideration its policies
with respect to capital adequacy), then from time to time upon demand the
Borrower shall pay to such Lender such additional amount or amounts as will
compensate such Lender for such reduction.
38
(c)
Each
Lender shall promptly notify the Borrower and the Agent of any event of which
it
has knowledge, occurring after the date hereof, which will entitle such Lender
to compensation pursuant to this Section 3.9 and will designate a different
Applicable Lending Office if such designation will avoid the need for, or reduce
the amount of, such compensation and will not, in the judgment of such Lender,
be otherwise disadvantageous to it. Any Lender claiming compensation under
Section 3.6 or under this Section 3.9 shall furnish to the Borrower
and the Agent a statement setting forth the additional amount or amounts to
be
paid to it hereunder which shall be conclusive in the absence of manifest error.
In determining such amount, such Lender may use any reasonable averaging and
attribution methods.
3.10
Treatment
of Affected Loans.
If
the
obligation of any Lender to make any Eurodollar Loan or to Continue, or to
Convert Base Rate Loans into, Eurodollar Loans shall be suspended pursuant
to
Section 3.8 or 3.9 hereof, such Lender’s Eurodollar Loans shall be
automatically Converted into Base Rate Loans on the last day(s) of the then
current Interest Period(s) for such Eurodollar Loans (or, in the case of a
Conversion required by Section 3.8 hereof, on such earlier date as such
Lender may specify to the Borrower with a copy to the Agent) and, unless and
until such Lender gives notice as provided below that the circumstances
specified in Section 3.8 or 3.9 hereof that gave rise to such Conversion no
longer exist:
(a)
to
the
extent that such Lender’s Eurodollar Loans have been so Converted, all payments
and prepayments of principal that would otherwise be applied to such Lender’s
Eurodollar Loans shall be applied instead to its Base Rate Loans;
and
(b)
all
Loans
that would otherwise be made or Continued by such Lender as Eurodollar Loans
shall be made or Continued instead as Base Rate Loans, and all Base Rate Loans
of such Lender that would otherwise be Converted into Eurodollar Loans shall
remain as Base Rate Loans.
If
such
Lender gives notice to the Borrower (with a copy to the Agent) that the
circumstances specified in Section 3.8 or 3.9 hereof that gave rise to the
Conversion of such Lender’s Eurodollar Loans pursuant to this Section 3.10
no longer exist (which such Lender agrees to do promptly upon such circumstances
ceasing to exist) at a time when Eurodollar Loans made by other Lenders are
outstanding, such Lender’s Base Rate Loans shall be automatically Converted, on
the first day(s) of the next succeeding Interest Period(s) for such outstanding
Eurodollar Loans, to the extent necessary so that, after giving effect thereto,
all Loans held by the Lenders holding Eurodollar Loans and by such Lender are
held pro rata (as to principal amounts, interest rate basis, and Interest
Periods) in accordance with their respective Commitments.
39
3.11
Taxes.
(a)
Any
and
all payments by the Borrower to or for the account of any Lender or the Agent
hereunder or under any other Credit Document shall be made free and clear of
and
without deduction for any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and all liabilities with respect
thereto, excluding,
in the
case of each Lender and the Agent, taxes imposed on its income, and franchise
taxes imposed on it, by the jurisdiction under the laws of which such Lender
(or
its Applicable Lending Office) or the Agent (as the case may be) is organized
or
any political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as “Taxes”).
If
the Borrower shall be required by law to deduct any Taxes from or in respect
of
any sum payable under this Credit Agreement or any other Credit Document to
any
Lender or the Agent, (i) the sum payable shall be increased as necessary so
that after making all required deductions (including deductions applicable
to
additional sums payable under this Section 3.11) such Lender or the Agent
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant
taxation authority or other authority in accordance with applicable law, and
(iv) the Borrower shall furnish to the Agent, at its address referred to in
Section 11.1, the original or a certified copy of a receipt evidencing
payment thereof.
(b)
In
addition, the Borrower agrees to pay any and all present or future stamp or
documentary taxes and any other excise or property taxes or charges or similar
levies which arise from any payment made under this Credit Agreement or any
other Credit Document or from the execution or delivery of, or otherwise with
respect to, this Credit Agreement or any other Credit Document (hereinafter
referred to as “Other
Taxes”).
(c)
The
Borrower agrees to indemnify each Lender and the Agent for the full amount
of
Taxes and Other Taxes (including, without limitation, any Taxes or Other Taxes
imposed or asserted by any jurisdiction on amounts payable under this
Section 3.11) paid by such Lender or the Agent (as the case may be) and any
liability (including penalties, interest, and expenses) arising therefrom or
with respect thereto.
(d)
Each
Lender organized under the laws of a jurisdiction outside the United States,
on
or prior to the date of its execution and delivery of this Credit Agreement
in
the case of each Lender listed on the signature pages hereof and on or prior
to
the date on which it becomes a Lender in the case of each other Lender, and
from
time to time thereafter if requested in writing by the Borrower or the Agent
(but only so long as such Lender remains lawfully able to do so), shall provide
the Borrower and the Agent with (i) Internal Revenue Service
Form W-8BEN or Form W-8CEI, as appropriate, or any successor form
prescribed by the Internal Revenue Service, certifying that such Lender is
entitled to benefits under an income tax treaty to which the United States
is a
party which reduces the rate of withholding tax on payments of interest or
certifying that the income receivable pursuant to this Credit Agreement is
effectively connected with the conduct of a trade or business in the United
States, (ii) Internal Revenue Service Form W-8 or W-9, as appropriate, or
any successor form prescribed by the Internal Revenue Service, and
(iii) any other form or certificate required by any taxing authority
(including any certificate required by Sections 871(h) and 881(c) of
the Internal Revenue Code), certifying that such Lender is entitled to an
exemption from or a reduced rate of tax on payments pursuant to this Credit
Agreement or any of the other Credit Documents.
40
(e)
For
any
period with respect to which a Lender has failed to provide the Borrower and
the
Agent with the appropriate form pursuant to Section 3.11(d) (unless such
failure is due to a change in treaty, law, or regulation occurring subsequent
to
the date on which a form originally was required to be provided), such Lender
shall not be entitled to indemnification under Section 3.11(a)
or 3.11(b) with respect to Taxes imposed by the United States; provided,
however,
that
should a Lender, which is otherwise exempt from or subject to a reduced rate
of
withholding tax, become subject to Taxes because of its failure to deliver
a
form required hereunder, the Borrower shall take such steps as such Lender
shall
reasonably request to assist such Lender to recover such Taxes.
(f)
If
the
Borrower is required to pay additional amounts to or for the account of any
Lender pursuant to this Section 3.11, then such Lender will agree to use
reasonable efforts to change the jurisdiction of its Applicable Lending Office
so as to eliminate or reduce any such additional payment which may thereafter
accrue if such change, in the judgment of such Lender, is not otherwise
disadvantageous to such Lender.
(g)
Within
thirty (30) days after the date of any payment of Taxes, the Borrower shall
furnish to the Agent the original or a certified copy of a receipt evidencing
such payment.
(h)
Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 3.11 shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments
hereunder.
3.12
Compensation.
Upon
the
request of the Agent, on behalf of a Lender, the Borrower shall pay to such
Lender such amount or amounts as shall be sufficient (in the reasonable opinion
of such Lender) to compensate it for any loss, cost, or expense (including
loss
of anticipated profits) incurred by it as a result of:
(a)
any
payment, prepayment, or Conversion of a Eurodollar Loan for any reason
(including, without limitation, the acceleration of the Loans pursuant to
Section 9.2) on a date other than the last day of the Interest Period for
such Loan; or
41
(b)
any
failure by the Borrower for any reason (including, without limitation, the
failure of any condition precedent specified in Section 5 to be satisfied)
to borrow, Convert, Continue, or prepay a Eurodollar Loan on the date for such
borrowing, Conversion, Continuation, or prepayment specified in the relevant
notice of borrowing, prepayment, Continuation, or Conversion under this Credit
Agreement.
With
respect to Eurodollar Loans, such indemnification may include an amount equal
to
the excess, if any, of (a) the amount of interest which would have accrued
on the amount so prepaid, or not so borrowed, converted or continued, for the
period from the date of such prepayment or of such failure to borrow, convert
or
continue to the last day of the applicable Interest Period (or, in the case of a
failure to borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the applicable rate
of
interest for such Eurodollar Loans provided for herein (excluding, however,
the
Applicable Margin included therein, if any) over (b) the amount of interest
(as reasonably determined by such Lender) which would have accrued to such
Lender on such amount by placing such amount on deposit for a comparable period
with leading banks in the interbank Eurodollar market. The covenants of the
Borrower set forth in this Section 3.12 shall survive the repayment of the
Loans, LOC Obligations and other obligations under the Credit Documents and
the
termination of the Commitments hereunder.
3.13
Pro
Rata Treatment.
Except
to
the extent otherwise provided herein:
(a)
Loans.
Each
Loan, each payment or (subject to the terms of Section 3.3) prepayment of
principal of any Loan or reimbursement obligations arising from drawings under
Letters of Credit, each payment of interest on the Loans or reimbursement
obligations arising from drawings under Letters of Credit, each payment of
Commitment Fees, each payment of the Standby Letter of Credit Fee, each payment
of the Trade Letter of Credit Fee, each reduction of the Revolving Committed
Amount and each conversion or extension of any Loan, shall be allocated pro
rata
among the Lenders in accordance with the respective principal amounts of their
outstanding Loans and Participation Interests.
(b)
Advances.
No
Lender shall be responsible for the failure or delay by any other Lender in
its
obligation to make its ratable share of a borrowing hereunder; provided,
however,
that
the failure of any Lender to fulfill its obligations hereunder shall not relieve
any other Lender of its obligations hereunder. Unless the Agent shall have
been
notified by any Lender in writing not less than the earlier to occur of one
Business Day or twenty-four (24) hours prior to the date of any requested
borrowing that such Lender does not intend to make available to the Agent its
ratable share of such borrowing to be made on such date, the Agent may assume
that such Lender has made such amount available to the Agent on the date of
such
borrowing, and the Agent in reliance upon such assumption, may (in its sole
discretion but without any obligation to do so) make available to the Borrower
a
corresponding amount. If such corresponding amount is not in fact made available
to the Agent, the Agent shall be able to recover such corresponding amount
from
such Lender with interest at a rate per annum equal to the Federal Funds Rate.
If such Lender does not pay such corresponding amount forthwith upon the Agent’s
demand therefor, the Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the Agent. The Agent shall
also be entitled to recover from the Lender or the Borrower, as the case may
be,
interest on such corresponding amount in respect of each day from the date
such
corresponding amount was made available by the Agent to the Borrower to the
date
such corresponding amount is recovered by the Agent at a per annum rate equal
to
(i) from the Borrower at the applicable rate for the applicable borrowing
pursuant to the Notice of Borrowing and (ii) from a Lender at the Federal
Funds Rate.
42
3.14
Sharing
of Payments.
The
Lenders agree among themselves that, in the event that any Lender shall obtain
payment in respect of any Loan, LOC Obligations or any other obligation owing
to
such Lender under this Credit Agreement through the exercise of a right of
setoff, banker’s lien or counterclaim, or pursuant to a secured claim under
Section 506 of Title 11 of the United States Code or other security or
interest arising from, or in lieu of, such secured claim, received by such
Lender under any applicable bankruptcy, insolvency or other similar law or
otherwise, or by any other means, in excess of its pro rata share of such
payment as provided for in this Credit Agreement, such Lender shall promptly
purchase from the other Lenders a Participation Interest in such Loans, LOC
Obligations and other obligations in such amounts, and make such other
adjustments from time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable shares as
provided for in this Credit Agreement. The Lenders further agree among
themselves that if payment to a Lender obtained by such Lender through the
exercise of a right of setoff, banker’s lien, counterclaim or other event as
aforesaid shall be rescinded or must otherwise be restored, each Lender which
shall have shared the benefit of such payment shall, by repurchase of a
Participation Interest theretofore sold, return its share of that benefit
(together with its share of any accrued interest payable with respect thereto)
to each Lender whose payment shall have been rescinded or otherwise restored.
The Borrower agrees that any Lender so purchasing such a Participation Interest
may, to the fullest extent permitted by law, exercise all rights of payment,
including setoff, banker’s lien or counterclaim, with respect to such
Participation Interest as fully as if such Lender were a holder of such Loan,
LOC Obligations or other obligation in the amount of such Participation
Interest. Except as otherwise expressly provided in this Credit Agreement,
if
any Lender or the Agent shall fail to remit to the Agent or any other Lender
an
amount payable by such Lender or the Agent to the Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to the Agent or
such
other Lender at a rate per annum equal to the Federal Funds Rate. If under
any
applicable bankruptcy, insolvency or other similar law, any Lender receives
a
secured claim in lieu of a setoff to which this Section 3.14 applies, such
Lender shall, to the extent practicable, exercise its rights in respect of
such
secured claim in a manner consistent with the rights of the Lenders under this
Section 3.14 to share in the benefits of any recovery on such secured
claim.
43
3.15
Payments,
Computations, Etc.
(a)
Except
as
otherwise specifically provided herein or as set forth in the Services
Agreement, all payments hereunder shall be made to the Agent in dollars in
immediately available funds, without offset, deduction, counterclaim or
withholding of any kind, at the Agent’s office specified in Section 11.1 not
later than 4:00 P.M. (Charlotte, North Carolina time) on the date when due.
Payments received after such time shall be deemed to have been received on
the
next succeeding Business Day. The Agent may (but shall not be obligated to)
debit the amount of any such payment which is not made by such time to any
ordinary deposit account of the Borrower maintained with the Agent (with notice
to the Borrower). The Borrower shall, at the time it makes any payment under
this Credit Agreement, specify to the Agent the Loans, LOC Obligations, Fees,
interest or other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails so to specify, or
if
such application would be inconsistent with the terms hereof, the Agent shall
distribute such payment to the Lenders in such manner as the Agent may determine
to be appropriate in respect of obligations owing by the Borrower hereunder,
subject to the terms of Section 3.13(a)). The Agent will distribute such
payments to such Lenders, if any such payment is received prior to
12:00 Noon (Charlotte, North Carolina time) on a Business Day in like funds
as received prior to the end of such Business Day and otherwise the Agent will
distribute such payment to such Lenders on the next succeeding Business Day.
Whenever any payment hereunder shall be stated to be due on a day which is
not a
Business Day, the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and Fees for the period of such
extension), except that in the case of Eurodollar Loans, if the extension would
cause the payment to be made in the next following calendar month, then such
payment shall instead be made on the next preceding Business Day. Except as
expressly provided otherwise herein, all computations of interest and fees
shall
be made on the basis of actual number of days elapsed over a year of 360 days,
except with respect to computation of interest on Base Rate Loans which (unless
the Base Rate is determined by reference to the Federal Funds Rate) shall be
calculated based on a year of 365 or 366 days, as appropriate. Interest shall
accrue from and include the date of borrowing, but exclude the date of
payment.
(b)
Allocation
of Payments After Event of Default.
Notwithstanding any other provisions of this Credit Agreement to the contrary,
after the occurrence and during the continuance of an Event of Default, all
amounts collected or received by the Agent or any Lender on account of the
Credit Party Obligations or any other amounts outstanding under any of the
Credit Documents or in respect of the Collateral shall be paid over or delivered
as follows:
FIRST,
to
the payment of all reasonable out-of-pocket costs and expenses (including
without limitation reasonable attorneys’ fees) of the Agent in connection with
enforcing the rights of the Lenders under the Credit Documents and any
protective advances made by the Agent with respect to the Collateral under
or
pursuant to the terms of the Collateral Documents;
44
SECOND,
to payment of any fees owed to the Agent;
THIRD,
to
the payment of all reasonable out-of-pocket costs and expenses (including
without limitation, reasonable attorneys’ fees) of each of the Lenders in
connection with enforcing its rights under the Credit Documents or otherwise
with respect to the Credit Party Obligations owing to such Lender;
FOURTH,
to the payment of all of the Credit Party Obligations consisting of accrued
fees
and interest;
FIFTH,
to
the payment of the outstanding principal amount of the Credit Party Obligations
(including the payment or cash collateralization of the outstanding LOC
Obligations);
SIXTH,
to
all other Credit Party Obligations and other obligations which shall have become
due and payable under the Credit Documents or otherwise and not repaid pursuant
to clauses “FIRST” through “FIFTH” above; and
SEVENTH,
to the payment of the surplus, if any, to whoever may be lawfully entitled
to
receive such surplus.
In
carrying out the foregoing, (i) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (ii) each of the Lenders shall receive an amount equal
to its pro rata share (based on the proportion that the then outstanding Loans
and LOC Obligations held by such Lender bears to the aggregate then outstanding
Loans and LOC Obligations) of amounts available to be applied pursuant to
clauses “THIRD”, “FOURTH”, “FIFTH” and “SIXTH” above; and (iii) to the
extent that any amounts available for distribution pursuant to clause “FIFTH”
above are attributable to the issued but undrawn amount of outstanding Letters
of Credit, such amounts shall be held by the Agent in a cash collateral account
and applied (A) first, to reimburse the Issuing Lender from time to time
for any drawings under such Letters of Credit and (B) then, following the
expiration of all Letters of Credit, to all other obligations of the types
described in clauses “FIFTH” and “SIXTH” above in the manner provided in this
Section 3.15(b).
3.16
Evidence
of Debt.
(a)
Each
Lender shall maintain an account or accounts evidencing each Loan made by such
Lender to the Borrower from time to time, including the amounts of principal
and
interest payable and paid to such Lender from time to time under this Credit
Agreement. Each Lender will make reasonable efforts to maintain the accuracy
of
its account or accounts and to promptly update its account or accounts from
time
to time, as necessary.
45
(b)
The
Agent
shall maintain the Register pursuant to Section 11.3(c), and a subaccount
for each Lender, in which Register and subaccounts (taken together) shall be
recorded (i) the amount, type and Interest Period of each such Loan
hereunder, (ii) the amount of any principal or interest due and payable or
to become due and payable to each Lender hereunder and (iii) the amount of
any sum received by the Agent hereunder from or for the account of the Borrower
and each Lender’s share thereof. The Agent will make reasonable efforts to
maintain the accuracy of the subaccounts referred to in the preceding sentence
and to promptly update such subaccounts from time to time, as
necessary.
(c)
The
entries made in the accounts, Register and subaccounts maintained pursuant
to
subsection (b) of this Section 3.16 (and, if consistent with the
entries of the Agent, subsection (a)) shall be prima facie evidence of the
existence and amounts of the obligations of the Borrower therein recorded;
provided,
however,
that
the failure of any Lender or the Agent to maintain any such account, such
Register or such subaccount, as applicable, or any error therein, shall not
in
any manner affect the obligation of the Borrower to repay the Loans made by
such
Lender in accordance with the terms hereof.
3.17
Replacement
Lenders.
If
any
Lender either (i) becomes a Defaulting Lender or (ii) delivers a notice pursuant
to Sections 3.6, 3.9 or 3.11, the Borrower shall have the right, if no
Default or Event of Default then exists, to replace such Lender (the
“Replaced
Lender”)
with
one or more assignees eligible under Section 11.3(b) hereof (collectively,
the “Replacement
Lender”),
provided
that
(A) at the time of any replacement pursuant to this Section, the
Replacement Lender shall enter into one or more assignment agreements
substantially in the form of Exhibit 11.3(b)
pursuant
to, and in accordance with the terms of, Section 11.3(b) pursuant to which
the Replacement Lender shall acquire all of the rights and obligations of the
Replaced Lender hereunder and, in connection therewith, shall pay to
(1) the Replaced Lender in respect thereof of an amount equal to the sum of
(x) the principal of, and all accrued interest on, all outstanding Loans of
the Replaced Lender, (y) all unreimbursed drawings under the Letters of
Credit that have been funded by the Replaced Lender, together with all then
unpaid interest with respect thereto at such time and (z) all accrued but
theretofore unpaid, fees and other amounts owing to the Replaced Lender pursuant
to Section 3.5 and (2) each Issuing Lender an amount equal to such
Replaced Lender’s Revolving Commitment Percentage of any unreimbursed drawings
under Letters of Credit issued by such Issuing Lender to the extent such amount
was not heretofore funded by Replaced Lender, and (B) all obligations of
the Borrower owing to the Replaced Lender (including all obligations, if any,
owing pursuant to Section 3.6, 3.9 or 3.11, but excluding those
obligations specifically described in clause (A) above in respect of which
the assignment purchase price has been, or is concurrently being paid) shall
be
paid in full by the Borrower to such Replaced Lender concurrently with such
replacement.
46
3.18
Non-Receipt
of Funds by the Administrative Agent.
(a) Funding
by Lenders; Presumption by Agent.
Unless
the Agent shall have received written notice from a Lender prior to the proposed
date of any Extension of Credit that such Lender will not make available to
the
Agent such Lender’s share of such Extension of Credit, the Agent may assume that
such Lender has made such share available on such date in accordance with this
Agreement and may, in reliance upon such assumption, make available to the
Borrower a corresponding amount. In such event, if a Lender has not in fact
made
its share of the applicable Extension of Credit available to the Agent, then
the
applicable Lender and the Borrower severally agree to pay to the Agent forthwith
on demand such corresponding amount with interest thereon, for each day from
and
including the date such amount is made available to the Borrower to but
excluding the date of payment to the Agent, at (i) in the case of a payment
to be made by such Lender, the greater of the Federal Funds Rate and a rate
determined by the Agent in accordance with banking industry rules on interbank
compensation and (ii) in the case of a payment to be made by the Borrower,
the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Agent for the same or an overlapping period,
the
Agent shall promptly remit to the Borrower the amount of such interest paid
by
the Borrower for such period. If such Lender pays its share of the applicable
Extension of Credit to the Agent, then the amount so paid shall constitute
such
Lender’s Loan included in such Extension of Credit. Any payment by the Borrower
shall be without prejudice to any claim the Borrower may have against a Lender
that shall have failed to make such payment to the Agent.
(b) Payments
by Borrower; Presumptions by Administrative Agent.
Unless
the Agent shall have received notice from the Borrower prior to the date on
which any payment is due to the Agent for the account of the Lenders or the
Issuing Lender hereunder that the Borrower will not make such payment, the
Administrative Agent may assume that the Borrower has made such payment on
such
date in accordance herewith and may, in reliance upon such assumption,
distribute to the Lenders or the Issuing Lender, as the case may be, the amount
due. In such event, if the Borrower has not in fact made such payment, then
each
of the Lenders or the Issuing Lender, as the case may be, severally agrees
to
repay to the Agent forthwith on demand the amount so distributed to such Lender
or the Issuing Lender, with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Agent, at the greater of the Federal Funds Rate and a rate determined
by
the Agent in accordance with banking industry rules on interbank
compensation.
A
notice
of the Administrative Agent to any Lender or the Borrower with respect to any
amount owing under subsections (a) and (b) of this Section shall be conclusive,
absent manifest error.
(c)
Failure
to Satisfy Conditions Precedent.
If any
Lender makes available to the Agent funds for any Loan to be made by such Lender
as provided in the foregoing provisions of this Section III, and such funds
are
not made available to the Borrower by the Agent because the conditions to the
applicable Extension of Credit set forth in Section V are not satisfied or
waived in accordance with the terms thereof, the Agent shall return such funds
(in like funds as received from such Lender) to such Lender, without
interest.
(d)
Obligations
of Lenders Several.
The
obligations of the Lenders hereunder to make Revolving Loans, to fund
participations in Letters of Credit and to make payments are several and not
joint. The failure of any Lender to make any Loan, to fund any such
participation or to make any such payment on any date required hereunder shall
not relieve any other Lender of its corresponding obligation to do so on such
date, and no Lender shall be responsible for the failure of any other Lender
to
so make its Loan, to purchase its participation or to make its
payment.
47
(e) Funding
Source.
Nothing
herein shall be deemed to obligated any Lender to obtain the funds for any
Loan
in any particular place or manner or to constitute a representation by any
Lender that it has obtained or will obtain the funds for any Loan in any
particular place or manner.
3.19 Inability
to Determine Interest Rate.
Notwithstanding
any other provision of this Agreement, if (a) the Agent shall reasonably
determine (which determination shall be conclusive and binding absent manifest
error) that, by reason of circumstances affecting the relevant market,
reasonable and adequate means do not exist for ascertaining the Eurodollar
Rate
for such Interest Period, or (b) the Required Lenders shall reasonably
determine (which determination shall be conclusive and binding absent manifest
error) that the Eurodollar Rate does not adequately and fairly reflect the
cost
to such Lenders of funding Eurodollar Loans that the Borrower has requested
be
outstanding as a Eurodollar Rate tranche during such Interest Period, the Agent
shall forthwith give telephone notice of such determination, confirmed in
writing, to the Borrower, and the Lenders at least two (2) Business Days prior
to the first day of such Interest Period. Unless the Borrower shall have
notified the Agent upon receipt of such telephone notice that it wishes to
rescind or modify its request regarding such Eurodollar Loans, any Loans that
were requested to be made as Eurodollar Loans shall be made as Base Rate Loans
and any Loans that were requested to be converted into or continued as
Eurodollar Loans shall remain as or be converted into Base Rate Loans. Until
any
such notice has been withdrawn by the Agent, no further Loans shall be made
as,
continued as, or converted into, Eurodollar Loans for the Interest Periods
so
affected.
3.20
Yield
Protection.
(a)
Increased
Costs Generally.
If any
Change in Law shall:
(i)
impose,
modify or deem applicable any reserve, special deposit, compulsory loan,
insurance charge or similar requirement against assets of, deposits with or
for
the account of, or credit extended or participated in by, any Lender (except
any
reserve requirement reflected in the Eurodollar Rate) or the Issuing Lender;
(ii)
subject
any Lender or the Issuing Lender to any tax of any kind whatsoever with respect
to this Agreement, any Letter of Credit, any participation in a Letter of Credit
or any Eurodollar Loan made by it, or change the basis of taxation of payments
to such Lender or the Issuing Lender in respect thereof; or
(iii)
impose
on
any Lender or the Issuing Lender or the London interbank market any other
condition, cost or expense affecting this Agreement or Eurodollar Loans made
by
such Lender or any Letter of Credit or participation therein;
48
and
the
result of any of the foregoing shall be to increase the cost to such Lender
of
making or maintaining any Eurodollar Loan (or of maintaining its obligation
to
make any such Loan), or to increase the cost to such Lender or the Issuing
Lender of participating in, issuing or maintaining any Letter of Credit (or
of
maintaining its obligation to participate in or to issue any Letter of Credit),
or to reduce the amount of any sum received or receivable by such Lender or
the
Issuing Lender hereunder (whether of principal, interest or any other amount)
then, upon request of such Lender or the Issuing Lender, the Borrower will
pay
to such Lender or the Issuing Lender, as the case may be, such additional amount
or amounts as will compensate such Lender or the Issuing Lender, as the case
may
be, for such additional costs incurred or reduction suffered.
(b)
Capital
Requirements.
If any
Lender or the Issuing Lender determines that any Change in Law affecting such
Lender or the Issuing Lender or any lending office of such Lender or such
Lender’s or the Issuing Lender’s holding company, if any, regarding capital
requirements has or would have the effect of reducing the rate of return on
such
Lender’s or the Issuing Lender’s capital or on the capital of such Lender’s or
the Issuing Lender’s holding company, if any, as a consequence of this
Agreement, the Commitments of such Lender or the Loans made by, or
participations in Letters of Credit held by, such Lender, or the Letters of
Credit issued by the Issuing Lender, to a level below that which such Lender
or
the Issuing Lender or such Lender’s or the Issuing Lender’s holding company
could have achieved but for such Change in Law (taking into consideration such
Lender’s or the Issuing Lender’s policies and the policies of such Lender’s or
the Issuing Lender’s holding company with respect to capital adequacy), then
from time to time the Borrower will pay to such Lender or the Issuing Lender,
as
the case may be, such additional amount or amounts as will compensate such
Lender or the Issuing Lender or such Lender’s or the Issuing Lender’s holding
company for any such reduction suffered.
(c) Certificates
for Reimbursement.
A
certificate of a Lender or the Issuing Lender setting forth the amount or
amounts necessary to compensate such Lender or the Issuing Lender or its holding
company, as the case may be, as specified in paragraph (a) or (b) of
this Section and delivered to the Borrower shall be conclusive absent manifest
error. The Borrower shall pay such Lender or the Issuing Lender, as the case
may
be, the amount shown as due on any such certificate within ten (10) days
after receipt thereof.
(d)
Delay
in Requests.
Failure
or delay on the part of any Lender or the Issuing Lender to demand compensation
pursuant to this Section shall not constitute a waiver of such Lender’s or the
Issuing Lender’s right to demand such compensation, provided
that the
Borrower shall not be required to compensate a Lender or the Issuing Lender
pursuant to this Section for any increased costs incurred or reductions suffered
more than nine months prior to the date that such Lender or the Issuing Lender,
as the case may be, notifies the Borrower of the Change in Law giving rise
to
such increased costs or reductions and of such Lender’s or the Issuing Lender’s
intention to claim compensation therefor (except that, if the Change in Law
giving rise to such increased costs or reductions is retroactive, then the
nine-month period referred to above shall be extended to include the period
of
retroactive effect thereof).
49
SECTION
4
GUARANTY
4.1 The
Guaranty.
Each
of
the Guarantors hereby jointly and severally guarantees to each Lender, each
Affiliate of a Lender that enters into a Hedging Agreement, and the Agent as
hereinafter provided the prompt payment of the Credit Party Obligations in
full
when due (whether at stated maturity, as a mandatory prepayment, by
acceleration, as a mandatory cash collateralization or otherwise) strictly
in
accordance with the terms thereof. The Guarantors hereby further agree that
if
any of the Credit Party Obligations are not paid in full when due (whether
at
stated maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash
collateralization or otherwise), the Guarantors will, jointly and severally,
promptly pay the same, without any demand or notice whatsoever, and that in
the
case of any extension of time of payment or renewal of any of the Credit Party
Obligations, the same will be promptly paid in full when due (whether at
extended maturity, as a mandatory prepayment, by acceleration, as a mandatory
cash collateralization or otherwise) in accordance with the terms of such
extension or renewal.
Notwithstanding
any provision to the contrary contained herein or in any other of the Credit
Documents or Hedging Agreements, the obligations of each Guarantor hereunder
shall be limited to an aggregate amount equal to the largest amount that would
not render its obligations hereunder subject to avoidance under Section 548
of the Bankruptcy Code or any comparable provisions of any applicable state
law.
4.2 Obligations
Unconditional.
The
obligations of the Guarantors under Section 4.1 are joint and several,
absolute and unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents or Hedging
Agreements, or any other agreement or instrument referred to therein, or any
substitution, release, impairment or exchange of any other guarantee of or
security for any of the Credit Party Obligations, and, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense
of a
surety or guarantor, it being the intent of this Section 4.2 that the
obligations of the Guarantors hereunder shall be absolute and unconditional
under any and all circumstances. Each Guarantor agrees that such Guarantor
shall
have no right of subrogation, indemnity, reimbursement or contribution against
the Borrower or any other Guarantor of the Credit Party Obligations for amounts
paid under this Section 4 until such time as the Lenders (and any
Affiliates of Lenders entering into Hedging Agreements) have been paid in full,
all Commitments under this Credit Agreement have been terminated and no Person
or Governmental Authority shall have any right to request any return or
reimbursement of funds from the Lenders in connection with monies received
under
the Credit Documents or Hedging Agreements. Without limiting the generality
of
the foregoing, it is agreed that, to the fullest extent permitted by law, the
occurrence of any one or more of the following shall not alter or impair the
liability of any Guarantor hereunder which shall remain absolute and
unconditional as described above:
50
(a)
at
any
time or from time to time, without notice to any Guarantor, the time for any
performance of or compliance with any of the Credit Party Obligations shall
be
extended, or such performance or compliance shall be waived;
(b)
any
of
the acts mentioned in any of the provisions of any of the Credit Documents,
any
Hedging Agreement or any other agreement or instrument referred to in the Credit
Documents or Hedging Agreements shall be done or omitted;
(c)
the
maturity of any of the Credit Party Obligations shall be accelerated, or any
of
the Credit Party Obligations shall be modified, supplemented or amended in
any
respect, or any right under any of the Credit Documents, any Hedging Agreement
or any other agreement or instrument referred to in the Credit Documents or
Hedging Agreements shall be waived or any other guarantee of any of the Credit
Party Obligations or any security therefor shall be released, impaired or
exchanged in whole or in part or otherwise dealt with;
(d)
any
Lien
granted to, or in favor of, the Agent or any Lender or Lenders as security
for
any of the Credit Party Obligations shall fail to attach or be perfected;
or
(e)
any
of
the Credit Party Obligations shall be determined to be void or voidable
(including, without limitation, for the benefit of any creditor of any
Guarantor) or shall be subordinated to the claims of any Person (including,
without limitation, any creditor of any Guarantor).
With
respect to its obligations hereunder, each Guarantor hereby expressly waives
diligence, presentment, demand of payment, protest and all notices whatsoever,
and any requirement that the Agent or any Lender exhaust any right, power or
remedy or proceed against any Person under any of the Credit Documents, any
Hedging Agreement or any other agreement or instrument referred to in the Credit
Documents or Hedging Agreements, or against any other Person under any other
guarantee of, or security for, any of the Credit Party Obligations.
4.3 Reinstatement.
The
obligations of the Guarantors under this Section 4 shall be automatically
reinstated if and to the extent that for any reason any payment by or on behalf
of any Person in respect of the Credit Party Obligations is rescinded or must
be
otherwise restored by any holder of any of the Credit Party Obligations, whether
as a result of any proceedings in bankruptcy or reorganization or otherwise,
and
each Guarantor agrees that it will indemnify the Agent and each Lender on demand
for all reasonable costs and expenses (including, without limitation, fees
and
expenses of counsel) incurred by the Agent or such Lender in connection with
such rescission or restoration, including any such costs and expenses incurred
in defending against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any bankruptcy,
insolvency or similar law.
51
4.4 Certain
Additional Waivers.
Without
limiting the generality of the provisions of this Section 4, each Guarantor
hereby specifically waives the benefits of N.C. Gen. Stat. §§ 26-7 through 26-9,
inclusive, to the extent applicable. Each Guarantor further agrees that such
Guarantor shall have no right of recourse to security for the Credit Party
Obligations, except through the exercise of rights of subrogation pursuant
to
Section 4.2 and through the exercise of rights of contribution pursuant to
Section 4.6.
4.5
Remedies.
The
Guarantors agree that, to the fullest extent permitted by law, as between the
Guarantors, on the one hand, and the Agent and the Lenders, on the other hand,
the Credit Party Obligations may be declared to be forthwith due and payable
as
provided in Section 9.2 (and shall be deemed to have become automatically
due and payable in the circumstances provided in said Section 9.2) for
purposes of Section 4.1 notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing the Credit Party
Obligations from becoming automatically due and payable) as against any other
Person and that, in the event of such declaration (or the Credit Party
Obligations being deemed to have become automatically due and payable), the
Credit Party Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors for purposes of
Section 4.1. The Guarantors acknowledge and agree that their obligations
hereunder are secured in accordance with the terms of the Security Agreements
and the other Collateral Documents and that the Lenders may exercise their
remedies thereunder in accordance with the terms thereof.
52
4.6 Rights
of Contribution.
The
Guarantors hereby agree as among themselves that, if any Guarantor shall make
an
Excess Payment (as defined below), such Guarantor shall have a right of
contribution from each other Guarantor in an amount equal to such other
Guarantor’s Contribution Share (as defined below) of such Excess Payment. The
payment obligations of any Guarantor under this Section 4.6 shall be
subordinate and subject in right of payment to the prior payment in full to
the
Agent and the Lenders of the Guaranteed Obligations, and none of the Guarantors
shall exercise any right or remedy under this Section 4.6 against any other
Guarantor until payment and satisfaction in full of all of such Guaranteed
Obligations. For purposes of this Section 4.6, (a) “Guaranteed
Obligations”
shall
mean any obligations arising under the other provisions of this Section 4;
(b) “Excess
Payment”
shall
mean the amount paid by any Guarantor in excess of its Pro Rata Share of any
Guaranteed Obligations; (c) “Pro
Rata Share”
shall
mean, for any Guarantor in respect of any payment of Guaranteed Obligations,
the
ratio (expressed as a percentage) as of the date of such payment of Guaranteed
Obligations of (i) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable
value of all assets and other properties of the Borrower and all of the
Guarantors exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated liabilities, but excluding
the obligations of the Borrower and the Guarantors hereunder) of the Borrower
and all of the Guarantors; provided,
however,
that,
for purposes of calculating the Pro Rata Shares of the Guarantors in respect
of
any payment of Guaranteed Obligations, any Guarantor that became a Guarantor
subsequent to the date of any such payment shall be deemed to have been a
Guarantor on the date of such payment and the financial information for such
Guarantor as of the date such Guarantor became a Guarantor shall be utilized
for
such Guarantor in connection with such payment; and (d) “Contribution
Share”
shall
mean, for any Guarantor in respect of any Excess Payment made by any other
Guarantor, the ratio (expressed as a percentage) as of the date of such Excess
Payment of (i) the amount by which the aggregate present fair salable value
of all of its assets and properties exceeds the amount of all debts and
liabilities of such Guarantor (including contingent, subordinated, unmatured,
and unliquidated liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair salable
value of all assets and other properties of the Borrower and all of the
Guarantors other than the maker of such Excess Payment exceeds the amount of
all
of the debts and liabilities (including contingent, subordinated, unmatured,
and
unliquidated liabilities, but excluding the obligations of the Borrower and
the
Guarantors hereunder) of the Borrower and all of the Guarantors other than
the
maker of such Excess Payment; provided,
however,
that,
for purposes of calculating the Contribution Shares of the Guarantors in respect
of any Excess Payment, any Guarantor that became a Guarantor subsequent to
the
date of any such Excess Payment shall be deemed to have been a Guarantor on
the
date of such Excess Payment and the financial information for such Guarantor
as
of the date such Guarantor became a Guarantor shall be utilized for such
Guarantor in connection with such Excess Payment. This Section 4.6 shall
not be deemed to affect any right of subrogation, indemnity, reimbursement
or
contribution that any Guarantor may have under applicable law against the
Borrower in respect of any payment of Guaranteed Obligations. Notwithstanding
the foregoing, all rights of contribution against any Guarantor shall terminate
from and after such time, if ever, that such Guarantor shall be relieved of
its
obligations pursuant to Section 8.4.
4.7 Continuing
Guarantee.
The
guarantee in this Section 4 is a continuing guarantee, and shall apply to
all Credit Party Obligations whenever arising.
SECTION
5
CONDITIONS
5.1 Closing
Conditions.
The
obligation of the Lenders to enter into this Credit Agreement and to make the
initial Loans or the Issuing Lender to issue the initial Letter of Credit,
whichever shall occur first, shall be subject to satisfaction of the following
conditions (in form and substance acceptable to the Lenders):
53
(b) Corporate
Documents.
Receipt
by the Agent of the following:
(i)
Charter
Documents.
Copies
of the articles or certificates of incorporation or other charter documents
of
(A)
the
Borrower and each Credit Party party to the Borrower’s existing credit
agreement, dated as of December 3, 2002, by and among the Borrower, the
subsidiaries of the Borrower from time to time party thereto and Wachovia,
certified by a secretary or assistant secretary of such Credit Party to be
true
and correct as of the Closing Date, and (B)
each
other Credit Party certified to be true and complete as of a recent date by
the
appropriate Governmental Authority of the state or other jurisdiction of its
incorporation and certified by a secretary or assistant secretary of such Credit
Party to be true and correct as of the Closing Date.
(ii)
Bylaws.
A copy
of the bylaws of each Credit Party certified by a secretary or assistant
secretary of such Credit Party to be true and correct as of the Closing
Date.
(iii)
Resolutions.
Copies
of resolutions of the Board of Directors of each Credit Party approving and
adopting the Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery thereof, certified
by a secretary or assistant secretary of such Credit Party to be true and
correct and in force and effect as of the Closing Date.
(iv)
Good
Standing.
Copies
of (A) certificates of good standing, existence or its equivalent with
respect to each Credit Party certified as of a recent date by the appropriate
Governmental Authorities of the state or other jurisdiction of incorporation
and
each other jurisdiction in which the failure to so qualify and be in good
standing could have a Material Adverse Effect and (B) to the extent
available, a certificate indicating payment of all corporate franchise taxes
certified as of a recent date by the appropriate governmental taxing
authorities.
(v)
Incumbency.
An
incumbency certificate of each Credit Party certified by a secretary or
assistant secretary to be true and correct as of the Closing Date.
(c) [Reserved].
(d)
Opinions
of Counsel. The
Agent
shall have received favorable opinions dated as of the Closing Date of counsel
to the Credit Parties addressed to the lenders with respect to the Credit
Parties, the Credit Documents and such other matters as the lenders shall
request.
54
(e) Personal
Property Collateral.
The
Agent shall have received:
(i)
searches
of Uniform Commercial Code filings in the jurisdiction of the organization
of
each Credit Party and each jurisdiction where a filing would need to be made
in
order to perfect the Agent’s security interest in the Collateral, copies of the
financing statements on file in such jurisdictions and evidence that no Liens
exist other than Permitted Liens;
(ii)
UCC
financing statements for each appropriate jurisdiction as is necessary, in
the
Agent’s sole discretion, to perfect the Agent’s security interest in the
Collateral;
(iii)
searches
of ownership of intellectual property in the appropriate governmental offices
and such patent/trademark/copyright filings as requested by the Agent in order
to perfect the Agent’s security interest in the Collateral;
(iv)
all
stock
certificates evidencing the Capital Stock pledged to the Agent pursuant to
the
Pledge Agreement, together with duly executed in blank undated stock powers
attached thereto (unless, with respect to the pledged Capital Stock of any
Foreign Subsidiary, such stock powers are deemed unnecessary by the Agent in
its
reasonable discretion under the law of the jurisdiction of incorporation of
such
Person);
(v)
such
patent/trademark/copyright filings as requested by the Agent in order to perfect
the Agent’s security interest in the Collateral;
(vi)
all
instruments and chattel paper in the possession of any of the Credit Parties,
together with allonges or assignments as may be necessary or appropriate to
perfect the Agent’s security interest in the Collateral; and
(vii)
duly
executed consents (including landlord waivers) as are requested by the
Administrative Agent and to the extent the Borrower is able to secure such
letters, consents and waivers after using commercially reasonable efforts (such
letters, consents and waivers shall be in form and substance satisfactory to
the
Administrative Agent).
(f)
Priority
of Liens.
The
Agent shall have received satisfactory evidence that (i) the Agent, on behalf
of
the Lenders, holds a perfected, first priority Lien on all Collateral and (ii)
none of the Collateral is subject to any other Liens other than Permitted
Liens.
55
(g)
Evidence
of Insurance.
Receipt
by the Agent of copies of insurance policies or certificates of insurance of
the
Consolidated Parties evidencing worker’s compensation insurance, liability
insurance, casualty insurance and business interruption insurance meeting the
requirements set forth in the Credit Documents, including, but not limited
to,
naming the Agent as sole loss payee on behalf of the Lenders.
(h) Corporate
Structure.
The
corporate capital and ownership structure of the Consolidated Parties shall
be
as described in Schedule 5.1(h).
(i)
Government
Consent.
Receipt
by the Agent of evidence that all governmental, shareholder and material third
party consents shall have been obtained and the expiration of all applicable
waiting periods shall have occurred without any action being taken by any
authority that could restrain, prevent or impose any material adverse conditions
on the transactions contemplated hereby and no action seeking or threatening
any
of the foregoing shall have occurred, and no law or regulation shall be
applicable which in the judgment of the Agent could have the effect of the
foregoing.
(j)
Material
Adverse Effect.
No
material adverse change shall have occurred since the last day of the fiscal
year ending 2006 in the condition (financial or otherwise), business, management
or prospects of the Consolidated Parties taken as a whole.
(k)
Litigation.
There
shall not exist any pending or threatened action, suit, investigation or
proceeding against a Consolidated Party that could have a Consolidated Material
Adverse Effect.
(l)
Other
Indebtedness.
Receipt
by the Agent of evidence that the Consolidated Parties shall have no Funded
Indebtedness other than the Indebtedness under the Credit
Documents.
(m) Officer’s
Certificates.
The
Agent shall have received a certificate or certificates executed by a
Responsible Officer of the Borrower as of the Closing Date stating that
(i) all governmental, shareholder and material third party consents and
approvals, if any, with respect to the Credit Documents and the transactions
contemplated thereby have been obtained, (ii) each Consolidated Party is in
compliance with all existing financial obligations, (iii) no action, suit,
investigation or proceeding is pending or threatened in any court or before
any
arbitrator or governmental instrumentality that purports to affect any
Consolidated Party or any transaction contemplated by the Credit Documents,
if
such action, suit, investigation or proceeding could have a Material Adverse
Effect, and (iv) immediately after giving effect to this Credit Agreement,
the other Credit Documents and all the transactions contemplated therein to
occur on such date, (A) each of the Credit Parties is Solvent, (B) no
Default or Event of Default exists, (C) all representations and warranties
contained herein and in the other Credit Documents are true and correct in
all
material respects, and (D) the Credit Parties are in compliance with each
of the financial covenants set forth in Section 7.11.
56
(n)
Patriot
Act Certificate.
At
least five (5) Business Days prior to the Closing Date, the
Agent
shall have received a certificate satisfactory thereto, for benefit of itself
and the Lenders, provided by the Borrower that sets forth information required
by the Patriot Act including, without limitation, the identity of the Credit
Parties, the name and address of the Credit Parties and other information that
will allow the Administrative Agent or any Lender, as applicable, to identify
the Credit Parties in accordance with the Patriot Act.
(o) Fees
and Expenses.
Payment
by the Credit Parties of all fees and expenses owed by them to the Lenders
and
the Agent.
(p)
Other.
Receipt
by the Lenders of such other documents, instruments, agreements or information
as reasonably requested by any Lender, including, but not limited to,
information regarding litigation, tax, accounting, labor, insurance, pension
liabilities (actual or contingent), real estate leases, material contracts,
debt
agreements, property ownership and contingent liabilities of the Consolidated
Parties.
5.2 Conditions
to all Extensions of Credit.
The
obligations of each Lender to make, convert or extend any Loan and of the
Issuing Lender to issue or extend any Letter of Credit (including the initial
Loans and the initial Letter of Credit) are subject to satisfaction of the
following conditions in addition to satisfaction on the Closing Date of the
conditions set forth in Section 5.1:
(a)
The
Borrower shall have delivered (i) in the case of any Revolving Loan, an
appropriate Notice of Borrowing or Notice of Extension/Conversion or
(ii) in the case of any Letter of Credit, the Issuing Lender shall have
received an appropriate request for issuance in accordance with the provisions
of Section 2.3(b);
(b)
The
representations and warranties set forth in Section 6 shall, subject to the
limitations set forth therein, be true and correct in all material respects
as
of such date (except for those which expressly relate to an earlier
date);
(c)
No
Default or Event of Default shall exist and be continuing either prior to or
after giving effect thereto;
(d)
Immediately
after giving effect to the making of such Loan (and the application of the
proceeds thereof) or to the issuance of such Letter of Credit, as the case
may
be, (i)
the sum
of the aggregate principal amount of outstanding Revolving Loans plus
LOC
Obligations outstanding shall not exceed the Revolving Committed Amount,
(ii)
the sum
of the aggregate principal amount of outstanding Sweep Plus Revolving Loans
shall not exceed the Sweep Plus Revolving Committed Amount, and (iii)
the sum
of the aggregate principal amount of outstanding Non-Sweep Revolving Loans
shall
not exceed the Non-Sweep Revolving Committed Amount.
The
delivery of each Notice of Borrowing, each Notice of Extension/Conversion and
each request for a Letter of Credit pursuant to Section 2.3(b) shall
constitute a representation and warranty by the Borrower of the correctness
of
the matters specified in subsections (b), (c), and (d),
above.
57
SECTION
6
REPRESENTATIONS
AND WARRANTIES
The
Credit Parties hereby represent to the Agent and each Lender that:
6.1 Financial
Condition.
(a)
The
audited consolidated balance sheet of the Consolidated Parties as of
March 26, 2006 and the audited consolidated statements of earnings and
statements of cash flows for the years ended March 26, 2006, March 27,
2005, and March 28, 2004 and for the ten 4-week periods ended December 31,
2006 have heretofore been furnished to each Lender. Such financial statements
(including the notes thereto) (i) have been audited by Deloitte &
Touche LLP (except for the ten 4-week periods ended December 31, 2006 which
have
not been audited), (ii) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and
(iii) present fairly (on the basis disclosed in the footnotes to such
financial statements) the consolidated financial condition, results of
operations and cash flows of the Consolidated Parties as of such date and for
such periods. The unaudited interim balance sheets of the Consolidated Parties
as at the end of, and the related unaudited interim statements of earnings
for,
each fiscal period ended after December 31, 2006 and prior to the Closing Date
have heretofore been furnished to each Lender. Such interim financial statements
for each such fiscal period, (i) have been prepared in accordance with GAAP
consistently applied throughout the periods covered thereby and
(ii) present the consolidated financial condition and results of operations
of the Consolidated Parties as of such date and for such periods. During the
period from December 31, 2006 to and including the Closing Date, there has
been
no sale, transfer or other disposition by any Consolidated Party of any material
part of the business or property of the Consolidated Parties, taken as a whole,
and no purchase or other acquisition by any of them of any business or property
(including any capital stock of any other person) material in relation to the
consolidated financial condition of the Consolidated Parties, taken as a whole,
in each case, which, is not reflected in the foregoing financial statements
or
in the notes thereto and has not otherwise been disclosed in writing to the
Lenders on or prior to the Closing Date.
(b)
The
financial statements delivered to the Lenders pursuant to Section 7.1(a)
and (b), (i) have been prepared in accordance with GAAP (except as may
otherwise be permitted under Section 7.1(a) and (b)) and (ii) present
fairly (on the basis disclosed in the footnotes to such financial statements)
the consolidated financial condition, results of operations and cash flows
of
the Consolidated Parties as of such date and for such periods.
58
6.2 No
Material Change.
Since
the
last day of fiscal year 2006, (a) there has been no development or event
relating to or affecting a Consolidated Party which has had or could have a
Material Adverse Effect and (b) except as otherwise permitted under this
Credit Agreement, no dividends or other distributions have been declared, paid
or made upon the Capital Stock in a Consolidated Party nor has any of the
Capital Stock in a Consolidated Party been redeemed, retired, purchased or
otherwise acquired for value.
6.3 Organization
and Good Standing.
Each
of
the Consolidated Parties (a) is duly organized, validly existing and is in
good standing under the laws of the jurisdiction of its incorporation or
organization, (b) has the corporate or other necessary power and authority,
and the legal right, to own and operate its property, to lease the property
it
operates as lessee and to conduct the business in which it is currently engaged
and (c) is duly qualified as a foreign entity and in good standing under
the laws of each jurisdiction where its ownership, lease or operation of
property or the conduct of its business requires such qualification, other
than
in such jurisdictions where the failure to be so qualified and in good standing
could have a Consolidated Material Adverse Effect.
6.4 Power;
Authorization; Enforceable Obligations.
Each
of
the Credit Parties has the corporate or other necessary power and authority,
and
the legal right, to make, deliver and perform the Credit Documents to which
it
is a party, and in the case of the Borrower, to obtain extensions of credit
hereunder, and has taken all necessary corporate action to authorize the
borrowings and other extensions of credit on the terms and conditions of this
Credit Agreement and to authorize the execution, delivery and performance of
the
Credit Documents to which it is a party. No consent or authorization of, filing
with, notice to or other similar act by or in respect of, any Governmental
Authority or any other Person is required to be obtained or made by or on behalf
of any Credit Party in connection with the borrowings or other extensions of
credit hereunder or with the execution, delivery, performance, validity or
enforceability of the Credit Documents to which such Credit Party is a party,
except for (a) consents, authorizations, notices and filings described in
Schedule 6.4,
all of
which have been obtained or made or have the status described in such
Schedule 6.4
and
(b) filings to perfect the Liens created by the Collateral Documents. This
Credit Agreement has been, and each other Credit Document to which any Credit
Party is a party will be, duly executed and delivered on behalf of the Credit
Parties. This Credit Agreement constitutes, and each other Credit Document
to
which any Credit Party is a party when executed and delivered will constitute,
a
legal, valid and binding obligation of such Credit Party enforceable against
such party in accordance with its terms, except as enforceability may be limited
by applicable bankruptcy, insolvency, reorganization, moratorium or similar
laws
affecting the enforcement of creditors’ rights generally and by general
equitable principles (whether enforcement is sought by proceedings in equity
or
at law).
59
6.5 No
Conflicts.
Neither
the execution and delivery of the Credit Documents, nor the consummation of
the
transactions contemplated therein, nor performance of and compliance with the
terms and provisions thereof by such Credit Party will (a) violate or
conflict with any provision of its articles or certificate of incorporation
or
bylaws or other organizational or governing documents of such Person,
(b) violate, contravene or materially conflict with any Requirement of Law
or any other law, regulation (including, without limitation, Regulation U or
Regulation X), order, writ, judgment, injunction, decree or permit applicable
to
it, (c) violate, contravene or conflict with contractual provisions of, or
cause an event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party
or by
which it may be bound, the violation of which could have a Material Adverse
Effect, or (d) result in or require the creation of any Lien (other than
those contemplated in or created in connection with the Credit Documents) upon
or with respect to its properties.
6.6 No
Default.
No
Consolidated Party is in default in any respect under any contract, lease,
loan
agreement, indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its properties is bound
which default could have a Consolidated Material Adverse Effect. No Default
or
Event of Default has occurred or exists except as previously disclosed in
writing to the Lenders.
6.7 Ownership.
Each
Consolidated Party is the owner of, and has good and marketable title to, all
of
its respective assets and none of such assets are subject to any Lien other
than
Permitted Liens.
6.8 Indebtedness.
Except
as
otherwise permitted under Section 8.1, the Consolidated Parties have no
Indebtedness.
6.9 Litigation.
Except
as
set forth on Schedule
6.9,
there
are no material actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against any Consolidated Party. There are no actions, suits or legal,
equitable, arbitration or administrative proceedings, pending or, to the
knowledge of any Credit Party, threatened against any Consolidated Party which
could reasonably be expected to have a Consolidated Material Adverse Effect.
60
6.10 Taxes.
Each
Consolidated Party has filed, or caused to be filed, all tax returns (federal,
state, local and foreign) required to be filed and paid (a) all amounts of
taxes shown thereon to be due (including interest and penalties) and
(b) all other taxes, fees, assessments and other governmental charges
(including mortgage recording taxes, documentary stamp taxes and intangibles
taxes) owing by it, except for such taxes (i) which are not yet delinquent
or (ii) that are being contested in good faith and by proper proceedings,
and against which adequate reserves are being maintained in accordance with
GAAP. No Credit Party is aware as of the Closing Date of any proposed tax
assessments against it or any other Consolidated Party.
6.11 Compliance
with Law.
Each
Consolidated Party is in compliance with all Requirements of Law and all other
laws, rules, regulations, orders and decrees (including without limitation
Environmental Laws) applicable to it, or to its properties, unless such failure
to comply could not have a Consolidated Material Adverse Effect. No Requirement
of Law could cause a Consolidated Material Adverse Effect.
6.12
ERISA.
(a)
During
the five-year period prior to the date on which this representation is made
or
deemed made: (i) no ERISA Event has occurred, and, to the best knowledge of
the Credit Parties, no event or condition has occurred or exists as a result
of
which any ERISA Event could reasonably be expected to occur, with respect to
any
Plan; (ii) no “accumulated funding deficiency,” as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not waived, has
occurred with respect to any Plan; (iii) each Plan has been maintained,
operated, and funded in compliance with its own terms and in material compliance
with the provisions of ERISA, the Code, and any other applicable federal or
state laws; and (iv) no lien in favor of the PBGC or a Plan has arisen or
is reasonably likely to arise on account of any Plan.
(b)
The
actuarial present value of all “benefit liabilities” (as defined in
Section 4001(a)(16) of ERISA), whether or not vested, under each Single
Employer Plan, as of the last annual valuation date prior to the date on which
this representation is made or deemed made (determined, in each case, utilizing
the actuarial assumptions used in such Plan’s most recent actuarial valuation
report), did not exceed as of such valuation date the fair market value of
the
assets of such Plan.
(c)
Neither
any Consolidated Party nor any ERISA Affiliate has incurred, or, to the best
knowledge of the Credit Parties, could be reasonably expected to incur, any
withdrawal liability under ERISA to any Multiemployer Plan or Multiple Employer
Plan. Neither any Consolidated Party nor any ERISA Affiliate would become
subject to any withdrawal liability under ERISA if any Consolidated Party or
any
ERISA Affiliate were to withdraw completely from all Multiemployer Plans and
Multiple Employer Plans as of the valuation date most closely preceding the
date
on which this representation is made or deemed made. Neither any Consolidated
Party nor any ERISA Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning of Section 4241
of ERISA), is insolvent (within the meaning of Section 4245 of ERISA), or
has been terminated (within the meaning of Title IV of ERISA), and no
Multiemployer Plan is, to the best knowledge of the Credit Parties, reasonably
expected to be in reorganization, insolvent, or terminated.
61
(d)
No
prohibited transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility has occurred
with respect to a Plan which has subjected or may subject any Consolidated
Party
or any ERISA Affiliate to any liability under Sections 406, 409, 502(i), or
502(l) of ERISA or Section 4975 of the Code, or under any agreement or
other instrument pursuant to which any Consolidated Party or any ERISA Affiliate
has agreed or is required to indemnify any person against any such liability.
(e)
Neither
any Consolidated Party nor any ERISA Affiliates has any material liability
with
respect to “expected post-retirement benefit obligations” within the meaning of
the Financial Accounting Standards Board Statement 106.
6.13 Subsidiaries.
Set
forth
on Schedule 6.13
is a
complete and accurate list of all Subsidiaries of each Consolidated Party.
Information on Schedule 6.13
includes
jurisdiction of incorporation, the number of shares of each class of Capital
Stock outstanding, the number and percentage of outstanding shares of each
class
owned (directly or indirectly) by such Consolidated Party; and the number and
effect, if exercised, of all outstanding options, warrants, rights of conversion
or purchase and all other similar rights with respect thereto. The outstanding
Capital Stock of all such Subsidiaries is validly issued, fully paid and
non-assessable and is owned by each such Consolidated Party, directly or
indirectly, free and clear of all Liens (other than those arising under or
contemplated in connection with the Credit Documents). Other than as set forth
in Schedule 6.13,
no
Consolidated Party has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding
any
rights to subscribe for or to purchase or any options for the purchase of,
or
any agreements providing for the issuance (contingent or otherwise) of, or
any
calls, commitments or claims of any character relating to its Capital Stock.
Schedule 6.13
may be
updated from time to time by the Borrower by giving written notice thereof
to
the Agent.
6.14 Governmental
Regulations, Etc.
(a)
No
part
of the Letters of Credit or proceeds of the Loans will be used, directly or
indirectly, for the purpose of purchasing or carrying any “margin stock” within
the meaning of Regulation U, or for the purpose of purchasing or carrying or
trading in any securities. If requested by any Lender or the Agent, the Borrower
will furnish to the Agent and each Lender a statement to the foregoing effect
in
conformity with the requirements of FR Form U-1 referred to in Regulation U.
No
indebtedness being reduced or retired out of the proceeds of the Loans was
or
will be incurred for the purpose of purchasing or carrying any margin stock
within the meaning of Regulation U or any “margin security” within the meaning
of Regulation T. “Margin stock” within the meaning of Regulation U does not
constitute more than 25% of the value of the consolidated assets of the
Consolidated Parties. None of the transactions contemplated by this Credit
Agreement (including, without limitation, the direct or indirect use of the
proceeds of the Loans) will violate or result in a violation of the Securities
Act of 1933, as amended, or the Securities Exchange Act of 1934, as
amended, or regulations issued pursuant thereto, or Regulation T, U or X.
62
(b)
No
Consolidated Party is subject to regulation under the Federal Power Act or
the
Investment Company Act of 1940, each as amended. In addition, no
Consolidated Party is an “investment company” registered or required to be
registered under the Investment Company Act of 1940, as amended, and is not
controlled by such a company.
(c)
No
director, executive officer or principal shareholder of any Consolidated Party
is a director, executive officer or principal shareholder of any Lender. For
the
purposes hereof the terms “director”, “executive officer” and “principal
shareholder” (when used with reference to any Lender) have the respective
meanings assigned thereto in Regulation O issued by the Board of Governors
of
the Federal Reserve System.
(d)
Each
Consolidated Party has obtained and holds in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the ownership of its respective Property
and
to the conduct of its respective businesses as presently conducted.
(e)
No
Consolidated Party is in violation of any applicable statute, regulation or
ordinance of the United States of America, or of any state, city, town,
municipality, county or any other jurisdiction, or of any agency thereof
(including without limitation, environmental laws and regulations), which
violation could have a Consolidated Material Adverse Effect.
(f)
Each
Consolidated Party is current with all material reports and documents, if any,
required to be filed with any state or federal securities commission or similar
agency and is in full compliance in all material respects with all applicable
rules and regulations of such commissions.
6.15 Purpose
of Loans and Letters of Credit.
The
proceeds of the Loans hereunder shall be used solely by the Borrower to
(a) refinance existing Indebtedness and (b) provide for working
capital, capital expenditures and other general corporate purposes. The Letters
of Credit shall be used only for or in connection with appeal bonds,
reimbursement obligations arising in connection with surety and reclamation
bonds, reinsurance, domestic or international trade transactions and obligations
not otherwise aforementioned relating to transactions entered into by the
applicable account party in the ordinary course of business.
63
6.16
Environmental
Matters.
(a)
Each
of
the facilities and properties owned, leased or operated by the Consolidated
Parties (the “Properties”)
and
all operations at the Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any Environmental Law with
respect to the Properties or the businesses operated by the Consolidated Parties
(the “Businesses”),
and
there are no conditions relating to the Businesses or Properties that could
give
rise to liability under any applicable Environmental Laws.
(b)
None
of
the Properties contains, or has previously contained, any Materials of
Environmental Concern at, on or under the Properties in amounts or
concentrations that constitute or constituted a violation of, or could give
rise
to liability under, Environmental Laws.
(c)
No
Consolidated Party has received any written or verbal notice of, or inquiry
from
any Governmental Authority regarding, any violation, alleged violation,
non-compliance, liability or potential liability regarding environmental matters
or compliance with Environmental Laws with regard to any of the Properties
or
the Businesses, nor does any Consolidated Party have knowledge or reason to
believe that any such notice will be received or is being
threatened.
(d)
Materials
of Environmental Concern have not been transported or disposed of from the
Properties, or generated, treated, stored or disposed of at, on or under any
of
the Properties or any other location, in each case by or on behalf of any
Consolidated Party in violation of, or in a manner that could give rise to
liability under, any applicable Environmental Law.
(e) No
judicial proceeding or governmental or administrative action is pending or,
to
the best knowledge of any Credit Party, threatened, under any Environmental
Law
to which any Consolidated Party is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders, administrative orders
or
other orders, or other administrative or judicial requirements outstanding
under
any Environmental Law with respect to the Consolidated Parties, the Properties
or the Businesses.
(f)
There
has
been no release or, threat of release of Materials of Environmental Concern
at
or from the Properties, or arising from or related to the operations (including,
without limitation, disposal) of any Consolidated Party in connection with
the
Properties or otherwise in connection with the Businesses, in violation of
or in
amounts or in a manner that could give rise to liability under Environmental
Laws.
64
6.17
Intellectual
Property.
Each
Consolidated Party owns, or has the legal right to use, all trademarks,
tradenames, copyrights, technology, know-how and processes (the “Intellectual
Property”)
necessary for each of them to conduct its business as currently conducted except
for those the failure to own or have such legal right to use could not have
a
Consolidated Material Adverse Effect. Set forth on Schedule 6.17
is a
list of all Intellectual Property owned by each Consolidated Party or that
any
Consolidated Party has the right to use. Except as provided on Schedule 6.17,
no
claim has been asserted and is pending by any Person challenging or questioning
the use of any such Intellectual Property or the validity or effectiveness
of
any such Intellectual Property, nor does any Credit Party know of any such
claim, and to the Credit Parties’ knowledge the use of such Intellectual
Property by any Consolidated Party does not infringe on the rights of any
Person, except for such claims and infringements that in the aggregate, could
not have a Consolidated Material Adverse Effect. Schedule
6.17
may be
updated from time to time by the Borrower by giving written notice thereof
to
the Agent.
6.18 Solvency.
Each
Credit Party is and, after consummation of the transactions contemplated by
this
Credit Agreement will be Solvent.
6.19
Investments.
All
Investments of each Consolidated Party are Permitted Investments.
6.20 Location
of Collateral.
Set
forth
on Schedule 6.20(a)
is a
list of all locations where any tangible personal property of a Consolidated
Party is located, including state where located. Set forth on Schedule 6.20(b)
is the
chief executive office. Schedule 6.20(a)
and
6.20(b)
may be
updated from time to time by the Borrower giving written notice thereof to
the
Agent.
6.21 Disclosure.
Neither
this Credit Agreement nor any financial statements delivered to the Lenders
nor
any other document, certificate or statement furnished to the Lenders by or
on
behalf of any Consolidated Party in connection with the transactions
contemplated hereby contains any untrue statement of a material fact or omits
to
state a material fact necessary in order to make the statements contained
therein or herein not misleading.
6.22 No
Burdensome Restrictions.
No
Consolidated Party is a party to any agreement or instrument or subject to
any
other obligation or any charter or corporate restriction or any provision of
any
applicable law, rule or regulation which, individually or in the aggregate,
could have a Consolidated Material Adverse Effect.
65
6.23 Brokers’
Fees.
No
Consolidated Party has any obligation to any Person in respect of any finder’s,
broker’s, investment banking or other similar fee in connection with any of the
transactions contemplated under the Credit Documents.
6.24 Labor
Matters.
There
are
no collective bargaining agreements or Multiemployer Plans covering the
employees of a Consolidated Party as of the Closing Date and none of the
Consolidated Parties has suffered any strikes, walkouts, work stoppages or
other
material labor difficulty within the last five years.
6.25 Anti-Terrorism
Laws.
Neither
any Credit Party nor any of its Subsidiaries is an “enemy” or an “ally of the
enemy” within the meaning of Section 2 of the Trading with the Enemy Act of the
United States of America (50 U.S.C. App. §§ 1 et
seq.),
as
amended. Neither any Credit Party nor any or its Subsidiaries is in violation
of
(a) the Trading with the Enemy Act, as amended, (b) any of the foreign assets
control regulations of the United States Treasury Department (31 CFR, Subtitle
B, Chapter V, as amended) or any enabling legislation or executive order
relating thereto or (c) the Patriot Act. None of the Credit Parties (i) is
a
blocked person described in Section 1 of the Anti-Terrorism Order or (ii) to
the
best of its knowledge, engages in any dealings or transactions, or is otherwise
associated, with any such blocked person.
6.26 Compliance
with OFAC Rules and Regulations.
None
of
the Credit Parties or their Subsidiaries or their respective Affiliates
(a) is a Sanctioned Person, (b) has more than 15% of its assets in
Sanctioned Countries, or (c) derives more than 15% of its operating income
from investments in, or transactions with Sanctioned Persons or Sanctioned
Countries. No part of the proceeds of any Extension of Credit hereunder will
be
used directly or indirectly to fund any operations in, finance any investments
or activities in or make any payments to, a Sanctioned Person or a Sanctioned
Country.
6.27 Compliance
with FCPA.
Each
of
the Credit Parties and their Subsidiaries is in compliance with the Foreign
Corrupt Practices Act, 15 U.S.C. §§ 78dd-1, et
seq.,
and any
foreign counterpart thereto. None of the Credit Parties or their Subsidiaries
has made a payment, offering, or promise to pay, or authorized the payment
of,
money or anything of value (a) in order to assist in obtaining or retaining
business for or with, or directing business to, any foreign official, foreign
political party, party official or candidate for foreign political office,
(b) to a foreign official, foreign political party or party official or any
candidate for foreign political office, and (c) with the intent to induce
the recipient to misuse his or her official position to direct business
wrongfully to such Credit Party or its Subsidiary or to any other Person, in
violation of the Foreign Corrupt Practices Act, 15 U.S.C. §§ 78dd-1,
et
seq.
66
SECTION
7
AFFIRMATIVE
COVENANTS
Each
Credit Party hereby covenants and agrees that so long as this Credit Agreement
is in effect or any amounts payable hereunder or under any other Credit Document
shall remain outstanding, and until all of the Commitments hereunder shall
have
terminated:
7.1
Information
Covenants.
The
Borrower will furnish, or cause to be furnished, to the Agent and each of the
Lenders:
(c)
[Reserved].
67
(d)
Officer’s
Certificate.
At the
time of delivery of the financial statements provided for in
Sections 7.1(a) and 7.1(b) above, a certificate of a Responsible Officer
substantially in the form of Exhibit 7.1(d),
(i) demonstrating compliance with the financial covenants contained in
Section 7.11 by calculation thereof as of the end of each such fiscal
period and (ii) stating that no Default or Event of Default exists, or if
any Default or Event of Default does exist, specifying the nature and extent
thereof and what action the Credit Parties propose to take with respect
thereto.
(e)
Annual
Business Plan and Budgets.
Within
thirty (30) days after the end of each fiscal year of the Borrower,
beginning with the fiscal year ending 2007, an annual business plan and budget
of the Consolidated Parties containing, among other things, projected financial
statements for the next fiscal year.
(f)
Compliance
With Certain Provisions of the Credit Agreement.
Within
ninety (90) days after the end of each fiscal year of the Borrower, a
certificate containing information regarding the amount of all Asset
Dispositions that were made during the prior fiscal year.
(g)
[Reserved].
(h)
Auditor’s
Reports.
Promptly upon receipt thereof, a copy of any other report or “management letter”
submitted by independent accountants to any Consolidated Party in connection
with any annual, interim or special audit of the books of such
Person.
(i)
Reports.
Promptly upon transmission or receipt thereof, (i) copies of any filings
and registrations with, and reports to or from, the SEC, or any successor
agency, and copies of all financial statements, proxy statements, notices and
reports as any Consolidated Party shall send to its shareholders or to a holder
of any Indebtedness owed by any Consolidated Party in its capacity as such
a
holder and (ii) upon the request of the Agent, all reports and written
information to and from the United States Environmental Protection Agency,
or
any state or local agency responsible for environmental matters, the United
States Occupational Health and Safety Administration, or any state or local
agency responsible for health and safety matters, or any successor agencies
or
authorities concerning environmental, health or safety matters. Documents
required to be delivered pursuant to this clause (to the extent any such
documents are included in materials otherwise filed with the SEC) may be
delivered electronically and if so delivered, shall be deemed to have been
delivered on the date (i) on which the Borrower posts such documents, or
provides a link thereto on the Borrower’s website on the Internet; or (ii) on
which such documents are posted on the Borrower’s behalf on an Internet or
intranet website, if any, to which each Lender and the Agent have access
(whether a commercial, third party website or sponsored by the Agent); provided
that the Borrower shall notify the Administrative Agent (by telecopier or
electronic mail) of the posting of any such documents and, upon the
Administrative Agent’s request, provide to the Agent by electronic mail
electronic versions (i.e., soft copies) of such documents.
68
(j)
Notices.
Upon
obtaining knowledge thereof, the Borrower will give written notice to the Agent
immediately of (i) the occurrence of an event or condition consisting of a
Default or Event of Default, specifying the nature and existence thereof and
what action the Credit Parties propose to take with respect thereto, and
(ii) the occurrence of any of the following with respect to any
Consolidated Party (A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against such Person which if adversely
determined is likely to have a Material Adverse Effect, (B) the institution
of any proceedings against such Person with respect to, or the receipt of notice
by such Person of potential liability or responsibility for violation, or
alleged violation of any federal, state or local law, rule or regulation,
including but not limited to, Environmental Laws, the violation of which could
have a Material Adverse Effect, or (C) any notice or determination
concerning the imposition of any withdrawal liability by a Multiemployer Plan
against such Person or any ERISA Affiliate, the determination that a
Multiemployer Plan is, or is expected to be, in reorganization within the
meaning of Title IV of ERISA or the termination of any Plan.
(k)
ERISA.
Upon
obtaining knowledge thereof, the Borrower will give written notice to the Agent
promptly (and in any event within five business days) of: (i) of any event
or condition, including, but not limited to, any Reportable Event, that
constitutes, or might reasonably lead to, an ERISA Event; (ii) with respect
to any Multiemployer Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the Borrower or any
of
its ERISA Affiliates, or of a determination that any Multiemployer Plan is
in
reorganization or insolvent (both within the meaning of Title IV of ERISA);
(iii) the failure to make full payment on or before the due date (including
extensions) thereof of all amounts which any Consolidated Party or any ERISA
Affiliate is required to contribute to each Plan pursuant to its terms and
as
required to meet the minimum funding standard set forth in ERISA and the Code
with respect thereto; or (iv) any change in the funding status of any Plan
that could have a Material Adverse Effect, together with a description of any
such event or condition or a copy of any such notice and a statement by the
chief financial officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action, if any, which has
been or is being taken or is proposed to be taken by the Credit Parties with
respect thereto. Promptly upon request, the Credit Parties shall furnish the
Agent and the Lenders with such additional information concerning any Plan
as
may be reasonably requested, including, but not limited to, copies of each
annual report/return (Form 5500 series), as well as all schedules and
attachments thereto required to be filed with the Department of Labor and/or
the
Internal Revenue Service pursuant to ERISA and the Code, respectively, for
each
“plan year” (within the meaning of Section 3(39) of ERISA).
(l)
Other
Information.
With
reasonable promptness upon any such request, such other information regarding
the business, properties or financial condition of any Consolidated Party as
the
Agent or the Required Lenders may reasonably request.
69
7.2 Preservation
of Existence and Franchises.
Except
as
a result of or in connection with a dissolution, merger or disposition of a
Subsidiary permitted under Section 8.4 or Section 8.5, each Credit
Party will, and will cause each of its Subsidiaries to, do all things necessary
to preserve and keep in full force and effect its existence, rights, franchises
and authority.
7.3 Books
and Records.
Each
Credit Party will, and will cause each of its Subsidiaries to, keep complete
and
accurate books and records of its transactions in accordance with good
accounting practices on the basis of GAAP (including the establishment and
maintenance of appropriate reserves).
7.4 Compliance
with Law.
Each
Credit Party will, and will cause each of its Subsidiaries to, comply with
all
laws, rules, regulations and orders, and all applicable restrictions imposed
by
all Governmental Authorities, applicable to it and its Property if noncompliance
with any such law, rule, regulation, order or restriction could have a Material
Adverse Effect.
7.5 Payment
of Taxes and Other Indebtedness.
Each
Credit Party will, and will cause each of its Subsidiaries to, pay and discharge
(a) all taxes, assessments and governmental charges or levies imposed upon
it, or upon its income or profits, or upon any of its properties, before they
shall become delinquent, (b) all lawful claims (including claims for labor,
materials and supplies) which, if unpaid, might give rise to a Lien upon any
of
its properties, and (c) except as prohibited hereunder, all of its other
Indebtedness as it shall become due; provided,
however,
that no
Consolidated Party shall be required to pay any such tax, assessment, charge,
levy, claim or Indebtedness which is being contested in good faith by
appropriate proceedings and as to which adequate reserves therefor have been
established in accordance with GAAP, unless the failure to make any such payment
(i) could give rise to an immediate right to foreclose on a Lien securing
such amounts or (ii) could have a Material Adverse Effect.
7.6 Insurance.
Each
Credit Party will, and will cause each of its Subsidiaries to, at all times
maintain in full force and effect insurance (including worker’s compensation
insurance, liability insurance, casualty insurance and business interruption
insurance) in such amounts, covering such risks and liabilities and with such
deductibles or self-insurance retentions as are in accordance with normal
industry practice (or as otherwise required by the Collateral Documents). The
Agent shall be named as loss payee or mortgagee, as its interest may appear,
and/or additional insured with respect to any such insurance providing coverage
in respect of any Collateral, and each provider of any such insurance shall
agree, by endorsement upon the policy or policies issued by it or by independent
instruments furnished to the Agent, that it will give the Agent thirty (30)
days prior written notice before any such policy or policies shall be altered
or
canceled, and that no act or default of any Consolidated Party or any other
Person shall affect the rights of the Agent or the Lenders under such policy
or
policies. The present insurance coverage of the Consolidated Parties is outlined
as to carrier, policy number, expiration date, type and amount on Schedule 7.6.
70
7.7 Maintenance
of Property.
Each
Credit Party will, and will cause each of its Subsidiaries to, maintain and
preserve its properties and equipment material to the conduct of its business
in
good repair, working order and condition, normal wear and tear and casualty
and
condemnation excepted, and will make, or cause to be made, in such properties
and equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper,
to
the extent and in the manner customary for companies in similar
businesses.
7.8 Performance
of Obligations.
Each
Credit Party will, and will cause each of its Subsidiaries to, perform in all
material respects all of its obligations under the terms of all material
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound.
7.9 Use
of
Proceeds.
The
Borrower will use the proceeds of the Loans and will use the Letters of Credit
solely for the purposes set forth in Section 6.15.
7.10 Audits/Inspections.
Upon
reasonable notice and during normal business hours, each Credit Party will,
and
will cause each of its Subsidiaries to, permit representatives appointed by
the
Agent, including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect its property, including its
books
and records, its accounts receivable and inventory, its facilities and its
other
business assets, and to make photocopies or photographs thereof and to write
down and record any information such representative obtains and shall permit
the
Agent or its representatives to investigate and verify the accuracy of
information provided to the Lenders and to discuss all such matters with the
officers, employees and representatives of such Person. The Credit Parties
agree
that the Agent, and its representatives, may conduct an annual audit of the
Collateral, at the expense of the Borrower.
7.11 Financial
Covenants.
(a)
Fixed
Charge Coverage Ratio.
The
Fixed Charge Coverage Ratio, as of the last day of each fiscal quarter of the
Consolidated Parties for each date of determination occurring during each of
the
periods listed below, shall be greater than or equal to:
Period
|
Ratio
|
|
Closing
Date through Fiscal year 2008
|
1.30
to 1.0
|
|
Fiscal
year 2009 and thereafter
|
1.80
to 1.0
|
71
(b)
Leverage
Ratio.
The
Leverage Ratio, as of the last day of each fiscal quarter of the Consolidated
Parties for each date of determination shall be less than or equal to 3.50
to
1.0.
On
June 30 and December 31 of each fiscal year, the Borrower shall
provide the Agent with written notice of any Person that has since become a
Subsidiary of any Credit Party, setting forth information in reasonable detail
describing all of the assets of such Person and shall (a) if such Person is
a Domestic Subsidiary of a Credit Party, cause such Person to execute a Joinder
Agreement in substantially the same form as Exhibit 7.12,
(b) cause 100% (if such Person is a Domestic Subsidiary of a Credit Party)
or 65% (if such Person is a direct Foreign Subsidiary of a Credit Party) of
the
Capital Stock of such Person to be delivered to the Agent (together with undated
stock powers signed in blank (unless, with respect to a Foreign Subsidiary,
such
stock powers are deemed unnecessary by the Agent in its reasonable discretion
under the law of the jurisdiction of incorporation of such Person)) and pledged
to the Agent pursuant to an appropriate pledge agreement(s) in substantially
the
form of the Pledge Agreement and otherwise in form acceptable to the Agent
and
(c) cause such Person to provide certified resolutions and other
organizational and authorizing documents of such Person, favorable opinions
of
counsel to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation referred to
above and the perfection of the Agent’s liens thereunder) and other items of the
types required to be delivered pursuant to Section 5.1(e), all in form, content
and scope reasonably satisfactory to the Agent.
7.13 Pledged
Assets.
Each
Credit Party will, and will cause each of its Subsidiaries to, cause
(a) all of its owned personal property located in the United States and
(b) to the extent deemed to be material by the Agent or the Required
Lenders in its or their sole reasonable discretion, all of its other owned
personal property, to be subject at all times to first priority, perfected
Liens
in favor of the Agent pursuant to the terms and conditions of the Collateral
Documents or, with respect to any such property acquired subsequent to the
Closing Date, such other additional security documents as the Agent shall
reasonably request. Without limiting the generality of the above, on
June 30 and December 31 of each fiscal year, the Credit Parties will
cause 100% of the Capital Stock or other equity interest in each of their direct
or indirect Domestic Subsidiaries and 65% of the Capital Stock or other equity
interest in each of their direct Foreign Subsidiaries to be subject at all
times
to a first priority, perfected Lien in favor of the Agent pursuant to the terms
and conditions of the Collateral Documents or such other security documents
as
the Agent shall reasonably request.
If,
subsequent to the Closing Date, a Credit Party shall acquire any intellectual
property, securities, instruments, chattel paper or other personal property
required to be delivered to the Agent as Collateral hereunder or under any
of
the Collateral Documents, the Borrower shall, by June 30 and
December 31 of each fiscal year, notify the Agent of same.
72
7.14
Landlord
Waivers.
In
the
case of any personal property Collateral located at premises leased by a Credit
Party with a value in excess of $1,500,000, the Credit Parties will provide
the
Administrative Agent with such estoppel letters, consents and waivers from
the
landlords on
such
real property to the extent (a)
requested by the Administrative Agent and (b)
the
Borrower is able to secure such letters, consents and waivers after using
commercially reasonable efforts (such letters, consents and waivers shall be
in
form and substance satisfactory to the Administrative Agent); provided
that it
is acknowledged and agreed that the Borrower shall not be required to change
or
alter any terms of any lease in order to secure any such letter, consent or
waiver.
7.15
Post-Closing
Requirements; Further Assurances.
(a)
Within
thirty (30) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received evidence that all chain-of-title issues with respect to the
Intellectual Property of the Credit Parties have been resolved to the
satisfaction of the Administrative Agent.
(b)
Within
thirty (30) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received all stock or membership certificates that are not delivered on or
prior
to the Closing Date, together with duly executed in blank undated stock or
transfer powers.
(c)
Within
thirty (30) days after the Closing Date (or such extended period of time as
agreed to by the Administrative Agent), the Administrative Agent shall have
received evidence that Financing Statement Number 2004029728-5 filed against
RA
Sushi Las Vegas Corporation by Sysco Food Services of Las Vegas, Inc. in the
Nevada Secretary of State’s office has been terminated of record.
(d)
Upon
the
reasonable request of the Administrative Agent, promptly perform or cause to
be
performed any and all acts and execute or cause to be executed any and all
documents for filing under the provisions of the Uniform Commercial Code or
any
other Requirement of Law which are necessary or advisable to maintain in favor
of the Administrative Agent, for the benefit of the Lenders, Liens on the
Collateral that are duly perfected in accordance with the requirements of,
or
the obligations of the Credit Parties under, the Credit Documents and all
applicable Requirements of Law.
73
SECTION
8
NEGATIVE
COVENANTS
Each
Credit Party hereby covenants and agrees that, so long as this Credit Agreement
is in effect or any amounts payable hereunder or under any other Credit Document
shall remain outstanding, and until all of the Commitments hereunder shall
have
terminated:
8.1 Indebtedness.
The
Credit Parties will not permit any Consolidated Party to contract, create,
incur, assume or permit to exist any Indebtedness, except:
(a)
Indebtedness
arising under this Credit Agreement and the other Credit Documents;
(b)
Indebtedness
of the Borrower and its Subsidiaries set forth in Schedule 8.1
(and
renewals, refinancings and extensions thereof on terms and conditions no less
favorable to such Person than such existing Indebtedness);
(c)
purchase
money Indebtedness consisting of Capital Leases;
(d) obligations
of the Borrower or any of its Subsidiaries in respect of Hedging Agreements
entered into in order to manage existing or anticipated interest rate or
exchange rate risks and not for speculative purposes;
(e)
intercompany
Indebtedness arising out of loans and advances permitted under
Section 8.6;
(f)
in
addition to the Indebtedness otherwise permitted by this Section 8.1, other
Indebtedness hereafter incurred by the Borrower or any of its Subsidiaries
in an
aggregate amount not to exceed $2,000,000 at any time outstanding;
(g)
Indebtedness
incurred under take-or-pay or similar arrangements or under commodities
agreements entered into in the ordinary course of business; provided
that the
term of such arrangement is twelve (12) months or less; and
(h)
the
Permitted Preferred Stock.
8.2
Liens.
The
Credit Parties will not permit any Consolidated Party to contract, create,
incur, assume or permit to exist any Lien with respect to any of its Property,
whether now owned or after acquired, except for Permitted Liens.
74
8.3
Nature
of Business.
The
Credit Parties will not permit any Consolidated Party to substantively alter
the
character or conduct of the business conducted by such Person as of the Closing
Date.
8.4
Consolidation,
Merger, Dissolution, etc.
Except
in
connection with an Asset Disposition permitted by the terms of Section 8.5,
the Credit Parties will not permit any Consolidated Party to (a)
dissolve, liquidate or
wind
up their affairs except that any Guarantor may wind up, liquidate and dissolve,
provided,
that,
each of
the following conditions is satisfied, (i) the winding up, liquidation and
dissolution of such Guarantor shall not violate any law or any order or decree
of any court or other Governmental Authority in any material respect and shall
not conflict with or result in the breach of, or constitute a default under,
any
indenture, mortgage, deed of trust, or any other agreement or instrument to
which such Guarantor is a party or may be bound, (ii) such winding up,
liquidation or dissolution shall be done in accordance with the requirements
of
all applicable laws and regulations, (iii) effective upon such winding up,
liquidation or dissolution, all of the assets and properties of such Guarantor
shall be duly and validly transferred and assigned to Borrower or another
Guarantor, free and clear of any liens, restrictions or encumbrances other
than
the security interest and liens of the Agent and any Lien on such assets
existing at the time of such dissolution or liquidation (and the Agent shall
have received such evidence thereof as the Agent may require) and the Agent
shall have received such deeds, assignments or other agreements as the Agent
may
request to evidence and confirm the transfer of such assets to of such Guarantor
to the Borrower or the other Guarantor, (iv) the Agent shall have received
within five (5) Business Days of receipt by a Guarantor thereof, certified
copies of all documents and agreements that such Guarantor has filed with any
Governmental Authority or as are otherwise required to effectuate such winding
up, liquidation or dissolution, (v) no Guarantor shall assume any Indebtedness,
obligations or liabilities as a result of such winding up, liquidation or
dissolution, or otherwise become liable in respect of any obligations or
liabilities of the entity that is winding up, liquidating or dissolving, unless
such Indebtedness is otherwise expressly permitted hereunder, (vi) the Agent
shall have received not less than ten (10) Business Days prior written notice
of
the intention of such Guarantor to wind up, liquidate or dissolve, and (vii)
as
of the date of such winding up, liquidation or dissolution and after giving
effect thereto, no Default or Event of Default shall have occurred or be
continuing, (b)
enter
into any transaction of merger or consolidation; provided,
however
that the
Borrower may merge or consolidate with any Subsidiary so long as the Borrower
shall be the continuing or surviving corporation or (c)
acquire
all or substantially all of the assets, property and/or operations of any Person
other than Permitted Acquisitions.
The
Credit Parties will not permit any Consolidated Party to make any Asset
Disposition (including, without limitation, any Sale and Leaseback Transaction)
other than Excluded Asset Dispositions unless (a) the consideration paid in
connection therewith is cash or Cash Equivalents, (b) if such transaction
is a Sale and Leaseback Transaction, such transaction is permitted by the terms
of Section 8.12, and (c) the aggregate net book value of all of the
assets sold or otherwise disposed of by the Consolidated Parties in all such
transactions after the Closing Date shall not exceed $10,000,000.
75
Upon
a
sale of assets or the sale of Capital Stock of a Consolidated Party permitted
by
this Section 8.5, the Agent shall (to the extent applicable) deliver to the
Borrower, upon the Borrower’s request and at the Borrower’s expense, such
documentation as is reasonably necessary to evidence the release of the Agent’s
security interest, if any, in such assets or Capital Stock, including, without
limitation, amendments or terminations of UCC financing statements, if any,
the
return of stock certificates, if any, and the release of such Subsidiary from
all of its obligations, if any, under the Credit Documents.
8.6
Investments.
The
Credit Parties will not permit any Consolidated Party to make Investments in
or
to any Person, except for Permitted Investments.
8.7
Restricted
Payments.
The
Credit Parties will not permit any Consolidated Party to, directly or
indirectly, declare, order, make or set apart any sum for or pay any Restricted
Payment, except (a) to make dividends payable solely in the same class of
Capital Stock (or in another class of Capital Stock to the extent no cash
payments are paid) of such Person, (b) to make dividends or other
distributions payable to the Borrower (directly or indirectly through
Subsidiaries) or any redemption, retirement, sinking fund or similar payment
to
the Borrower (directly or indirectly through Subsidiaries) and (c) so long
as no Default or Event of Default shall have occurred and be continuing, or
would result therefrom, to make dividends or payments to the holders of the
Permitted Preferred Stock pursuant to the Certificate of Designations and the
Stock Purchase Agreement.
8.8
Transactions
with Affiliates.
Except
for the transactions referenced on Schedule 8.8,
the
Credit Parties will not permit any Consolidated Party to enter into or permit
to
exist any transaction or series of transactions with any officer, director,
shareholder, Subsidiary or Affiliate of such Person other than (a) advances
of working capital to any Credit Party, (b) transfers of cash and assets to
any Credit Party, (c) transactions permitted by Section 8.1,
Section 8.4, Section 8.5, Section 8.6, or Section 8.7,
(d) normal compensation and reimbursement of, and indemnification against,
expenses of officers and directors as approved by the Board of Directors (or
any
duly appointed committee thereof) in its reasonable discretion and
(e) except as otherwise specifically limited in this Credit Agreement,
other transactions which are entered into in the ordinary course of such
Person’s business on terms and conditions substantially as favorable to such
Person as would be obtainable by it in a comparable arms-length transaction
with
a Person other than an officer, director, shareholder, Subsidiary or
Affiliate.
76
8.9
Fiscal
Year; Organizational Documents.
The
Credit Parties will not permit any Consolidated Party to change its fiscal
year
or amend, modify or change its articles of incorporation (or corporate charter
or other similar organizational document) or bylaws (or other similar document)
without the prior written consent of the Required Lenders.
8.10 Limitation
on Restricted Actions.
The
Credit Parties will not permit any Consolidated Party to
(a) directly
or indirectly, create or otherwise cause or suffer to exist or become effective
any encumbrance or restriction on the ability of any such Person to (i) pay
dividends or make any other distributions to any Credit Party on its Capital
Stock or with respect to any other interest or participation in, or measured
by,
its profits, (ii) pay any Indebtedness or other obligation owed to any
Credit Party, (iii) make loans or advances to any Credit Party,
(iv) sell, lease or transfer any of its properties or assets to any Credit
Party, or (v) act as a Guarantor and pledge its assets pursuant to the
Credit Documents or any renewals, refinancings, exchanges, refundings or
extension thereof, except (in respect of any of the matters referred to in
clauses (i)-(v) above) for such encumbrances or restrictions existing under
or by reason of (A) this Credit Agreement and the other Credit Documents,
(B) applicable law or (C) any document or instrument governing
Indebtedness incurred pursuant to Section 8.1(c), provided,
however,
that
any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith; or
(b) enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of
any
security for such obligation if security is given for some other obligation,
except (i) pursuant to this Credit Agreement and the other Credit
Documents, and (ii) pursuant to any document or instrument governing
Indebtedness incurred pursuant to Section 8.1(c), provided,
however,
that
any such restriction contained therein relates only to the asset or assets
constructed or acquired in connection therewith.
8.11
Ownership
of Subsidiaries.
Notwithstanding
any other provisions of this Credit Agreement to the contrary, the Credit
Parties will not permit any Consolidated Party to (a) permit any Person
(other than the Borrower, BOT (and those Persons who beneficially own the
Capital Stock of BOT as of the Closing Date), BFC Financial Corporation or
any
Wholly-Owned Subsidiary of the Borrower) to own more than twenty-five percent
(25%) of any Subsidiary of the Borrower, (b) permit any Subsidiary of the
Borrower to issue Capital Stock (except to the Borrower or to a Wholly-Owned
Subsidiary of the Borrower), and (c) permit, create, incur, assume or
suffer to exist any Lien thereon, in each case except (i) to qualify
directors where required by applicable law or to satisfy other requirements
of
applicable law with respect to the ownership of Capital Stock of Foreign
Subsidiaries, (ii) as a result of or in connection with a dissolution,
merger or disposition of a Subsidiary permitted under Section 8.4 or
Section 8.5 or (iii) for Permitted Liens.
77
8.12
Sale
Leasebacks.
The
Credit Parties will not permit any Consolidated Party to, directly or
indirectly, become or remain liable as lessee or as guarantor or other surety
with respect to any lease, whether an Operating Lease or a Capital Lease, of
any
Property (whether real, personal or mixed), whether now owned or hereafter
acquired, (a) which such Consolidated Party has sold or transferred or is
to sell or transfer to a Person which is not a Consolidated Party or
(b) which such Consolidated Party intends to use for substantially the same
purpose as any other Property which has been sold or is to be sold or
transferred by such Consolidated Party to another Person which is not a
Consolidated Party in connection with such lease.
8.13
[Reserved].
8.14
Stock
Purchase Agreement.
The
Borrower shall not, nor shall it permit any Consolidated Party to, redeem the
Permitted Preferred Stock for cash on an Early Redemption Date (as defined
in
the Certificate of Designations).
SECTION
9
EVENTS
OF DEFAULT
9.1
Events
of Default.
An
Event
of Default shall exist upon the occurrence of any of the following specified
events (each an “Event
of Default”):
(a)
Payment.
Any
Credit Party shall
(i)
default
in the payment when due of any principal of any of the Loans or of any
reimbursement obligations arising from drawings under Letters of Credit, or
(ii) default,
and such default shall continue for five (5) or more Business Days, in the
payment when due of any interest on the Loans or on any reimbursement
obligations arising from drawings under Letters of Credit, or of any Fees or
other amounts owing hereunder, under any of the other Credit Documents or in
connection herewith or therewith; or
(b)
Representations.
Any
representation, warranty or statement made or deemed to be made by any Credit
Party herein, in any of the other Credit Documents, or in any statement or
certificate delivered or required to be delivered pursuant hereto or thereto
shall prove untrue in any material respect on the date as of which it was deemed
to have been made; or
78
(c)
Covenants.
Any
Credit Party shall
(i)
default
in the due performance or observance of any term, covenant or agreement
contained in Sections 7.2, 7.9, 7.11, 7.12, 7.13 or 8.1 through 8.13,
inclusive;
(ii) default
in the due performance or observance of any term, covenant or agreement
contained in Sections 7.1(a), (b), (c) or (d) and such default shall
continue unremedied for a period of at least ten (10) days after the
earlier of a responsible officer of a Credit Party becoming aware of such
default or notice thereof by the Agent; or
(iii) default
in the due performance or observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b), (c)(i) or (c)(ii) of
this Section 9.1) contained in this Credit Agreement and such default shall
continue unremedied for a period of at least thirty (30) days after the
earlier of a responsible officer of a Credit Party becoming aware of such
default or notice thereof by the Agent; or
(d) Other
Credit Documents.
(i) Any Credit Party shall default in the due performance or observance of
any term, covenant or agreement in any of the other Credit Documents (subject
to
applicable grace or cure periods, if any), or (ii) except as a result of or
in connection with a dissolution, merger or disposition of a Subsidiary
permitted under Section 8.4 or Section 8.5, any Credit Document shall
fail to be in full force and effect or to give the Agent and/or the Lenders
the
Liens, rights, powers and privileges purported to be created thereby, or any
Credit Party shall so state in writing; or
(e)
Guaranties.
Except
as the result of or in connection with a dissolution, merger or disposition
of a
Subsidiary permitted under Section 8.4 or Section 8.5, the guaranty
given by any Guarantor hereunder (including any Additional Credit Party) or
any
provision thereof shall cease to be in full force and effect, or any Guarantor
(including any Additional Credit Party) hereunder or any Person acting by or
on
behalf of such Guarantor shall deny or disaffirm such Guarantor’s obligations
under such guaranty, or any Guarantor shall default in the due performance
or
observance of any term, covenant or agreement on its part to be performed or
observed pursuant to any guaranty; or
(f)
Bankruptcy,
etc.
Any
Bankruptcy Event shall occur with respect to any Consolidated Party;
or
79
(g)
Defaults
under Other Agreements.
(i)
Any
Consolidated Party shall default in the performance or observance (beyond the
applicable grace period with respect thereto, if any) or any material obligation
or condition of any contract or lease material to the Consolidated Parties;
or
(ii) With
respect to any Indebtedness (other than Indebtedness outstanding under this
Credit Agreement) in excess of $1,000,000 in the aggregate for the Consolidated
Parties taken as a whole, (A) any Consolidated Party shall (1) default
in any payment (beyond the applicable grace period with respect thereto, if
any)
with respect to any such Indebtedness, or (2) the occurrence and
continuance of a default in the observance or performance relating to such
Indebtedness or contained in any instrument or agreement evidencing, securing
or
relating thereto, or any other event or condition shall occur or condition
exist, the effect of which default or other event or condition is to cause,
or
permit, the holder or holders of such Indebtedness (or trustee or agent on
behalf of such holders) to cause (determined without regard to whether any
notice or lapse of time is required), any such Indebtedness to become due prior
to its stated maturity; or (B) any such Indebtedness shall be declared due
and payable, or required to be prepaid other than by a regularly scheduled
required prepayment, prior to the stated maturity thereof; or
(h) Judgments.
One or
more judgments or decrees shall be entered against one or more of the
Consolidated Parties involving a liability of $1,000,000 or more in the
aggregate (to the extent not paid or fully covered by insurance provided by
a
carrier who has acknowledged coverage and has the ability to perform) and any
such judgments or decrees shall not have been vacated, discharged or stayed
or
bonded pending appeal within thirty (30) days from the entry thereof;
or
(i)
ERISA.
Any of
the following events or conditions, if such event or condition could have a
Material Adverse Effect: (i) any “accumulated funding deficiency,” as such
term is defined in Section 302 of ERISA and Section 412 of the Code,
whether or not waived, shall exist with respect to any Plan, or any lien shall
arise on the assets of any Consolidated Party or any ERISA Affiliate in favor
of
the PBGC or a Plan; (ii) an ERISA Event shall occur with respect to a
Single Employer Plan, which is, in the reasonable opinion of the Agent, likely
to result in the termination of such Plan for purposes of Title IV of ERISA;
(iii) an ERISA Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is, in the reasonable opinion of the Agent, likely
to result in (A) the termination of such Plan for purposes of Title IV
of ERISA, or (B) any Consolidated Party or any ERISA Affiliate incurring
any liability in connection with a withdrawal from, reorganization of (within
the meaning of Section 4241 of ERISA), or insolvency or (within the meaning
of Section 4245 of ERISA) such Plan; or (iv) any prohibited
transaction (within the meaning of Section 406 of ERISA or
Section 4975 of the Code) or breach of fiduciary responsibility shall occur
which may subject any Consolidated Party or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
the Code, or under any agreement or other instrument pursuant to which any
Consolidated Party or any ERISA Affiliate has agreed or is required to indemnify
any person against any such liability; or
80
(j)
Ownership.
There
shall occur a Change of Control.
(k)
Key
Officer.
Either
of the following events or conditions shall occur: (i) Xxxx X. Xxxxxxxx
shall cease to be Responsible Officer of the Borrower or (ii) both of Xxxx
X. Xxxxxxxx and Xxxx X. Xxxxxx shall cease to be actively engaged in the daily
management and/or operations of the Borrower.
9.2
Acceleration;
Remedies.
Upon
the
occurrence of an Event of Default, and at any time thereafter unless and until
such Event of Default has been waived by the requisite Lenders (pursuant to
the
voting requirements of Section 11.6) or cured to the satisfaction of the
requisite Lenders (pursuant to the voting procedures in Section11.6), the Agent
shall, upon the request and direction of the Required Lenders, by written notice
to the Credit Parties take any of the following actions:
(a)
Termination
of Commitments.
Declare
the Commitments terminated whereupon the Commitments shall be immediately
terminated.
(b) Acceleration.
Declare
the unpaid principal of and any accrued interest in respect of all Loans, any
reimbursement obligations arising from drawings under Letters of Credit and
any
and all other indebtedness or obligations of any and every kind owing by the
Borrower to the Agent and/or any of the Lenders hereunder to be due whereupon
the same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower.
(c)
Cash
Collateral.
Direct
the Borrower to pay (and the Borrower agrees that upon receipt of such notice,
or upon the occurrence of an Event of Default under Section 9.1(f), it will
immediately pay) to the Agent additional cash, to be held by the Agent, for
the
benefit of the Lenders, in a cash collateral account as additional security
for
the LOC Obligations in respect of subsequent drawings under all then outstanding
Letters of Credit in an amount equal to the maximum aggregate amount which
may
be drawn under all Letters of Credits then outstanding.
(d) Enforcement
of Rights.
Enforce
any and all rights and interests created and existing under the Credit Documents
including, without limitation, all rights and remedies existing under the
Collateral Documents, all rights and remedies against a Guarantor and all rights
of set-off.
Notwithstanding
the foregoing, if an Event of Default specified in Section 9.1(f) shall
occur, then the Commitments shall automatically terminate and all Loans, all
reimbursement obligations arising from drawings under Letters of Credit, all
accrued interest in respect thereof, all accrued and unpaid Fees and other
indebtedness or obligations owing to the Agent and/or any of the Lenders
hereunder automatically shall immediately become due and payable without the
giving of any notice or other action by the Agent or the Lenders.
81
SECTION
10
AGENCY
PROVISIONS
10.1
Appointment,
Powers and Immunities.
Each
Lender hereby irrevocably appoints and authorizes the Agent to act as its agent
under this Credit Agreement and the other Credit Documents with such powers
and
discretion as are specifically delegated to the Agent by the terms of this
Credit Agreement and the other Credit Documents, together with such other powers
as are reasonably incidental thereto. The Agent (which term as used in this
sentence and in Section 10.5 and the first sentence of Section 10.6
hereof shall include its Affiliates and its own and its Affiliates’ officers,
directors, employees, and agents): (a) shall not have any duties or
responsibilities except those expressly set forth in this Credit Agreement
and
shall not be a trustee or fiduciary for any Lender; (b) shall not be
responsible to the Lenders for any recital, statement, representation, or
warranty (whether written or oral) made in or in connection with any Credit
Document or any certificate or other document referred to or provided for in,
or
received by any of them under, any Credit Document, or for the value, validity,
effectiveness, genuineness, enforceability, or sufficiency of any Credit
Document, or any other document referred to or provided for therein or for
any
failure by any Credit Party or any other Person to perform any of its
obligations thereunder; (c) shall not be responsible for or have any duty
to ascertain, inquire into, or verify the performance or observance of any
covenants or agreements by any Credit Party or the satisfaction of any condition
or to inspect the property (including the books and records) of any Credit
Party
or any of its Subsidiaries or Affiliates; (d) shall not be required to
initiate or conduct any litigation or collection proceedings under any Credit
Document; and (e) shall not be responsible for any action taken or omitted
to be taken by it under or in connection with any Credit Document, except for
its own gross negligence or willful misconduct. The Agent may employ agents
and
attorneys-in-fact and shall not be responsible for the negligence or misconduct
of any such agents or attorneys-in-fact selected by it with reasonable
care.
10.2
Reliance
by Agent.
The
Agent
shall be entitled to rely upon any certification, notice, instrument, writing,
or other printed communication (including, without limitation, any thereof
by
telecopy) believed by it to be genuine and correct and to have been signed,
sent
or made by or on behalf of the proper Person or Persons, and upon advice and
statements of legal counsel (including counsel for any Credit Party),
independent accountants, and other experts selected by the Agent. The Agent
may
deem and treat the payee of any Note as the holder thereof for all purposes
hereof unless and until the Agent receives and accepts an Assignment and
Acceptance executed in accordance with Section 11.3(b) hereof. As to any
matters not expressly provided for by this Credit Agreement, the Agent shall
not
be required to exercise any discretion or take any action, but shall be required
to act or to refrain from acting (and shall be fully protected in so acting
or
refraining from acting) upon the instructions of the Required Lenders, and
such
instructions shall be binding on all of the Lenders; provided,
however,
that
the Agent shall not be required to take any action that exposes the Agent to
personal liability or that is contrary to any Credit Document or applicable
law
or unless it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred by it by reason
of taking any such action.
82
10.3
Defaults.
The
Agent
shall not be deemed to have knowledge or notice of the occurrence of a Default
or Event of Default unless the Agent has received written notice from a Lender
or the Borrower specifying such Default or Event of Default and stating that
such notice is a “Notice of Default”. In the event that the Agent receives such
a notice of the occurrence of a Default or Event of Default, the Agent shall
give prompt notice thereof to the Lenders. The Agent shall (subject to
Section 10.2 hereof) take such action with respect to such Default or Event
of Default as shall reasonably be directed by the Required Lenders.
10.4
Rights
as a Lender.
With
respect to its Commitment and the Loans made by it, Wachovia (and any successor
acting as Agent) in its capacity as a Lender hereunder shall have the same
rights and powers hereunder as any other Lender and may exercise the same as
though it were not acting as the Agent, and the term “Lender” or “Lenders”
shall, unless the context otherwise indicates, include the Agent in its
individual capacity. Wachovia (and any successor acting as Agent) and its
Affiliates may (without having to account therefor to any Lender) accept
deposits from, lend money to, make investments in, provide services to, and
generally engage in any kind of lending, trust, or other business with any
Credit Party or any of its Subsidiaries or Affiliates as if it were not acting
as Agent, and Wachovia (and any successor acting as Agent) and its Affiliates
may accept fees and other consideration from any Credit Party or any of its
Subsidiaries or Affiliates for services in connection with this Credit Agreement
or otherwise without having to account for the same to the Lenders.
10.5
Indemnification.
The
Lenders agree to indemnify the Agent (to the extent not reimbursed under
Section 11.5 hereof, but without limiting the obligations of the Borrower
under such Section) ratably in accordance with their respective Commitments,
for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including attorneys’ fees), or disbursements
of any kind and nature whatsoever that may be imposed on, incurred by or
asserted against the Agent (including by any Lender) in any way relating to
or
arising out of any Credit Document or the transactions contemplated thereby
or
any action taken or omitted by the Agent under any Credit Document; provided
that no
Lender shall be liable for any of the foregoing to the extent they arise from
the gross negligence or willful misconduct of the Person to be indemnified.
Without limitation of the foregoing, each Lender agrees to reimburse the Agent
promptly upon demand for its ratable share of any costs or expenses payable
by
the Borrower under Section 11.5, to the extent that the Agent is not
promptly reimbursed for such costs and expenses by the Borrower. The agreements
in this Section 10.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents and the termination
of the Commitments hereunder.
83
10.6
Non-Reliance
on Agent and Other Lenders.
Each
Lender agrees that it has, independently and without reliance on the Agent
or
any other Lender, and based on such documents and information as it has deemed
appropriate, made its own credit analysis of the Credit Parties and their
Subsidiaries and decision to enter into this Credit Agreement and that it will,
independently and without reliance upon the Agent or any other Lender, and
based
on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under the Credit Documents. Except for notices, reports, and other documents
and
information expressly required to be furnished to the Lenders by the Agent
hereunder, the Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the affairs, financial
condition, or business of any Credit Party or any of its Subsidiaries or
Affiliates that may come into the possession of the Agent or any of its
Affiliates.
10.7
Successor
Agent.
The
Agent
may resign at any time by giving notice thereof to the Lenders and the Borrower.
Upon any such resignation, the Required Lenders shall have the right to appoint
a successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders 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 Lenders, appoint
a
successor Agent which shall be a commercial bank organized under the laws of
the
United States of America having combined capital and surplus of at least
$100,000,000. Upon the acceptance of any appointment as Agent hereunder by
a
successor, such successor shall thereupon succeed to and become vested with
all
the rights, powers, discretion, 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 hereunder as Agent, the
provisions of this Section 10 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.
84
SECTION
11
MISCELLANEOUS
11.1 Notices.
Except
as
otherwise expressly provided herein, all notices and other communications shall
have been duly given and shall be effective (a) when delivered,
(b) when transmitted via telecopy (or other electronic or facsimile device)
to the number set out below, (c) the Business Day following the day on
which the same has been delivered prepaid to a reputable national overnight
air
courier service, or (d) the third Business Day following the day on which
the same is sent by certified or registered mail, postage prepaid, in each
case
to the respective parties at the address, in the case of the Borrower,
Guarantors and the Agent, set forth below, and, in the case of the Lenders,
set
forth on Schedule 2.1(a),
or at
such other address as such party may specify by written notice to the other
parties hereto:
if
to the
Borrower or the Guarantors:
0000
X.X.
00xx Xxxxxxx
Xxxxx,
Xxxxxxx 00000-0000
Attention: Xx.
Xxxx
X. Xxxxxxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
if
to the
Agent:
Wachovia
Bank, National Association
Wachovia
Financial Center - FL 8004
000
Xxxxx
Xxxxxxxx Xxxx., 00xx Xxxxx
Xxxxx,
Xxxxxxx 00000
Attention: Xxxxxxxxx
X. Xxxxxxx
Telephone: (000)
000-0000
Telecopy: (000)
000-0000
11.2
Right
of Set-Off; Adjustments.
Upon
the
occurrence and during the continuance of any Event of Default, each Lender
(and
each of its Affiliates) is hereby authorized at any time and from time to time,
to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any
time
held and other indebtedness at any time owing by such Lender (or any of its
Affiliates) to or for the credit or the account of any Credit Party against
any
and all of the obligations of such Person now or hereafter existing under this
Credit Agreement, under the Notes, under any other Credit Document or otherwise,
irrespective of whether such Lender shall have made any demand under hereunder
or thereunder and although such obligations may be unmatured. Each Lender agrees
promptly to notify any affected Credit Party after any such set-off and
application made by such Lender; provided,
however,
that
the failure to give such notice shall not affect the validity of such set-off
and application. The rights of each Lender under this Section 11.2 are in
addition to other rights and remedies (including, without limitation, other
rights of set-off) that such Lender may have.
11.3 Benefit
of Agreement.
(a)
This
Credit Agreement shall be binding upon and inure to the benefit of and be
enforceable by the respective successors and assigns of the parties hereto;
provided
that
none of the Credit Parties may assign or transfer any of its interests and
obligations without prior written consent of the Lenders; provided,
further
that the
rights of each Lender to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth in this
Section 11.3.
85
(b) Each
Lender may assign to one or more Eligible Assignees all or a portion of its
rights and obligations under this Credit Agreement (including, without
limitation, all or a portion of its Loans, its Notes, and its Commitment);
provided,
however,
that
(i)
each
such
assignment shall be to an Eligible Assignee;
(ii)
except
in
the case of an assignment to another Lender or an assignment of all of a
Lender’s rights and obligations under this Credit Agreement, any such partial
assignment shall be in an amount at least equal to $5,000,000 (or, if less,
the
remaining amount of the Commitment being assigned by such Lender) or an integral
multiple of $1,000,000 in excess thereof;
(iii) each
such
assignment by a Lender shall be of a constant, and not varying, percentage
of
its Revolving Commitment and all other rights and obligations under this Credit
Agreement and the Notes; and
(iv) the
parties to such assignment shall execute and deliver to the Agent for its
acceptance an Assignment and Acceptance in the form of Exhibit 11.3(b)
hereto,
together with any Note subject to such assignment and a processing fee of
$3,500.
Upon
execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder
and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Credit Agreement. Upon
the consummation of any assignment pursuant to this Section 11.3(b), the
assignor, the Agent and the Borrower shall make appropriate arrangements so
that, if required, new Notes are issued to the assignor and the assignee. If
the
assignee is not incorporated under the laws of the United States of America
or a
state thereof, it shall deliver to the Borrower and the Agent certification
as
to exemption from deduction or withholding of Taxes in accordance with
Section 3.11.
(c)
The
Agent
shall maintain at its address referred to in Section 11.1 a copy of each
Assignment and Acceptance delivered to and accepted by it and a register for
the
recordation of the names and addresses of the Lenders and the Commitment of,
and
principal amount of the Loans owing to, each Lender from time to time (the
“Register”).
The
entries in the Register shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agent and the Lenders may treat each
Person whose name is recorded in the Register as a Lender hereunder for all
purposes of this Credit Agreement. The Register shall be available for
inspection by the Borrower or any Lender at any reasonable time and from time
to
time upon reasonable prior notice.
86
(d) Upon
its
receipt of an Assignment and Acceptance executed by the parties thereto,
together with any Note subject to such assignment and payment of the processing
fee, the Agent shall, if such Assignment and Acceptance has been completed
and
is in substantially the form of Exhibit 11.3(b)
hereto,
(i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to
the parties thereto.
(e)
Each
Lender may sell participations to one or more Persons in all or a portion of
its
rights and obligations under this Credit Agreement (including all or a portion
of its Commitment and its Loans); provided,
however,
that
(i) such Lender’s obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, (iii) the
participant shall be entitled to the benefit of the yield protection provisions
contained in Sections 3.6 through 3.12, inclusive, and the right of set-off
contained in Section 11.2, and (iv) the Borrower shall continue to
deal solely and directly with such Lender in connection with such Lender’s
rights and obligations under this Credit Agreement, and such Lender shall retain
the sole right to enforce the obligations of the Borrower relating to its Loans
and its Notes and to approve any amendment, modification, or waiver of any
provision of this Credit Agreement (other than amendments, modifications, or
waivers decreasing the amount of principal of or the rate at which interest
is
payable on such Loans or Notes, extending any scheduled principal payment date
or date fixed for the payment of interest on such Loans or Notes, or extending
its Commitment).
(f)
Notwithstanding
any other provision set forth in this Credit Agreement, any Lender may at any
time assign and pledge all or any portion of its Loans and its Notes to any
Federal Reserve Bank as collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. No such assignment
shall
release the assigning Lender from its obligations hereunder.
(g) Any
Lender may furnish any information concerning the Borrower or any of its
Subsidiaries in the possession of such Lender from time to time to assignees
and
participants (including prospective assignees and participants), subject,
however, to the provisions of Section 11.17 hereof.
11.4
No
Waiver; Remedies Cumulative.
No
failure or delay on the part of the Agent or any Lender in exercising any right,
power or privilege hereunder or under any other Credit Document and no course
of
dealing between the Agent or any Lender and any of the Credit Parties shall
operate as a waiver thereof; nor shall any single or partial exercise of any
right, power or privilege hereunder or under any other Credit Document preclude
any other or further exercise thereof or the exercise of any other right, power
or privilege hereunder or thereunder. The rights and remedies provided herein
are cumulative and not exclusive of any rights or remedies which the Agent
or
any Lender would otherwise have. No notice to or demand on any Credit Party
in
any case shall entitle the Borrower or any other Credit Party to any other
or
further notice or demand in similar or other circumstances or constitute a
waiver of the rights of the Agent or the Lenders to any other or further action
in any circumstances without notice or demand.
87
11.5 Expenses;
Indemnification.
(a) The
Borrower agrees to pay on demand all costs and expenses of the Agent in
connection with the syndication, preparation, execution, delivery,
administration, modification, and amendment of this Credit Agreement, the other
Credit Documents, and the other documents to be delivered hereunder, including,
without limitation, the reasonable fees and expenses of counsel for the Agent
(including the cost of internal counsel) with respect thereto and with respect
to advising the Agent as to its rights and responsibilities under the Credit
Documents. The Borrower further agrees to pay on demand all costs and expenses
of the Agent and the Lenders, if any (including, without limitation, reasonable
attorneys’ fees and expenses and the cost of internal counsel), in connection
with the enforcement (whether through negotiations, legal proceedings, or
otherwise) of the Credit Documents and the other documents to be delivered
hereunder.
(b) The
Borrower agrees to indemnify and hold harmless the Agent and each Lender and
each of their Affiliates and their respective officers, directors, employees,
agents, and advisors (each, an “Indemnified
Party”)
from
and against any and all claims, damages, losses, liabilities, costs, and
expenses (including, without limitation, reasonable attorneys’ fees) that may be
incurred by or asserted or awarded against any Indemnified Party, in each case
arising out of or in connection with or by reason of (including, without
limitation, in connection with any investigation, litigation, or proceeding
or
preparation of defense in connection therewith) the Credit Documents, any of
the
transactions contemplated herein or the actual or proposed use of the proceeds
of the Loans, except to the extent such claim, damage, loss, liability, cost,
or
expense is found in a final, non-appealable judgment by a court of competent
jurisdiction to have resulted from such Indemnified Party’s gross negligence or
willful misconduct. In the case of an investigation, litigation or other
proceeding to which the indemnity in this Section 11.5 applies, such
indemnity shall be effective whether or not such investigation, litigation
or
proceeding is brought by the Borrower, its directors, shareholders or creditors
or an Indemnified Party or any other Person or any Indemnified Party is
otherwise a party thereto and whether or not the transactions contemplated
hereby are consummated. The Borrower agrees not to assert any claim against
the
Agent, any Lender, any of their Affiliates, or any of their respective
directors, officers, employees, attorneys, agents, and advisers, on any theory
of liability, for special, indirect, consequential, or punitive damages arising
out of or otherwise relating to the Credit Documents, any of the transactions
contemplated herein or the actual or proposed use of the proceeds of the
Loans.
(c) Without
prejudice to the survival of any other agreement of the Borrower hereunder,
the
agreements and obligations of the Borrower contained in this Section 11.5 shall
survive the repayment of the Loans, LOC Obligations and other obligations under
the Credit Documents and the termination of the Commitments
hereunder.
88
11.6
Amendments,
Waivers and Consents.
Neither
this Credit Agreement nor any other Credit Document nor any of the terms hereof
or thereof may be amended, changed, waived, discharged or terminated unless
such
amendment, change, waiver, discharge or termination is in writing entered into
by, or approved in writing by, the Required Lenders and the Borrower,
provided,
however,
that:
(a)
without
the consent of each Lender affected thereby, neither this Credit Agreement
or
any other Credit Document may be amended, changed, waived, discharged or
terminated so as to:
(i)
extend
the final maturity of any Loan or the time of payment of any reimbursement
obligation, or any portion thereof, arising from drawings under Letters of
Credit,
(ii) reduce
the rate or extend the time of payment of interest (other than as a result
of
waiving the applicability of any post-default increase in interest rates)
thereon or Fees hereunder,
(iii) reduce
or
waive the principal amount of any Loan or of any reimbursement obligation,
or
any portion thereof, arising from drawings under Letters of Credit,
(iv) increase
the Commitment of a Lender over the amount thereof in effect (it being
understood and agreed that a waiver of any Default or Event of Default or
mandatory reduction in the Commitments shall not constitute a change in the
terms of any Commitment of any Lender),
(v) except
as
the result of or in connection with an Asset Disposition permitted by
Section 8.5, release all or substantially all of the
Collateral,
(vi) except
as
the result of or in connection with a dissolution, merger or disposition of
a
Subsidiary permitted under Section 8.4, release the Borrower or
substantially all of the other Credit Parties from its or their obligations
under the Credit Documents,
(vii) amend,
modify or waive any provision of this Section 11.6 or Section 3.6,
3.7, 3.8, 3.9, 3.10, 3.11, 3.12, 3.13, 3.14, 9.1(a), 11.2, 11.3, 11.5 or
11.9,
(viii) reduce
any percentage specified in, or otherwise modify, the definition of Required
Lenders, or
(ix) consent
to the assignment or transfer by the Borrower or all or substantially all of
the
other Credit Parties of any of its or their rights and obligations under (or
in
respect of) the Credit Documents except as permitted thereby;
89
(b)
without
the consent of the Agent, no provision of Section 10 may be
amended;
(c)
without
the consent of the Issuing Lender, no provision of Section 2.3 may be
amended.
Notwithstanding
the fact that the consent of all the Lenders is required in certain
circumstances as set forth above, (x) each Lender is entitled to vote as
such Lender sees fit on any bankruptcy reorganization plan that affects the
Loans, and each Lender acknowledges that the provisions of Section 1126(c)
of the Bankruptcy Code supersedes the unanimous consent provisions set forth
herein and (y) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency
proceeding.
11.7
Counterparts.
This
Credit Agreement may be executed in any number of counterparts, each of which
when so executed and delivered shall be an original, but all of which shall
constitute one and the same instrument. It shall not be necessary in making
proof of this Credit Agreement to produce or account for more than one such
counterpart for each of the parties hereto. Delivery by facsimile by any of
the
parties hereto of an executed counterpart of this Credit Agreement shall be
as
effective as an original executed counterpart hereof and shall be deemed a
representation that an original executed counterpart hereof will be
delivered.
11.8
Headings.
The
headings of the sections and subsections hereof are provided for convenience
only and shall not in any way affect the meaning or construction of any
provision of this Credit Agreement.
11.9
Survival.
All
indemnities set forth herein, including, without limitation, in
Section 2.3(i), 3.11, 3.12, 10.5 or 11.5 shall survive the execution and
delivery of this Credit Agreement, the making of the Loans, the issuance of
the
Letters of Credit, the repayment of the Loans, LOC Obligations and other
obligations under the Credit Documents and the termination of the Commitments
hereunder, and all representations and warranties made by the Credit Parties
herein shall survive delivery of the Notes and the making of the Loans
hereunder.
11.10
Governing
Law; Submission to Jurisdiction; Venue.
(a)
THIS
CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND OBLIGATIONS
OF THE PARTIES HEREUNDER AND THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED
AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NORTH CAROLINA. Any
legal action or proceeding with respect to this Credit Agreement or any other
Credit Document may be brought in the courts of the State of North Carolina
in
Mecklenburg County, or of the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit Agreement, each of
the
Credit Parties hereby irrevocably accepts for itself and in respect of its
property, generally and unconditionally, the nonexclusive jurisdiction of such
courts. Each of the Credit Parties further irrevocably consents to the service
of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to it at the address set out for notices pursuant to
Section 11.1, such service to become effective three (3) days after
such mailing. Nothing herein shall affect the right of the Agent or any Lender
to serve process in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against any Credit Party in any other
jurisdiction.
90
(b)
Each
of
the Credit Parties hereby irrevocably waives any objection which it may now
or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Credit Agreement or any
other Credit Document brought in the courts referred to in subsection (a)
above and hereby further irrevocably waives and agrees not to plead or claim
in
any such court that any such action or proceeding brought in any such court
has
been brought in an inconvenient forum.
(c) TO
THE
EXTENT PERMITTED BY LAW, EACH OF THE AGENT, THE LENDERS, THE BORROWER AND THE
CREDIT PARTIES HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY
ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT
AGREEMENT, ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
11.11
Severability.
If
any
provision of any of the Credit Documents is determined to be illegal, invalid
or
unenforceable, such provision shall be fully severable and the remaining
provisions shall remain in full force and effect and shall be construed without
giving effect to the illegal, invalid or unenforceable provisions.
11.12 Entirety.
This
Credit Agreement together with the other Credit Documents represent the entire
agreement of the parties hereto and thereto, and supersede all prior agreements
and understandings, oral or written, if any, including any commitment letters
or
correspondence relating to the Credit Documents or the transactions contemplated
herein and therein.
91
11.13 Binding
Effect; Termination.
(a)
This
Credit Agreement shall become effective at such time on or after the Closing
Date when it shall have been executed by the Borrower, the Guarantors and the
Agent, and the Agent shall have received copies hereof (telefaxed or otherwise)
which, when taken together, bear the signatures of each Lender, and thereafter
this Credit Agreement shall be binding upon and inure to the benefit of the
Borrower, the Guarantors, the Agent and each Lender and their respective
successors and assigns.
(b) The
term
of this Credit Agreement shall be until no Loans, LOC Obligations or any other
amounts payable hereunder or under any of the other Credit Documents shall
remain outstanding, no Letters of Credit shall be outstanding, all of the Credit
Party Obligations have been irrevocably satisfied in full and all of the
Commitments hereunder shall have expired or been terminated.
11.14
Source
of Funds.
Each
of
the Lenders hereby represents and warrants to the Borrower that at least one
of
the following statements is an accurate representation as to the source of
funds
to be used by such Lender in connection with the financing hereunder:
(a)
no
part
of such funds constitutes assets allocated to any separate account maintained
by
such Lender in which any employee benefit plan (or its related trust) has any
interest;
(b)
to
the
extent that any part of such funds constitutes assets allocated to any separate
account maintained by such Lender, such Lender has disclosed to the Borrower
the
name of each employee benefit plan whose assets in such account exceed 10%
of
the total assets of such account as of the date of such purchase (and, for
purposes of this subsection (b), all employee benefit plans maintained by
the same employer or employee organization are deemed to be a single
plan);
(c)
to
the
extent that any part of such funds constitutes assets of an insurance company’s
general account, such insurance company has complied with all of the
requirements of the regulations issued under Section 401(c)(1)(A) of ERISA;
or
(d)
such
funds constitute assets of one or more specific benefit plans which such Lender
has identified in writing to the Borrower.
As
used
in this Section 11.14, the terms “employee benefit plan” and “separate
account” shall have the respective meanings assigned to such terms in Section 3
of ERISA.
92
11.15
Conflict.
To
the
extent that there is a conflict or inconsistency between any provision hereof,
on the one hand, and any provision of any Credit Document, on the other hand,
this Credit Agreement shall control.
11.16
Arbitration;
Consent to Jurisdiction and Service of Process.
(a) Upon
demand of any party hereto, whether made before or after institution of any
judicial action, any dispute, claim or controversy arising out of or connected
herewith or with the Credit Documents (“Disputes”)
shall
be resolved by binding arbitration as provided herein. Disputes may include,
without limitation, tort claims, counterclaims, claims brought as class actions
and claims arising herefrom or from Credit Documents executed in the future.
Arbitration shall be conducted under the Commercial Financial Disputes
Arbitration Rules (the “Arbitration
Rules”)
of the
American Arbitration Association and Title 9 of the U.S. Code. All
arbitration hearings shall be conducted in Miami, Miami-Dade County, Florida,
or
such other place as agreed to in writing by the parties. A judgment upon the
award may be entered in any court having jurisdiction, and all decisions shall
be in writing. The panel from which all arbitrators are selected shall be
comprised of licensed attorneys having at least ten years’ experience
representing parties in secured lending transactions. Notwithstanding the
foregoing, this arbitration provision does not apply to disputes under or
related to interest protection agreements.
(b) Notwithstanding
the preceding binding arbitration provision, the Agent, on behalf of the
Lenders, preserves certain remedies that may be exercised during a Dispute.
The
Agent, on behalf of the Lenders, shall have the right to proceed in any court
of
proper jurisdiction or by self help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale granted in
the
Credit Documents or under applicable law, (ii) all rights of self help
including peaceful occupation of real property and collection of rents, set-off
and peaceful possession of personal property, (iii) obtaining provisional
or ancillary remedies including injunctive relief, sequestration, garnishment,
attachment and appointment of receiver, (iv) when applicable, a judgment by
confession of judgment and (v) other remedies. Preservation of these
remedies does not limit the power of an arbitrator to grant similar remedies
that may be requested by a party in a Dispute.
(c) By
execution and delivery of this Credit Agreement, each of the parties hereto
accepts, for itself and in connection with its properties, generally and
unconditionally, the non-exclusive jurisdiction relating to any arbitration
proceedings conducted under the Arbitration Rules in Miami, Miami-Dade County,
Florida, and irrevocably agrees to be bound by any final judgment rendered
thereby in connection with this Credit Agreement from which no appeal has been
taken or is available. Each of the parties hereto irrevocably agrees that all
process in any such arbitration proceedings or otherwise may be effected by
mailing a copy thereof by registered or certified mail (or any substantially
similar form of mail), postage prepaid, to it at its address set forth in
Section 11.1 or at such other address of which such party shall have been
notified pursuant thereto, such service being hereby acknowledged by each party
hereto to be effective and binding service in every respect. Each party hereto
irrevocably waives any objection, including, without limitation, any objection
to the laying of venue or based on the grounds of forum non conveniens which
it
may now or hereafter have to the bringing of any such action or proceeding
in
any such jurisdiction. Nothing herein shall affect the right to serve process
in
any other manner permitted by law or shall limit the right of any party to
bring
proceedings against the Borrower or any party hereto in any court or pursuant
to
arbitration proceedings in any other jurisdiction.
93
11.17
Confidentiality.
Each
of
the Agent, the Lenders and the Issuing Lender agrees to maintain the
confidentiality of the Information (as defined below), except that Information
may be disclosed (a)
to its
Affiliates and to its and its Affiliates’ respective partners, directors,
officers, employees, agents, advisors and other representatives (it being
understood that the Persons to whom such disclosure is made will be informed
of
the confidential nature of such Information and instructed to keep such
Information confidential), (b)
to the
extent requested by any regulatory authority purporting to have jurisdiction
over it (including any self-regulatory authority, such as the National
Association of Insurance Commissioners), (c)
to the
extent required by applicable laws or regulations or by any subpoena or similar
legal process, (d)
to any
other party hereto, (e)
in
connection with the exercise of any remedies hereunder or under any other Credit
Document or any action or proceeding relating to this Agreement or any other
Credit Document or the enforcement of rights hereunder or thereunder,
(f)
subject
to an agreement containing provisions substantially the same as those of this
Section, to (i)
any
assignee of or Participant in, or any prospective assignee of or Participant
in,
any of its rights or obligations under this Agreement,
(ii)
any
actual or prospective counterparty (or its advisors) to any swap or derivative
transaction relating to the Borrower and its obligations, (iii)
to an
investor or prospective investor in an Approved Fund
that
also agrees that Information shall be used solely for the purpose of evaluating
an investment in such Approved Fund, (iv)
to a
trustee, collateral manager, servicer, backup servicer, noteholder or secured
party in an Approved Fund in connection with the administration, servicing
and
reporting on the assets serving as collateral for an Approved Fund,
or
(v)
to a
nationally recognized rating agency that requires access to information
regarding the Credit Parties, the Loans and Credit Documents in connection
with
ratings issued with respect to an Approved Fund, (g)
with
the consent of the Borrower or (h)
to the
extent such Information (i)
becomes
publicly available other than as a result of a breach of this Section or
(ii)
becomes
available to the Administrative Agent, any Lender, the Issuing Lender or any
of
their respective Affiliates on a nonconfidential basis from a source other
than
the Borrower.
For
purposes of this Section, “Information”
means
all information received from the Borrower or any of its Subsidiaries relating
to the Borrower or any of its Subsidiaries or any of their respective
businesses, other than any such information that is available to the
Administrative Agent, any Lender or the Issuing Lender on a nonconfidential
basis prior to disclosure by the Borrower or any of its Subsidiaries,
provided
that, in
the case of information received from the Borrower or any of its Subsidiaries
after the date hereof, such information is clearly identified at the time of
delivery as confidential. Any Person required to maintain the confidentiality
of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
94
11.18
Waivers
of Jury Trial; Waiver of Consequential Damages.
EACH
PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY
OTHER
CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER
BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PERSON
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT,
IN
THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO
ENTER INTO THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER THINGS,
THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.19 Patriot
Act Notice.
Each
Lender and the Administrative Agent (for itself and not on behalf of any other
party) hereby notifies the Borrower that, pursuant to the requirements of the
Patriot Act, it is required to obtain, verify and record information that
identifies the Borrower and the other Credit Parties, which information includes
the name and address of the Borrower and the other Credit Parties and other
information that will allow such Lender or the Administrative Agent, as
applicable, to identify the Borrower and the other Credit parties in accordance
with the Patriot Act.
95
11.20 Continuing
Agreement.
This
Credit Agreement shall be a continuing agreement and shall remain in full force
and effect until all Loans, LOC Obligations, interest, fees and other Credit
Party Obligations (other than those obligations that expressly survive the
termination of this Credit Agreement) have been paid in full and all Commitments
and Letters of Credit have been terminated. Upon termination, the Credit Parties
shall have no further obligations (other than those obligations that expressly
survive the termination of this Credit Agreement) under the Credit Documents
and
the Administrative Agent shall, at the request and expense of the Borrower,
deliver all the Collateral in its possession to the Borrower and release all
Liens on the Collateral; provided
that
should any payment, in whole or in part, of the Credit Party Obligations be
rescinded or otherwise required to be restored or returned by the Administrative
Agent or any Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall automatically
be
reinstated and all Liens of the Administrative Agent shall reattach to the
Collateral and all amounts required to be restored or returned and all costs
and
expenses incurred by the Administrative Agent or any Lender in connection
therewith shall be deemed included as part of the Credit Party
Obligations.
[Signature
Page to Follow]
96
CREDIT
AGREEMENT
IN
WITNESS WHEREOF,
each of
the parties hereto has caused a counterpart of this Credit Agreement to be
duly
executed and delivered as of the date first above written.
BORROWER: |
a Delaware corporation
|
|
|
|
|
By: | /s/ Xxxx X. Xxxxxxxx | |
Xxxx
X. Xxxxxxxx
President
|
||
GUARANTORS:
0000
XXXXXXXX RESTAURANT CORP.,
a
New York corporation
BENIHANA
BETHESDA CORP.,
a
New York corporation
BENIHANA
BRICKELL STATION CORP.,
a
Delaware corporation
BENIHANA
BROOMFIELD CORP.,
a
Delaware corporation
BENIHANA
CARLSBAD CORP.,
a
Delaware corporation
BENIHANA
XXXXXXXX CORP.,
a
Delaware corporation
BENIHANA
CHICAGO CORP.,
a
Delaware corporation
BENIHANA
ENCINO CORP.,
a
California corporation
BENIHANA
INTERNATIONAL CORP.,
a
Delaware corporation
BENIHANA
LINCOLN ROAD CORP.,
a
Florida corporation
BENIHANA
LOMBARD CORP.,
an
Illinois corporation
BENIHANA
MARINA CORP.,
a
California corporation
BENIHANA
MONTEREY CORPORATION,
a
Delaware corporation
BENIHANA
NATIONAL CORP.,
a
Delaware corporation
BENIHANA
NATIONAL OF FLORIDA CORP.,
a
Delaware corporation
BENIHANA
NEW YORK CORP.,
a
Delaware corporation
BENIHANA
ONTARIO CORP.,
a
Delaware corporation
BENIHANA
ORLANDO CORP.,
a
Delaware corporation
|
[signature
pages continue]
BENIHANA
PLYMOUTH MEETING CORP.,
a
Delaware corporation
BENIHANA
OF XXXXXX HILLS CORP.,
a
Delaware corporation
BENIHANA
SCHAUMBURG CORP.,
a
Delaware corporation
BENIHANA
SUNRISE CORPORATION,
a
Delaware corporation
BENIHANA
TUCSON CORP.,
a
Delaware corporation
BENIHANA
WESTBURY CORP.,
a
Delaware corporation
BENIHANA
WESTWOOD CORP.,
a
Delaware corporation
BENIHANA
WHEELING CORP.,
a
Delaware corporation
BIG
SPLASH XXXXXXX CORP.,
a
Delaware corporation
HARU
AMSTERDAM AVENUE CORP.,
a
New York corporation
HARU
FOOD CORP.,
a
New York corporation
HARU
GRAMERCY PARK CORP.,
a
New York corporation
HARU
HOLDING CORP.,
a
Delaware corporation
HARU
PARK AVENUE CORP.,
a
Delaware corporation
HARU
PHILADELPHIA CORP.,
a
Delaware corporation
HARU
PRUDENTIAL CORP.,
a
Delaware corporation
HARU
THIRD AVENUE CORP.,
a
New York corporation
HARU
TOO, INC.,
a
New York corporation
HARU
WALL STREET CORP.,
a
Delaware corporation
XXXXXXX’X
INTERNATIONAL INC.,
a
Delaware corporation
NOODLE
TIME, INC.,
a
Florida corporation
RA
AHWATUKEE RESTAURANT CORP.,
a
Delaware corporation
RA
FASHION VALLEY CORP.,
a
Delaware corporation
XX
XXXXXXXX RESTAURANT CORP.,
a
Delaware corporation
RA
SCOTTSDALE CORP.,
a
Delaware corporation
|
[signature
pages continue]
RA
TEMPE CORP.,
a
Delaware corporation
RA
SUSHI BALTIMORE CORP.,
a
Delaware corporation
RA
SUSHI CHICAGO CORP.,
a
Delaware corporation
RA
SUSHI CORONA CORP.,
a
Delaware corporation
RA
SUSHI DENVER CORP.,
a
Delaware corporation
RA
SUSHI GLENVIEW CORP.,
a
Delaware corporation
RA
SUSHI HUNTINGTON BEACH CORP.,
a
Delaware corporation
RA
SUSHI HOLDING CORP.,
a
Delaware corporation
RA
SUSHI LAS VEGAS CORP.,
a
Nevada corporation
RA
SUSHI LOMBARD CORP.,
a
Delaware corporation
RA
SUSHI MESA CORP.,
a
Delaware corporation
RA
SUSHI PALM BEACH GARDENS CORP.,
a
Delaware corporation
RA
SUSHI SAN DIEGO CORP.,
a
Delaware corporation
RA
SUSHI SOUTH MIAMI CORP.,
a
Delaware corporation
RA
SUSHI TORRANCE CORP.,
a
Delaware corporation
RA
SUSHI TUCSON CORP.,
a
Delaware corporation
RA
SUSHI TUSTIN CORP.,
a
Delaware corporation
RA
SUSHI WESTWOOD CORP.,
a
Delaware corporation
RUDY’S
RESTAURANT GROUP, INC.,
a
Nevada corporation
TEPPAN
RESTAURANTS LTD.,
an
Oregon corporation
THE
SAMURAI, INC.,
a
New York corporation
|
|
|
|
By: | /s/ Xxxx X. Xxxxxxxx | |
|
|
|
Name:
Xxxx X. Xxxxxxxx
Title:
President of each of the foregoing
Guarantors
|
[signature
pages continue]
BENIHANA
LAS COLINAS CORP.,
a
Texas corporation
BENIHANA
OF TEXAS, INC.,
a
Texas corporation
BENIHANA
WOODLANDS CORP.,
a
Texas corporation
XX
XXXXXXX CORP.,
a
Texas corporation
RA
SUSHI CITY CENTER CORP.,
a
Texas corporation
RA
SUSHI PLANO CORP.,
a
Texas corporation
|
|
|
|
By: | /s/ Xxxx X. Xxxxxxxx | |
|
||
Name: Xxxx
X. Xxxxxxxx
Title: Authorized
Agent of each of the
foregoing Guarantors
|
CREDIT
AGREEMENT
LENDERS: | WACHOVIA BANK, NATIONAL ASSOCIATION, | |
individually
in its capacity as a Lender
and
in its capacity as Agent
|
||
By: | ||
Name:
|
||
Title:
|