Exhibit 10
EXECUTION COPY
$500,000,000
CREDIT AGREEMENT
dated as of
August 16, 2005
among
XXXXXX RESTAURANTS, INC.,
as Borrower
The Banks Listed Herein,
BANK OF AMERICA, N.A., as Syndication Agent,
SUNTRUST BANK, as Syndication Agent,
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Documentation Agent,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
---------------------------------------------------
WACHOVIA CAPITAL MARKETS, LLC,
as Lead Arranger and Book Runner
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS..............................................1
SECTION 1.01 Definitions..................................................1
SECTION 1.02 Accounting Terms and Determinations.........................16
SECTION 1.03 Terms Generally.............................................16
SECTION 1.04 Use of Defined Terms........................................17
SECTION 1.05 Exchange Rates; Currency Equivalents........................17
SECTION 1.06 Alternative Currencies......................................17
SECTION 1.07 Redenomination of Certain Alternative Currencies............18
ARTICLE II THE CREDITS.............................................18
SECTION 2.01 Commitments to Make Loans...................................18
SECTION 2.02 Method of Borrowing Syndicated Loans........................19
SECTION 2.03 Money Market Loans..........................................21
SECTION 2.04 Continuation and Conversion Elections.......................24
SECTION 2.05 Notes.......................................................25
SECTION 2.06 Maturity of Loans...........................................25
SECTION 2.07 Interest Rates..............................................26
SECTION 2.08 Fees........................................................28
SECTION 2.09 Optional Termination or Reduction of Commitments............29
SECTION 2.10 Termination of Commitments..................................29
SECTION 2.11 Optional Prepayments........................................29
SECTION 2.12 Mandatory Prepayments.......................................30
SECTION 2.13 General Provisions as to Payments...........................30
SECTION 2.14 Computation of Interest and Fees............................33
SECTION 2.15 Existing Credit Agreement and Existing Notes................34
SECTION 2.16 Letter of Credit Facility...................................34
SECTION 2.17 Increase in Commitments.....................................41
ARTICLE III CONDITIONS TO BORROWINGS................................42
SECTION 3.01 Conditions to Effectiveness.................................42
SECTION 3.02 Conditions to All Borrowings................................43
SECTION 3.03 Determinations Under Section 3.01...........................44
ARTICLE IV REPRESENTATIONS AND WARRANTIES..........................44
SECTION 4.01 Organization; Power; Qualification..........................44
SECTION 4.02 Subsidiaries and Capitalization.............................45
SECTION 4.03 Authorization of Agreement, Loan Documents and Borrowing....45
SECTION 4.04 Compliance of Agreement, Loan Documents and Borrowing
with Laws, Etc..............................................45
SECTION 4.05 Compliance with Law; Governmental Approvals.................46
SECTION 4.06 Tax Returns and Payments....................................46
SECTION 4.07 Intellectual Property Matters...............................46
SECTION 4.08 Environmental Matters.......................................46
SECTION 4.09 ERISA.......................................................47
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SECTION 4.10 Margin Stock................................................47
SECTION 4.11 Government Regulation.......................................47
SECTION 4.12 Financial Statements........................................47
SECTION 4.13 Title to Properties.........................................48
SECTION 4.14 Debt and Liens..............................................48
SECTION 4.15 Litigation..................................................48
SECTION 4.16 Absence of Defaults.........................................48
SECTION 4.17 Accuracy and Completeness of Information....................49
SECTION 4.18 Insolvency..................................................49
SECTION 4.19 Insurance...................................................49
ARTICLE V COVENANTS...............................................49
SECTION 5.01 Financial Information and Notices...........................49
SECTION 5.02 Preservation of Corporate Existence and Related Matters.....52
SECTION 5.03 Maintenance of Property.....................................52
SECTION 5.04 Insurance...................................................52
SECTION 5.05 Accounting Methods and Financial Records....................53
SECTION 5.06 Payment and Performance of Obligations......................53
SECTION 5.07 Compliance with Laws, Approvals and Agreements..............53
SECTION 5.08 Compliance with ERISA.......................................53
SECTION 5.09 Conduct of Business.........................................53
SECTION 5.10 Loans or Advances...........................................53
SECTION 5.11 Investments.................................................53
SECTION 5.12 Visits and Inspections......................................54
SECTION 5.13 Limitations on Liens........................................54
SECTION 5.14 Limitations on Mergers, Liquidations and Sales of Assets....55
SECTION 5.15 Certain Accounting Changes..................................56
SECTION 5.16 Change in Fiscal Year.......................................56
SECTION 5.17 Restrictive Agreements......................................56
SECTION 5.18 Acquisitions................................................56
SECTION 5.19 Ratio of Consolidated Total Debt to Consolidated
Total Capitalization........................................56
SECTION 5.20 Limitation on Priority Debt.................................56
ARTICLE VI DEFAULTS................................................56
SECTION 6.01 Events of Default...........................................56
ARTICLE VII THE ADMINISTRATIVE AGENT................................59
SECTION 7.01 Appointment, Powers and Immunities..........................59
SECTION 7.02 Reliance by Administrative Agent............................60
SECTION 7.03 Defaults....................................................60
SECTION 7.04 Rights of Administrative Agent and its Affiliates as a
Bank........................................................60
SECTION 7.05 Indemnification.............................................60
SECTION 7.06 CONSEQUENTIAL DAMAGES.......................................61
SECTION 7.07 Payee of Note Treated as Owner..............................61
SECTION 7.08 Non-Reliance on Administrative Agent and Other Banks........61
SECTION 7.09 Failure to Act..............................................61
SECTION 7.10 Resignation of Administrative Agent.........................62
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SECTION 7.11 Other Agents................................................62
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION...................62
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair....62
SECTION 8.02 Illegality..................................................63
SECTION 8.03 Increased Cost and Reduced Return...........................64
SECTION 8.04 Base Rate Loans Substituted for Affected Eurocurrency
Loans.......................................................65
SECTION 8.05 Compensation................................................65
SECTION 8.06 Replacement of Banks........................................66
ARTICLE IX MISCELLANEOUS...........................................66
SECTION 9.01 Notices.....................................................66
SECTION 9.02 No Waivers..................................................68
SECTION 9.03 Expenses; Documentary Taxes; Indemnification................68
SECTION 9.04 Setoffs; Sharing of Set-Offs................................69
SECTION 9.05 Amendments and Waivers......................................71
SECTION 9.06 Independence of Covenants...................................71
SECTION 9.07 Successors and Assigns......................................72
SECTION 9.08 Confidentiality.............................................75
SECTION 9.09 Representation by Banks.....................................75
SECTION 9.10 Obligations Several.........................................75
SECTION 9.11 Survival of Certain Obligations.............................76
SECTION 9.12 Governing Law...............................................76
SECTION 9.13 Severability................................................76
SECTION 9.14 Interest....................................................76
SECTION 9.15 Interpretation..............................................77
SECTION 9.16 Jurisdiction, Etc.; Waiver of Jury Trial....................77
SECTION 9.17 Counterparts................................................78
SECTION 9.18 Source of Funds - ERISA.....................................78
SECTION 9.19 Judgment Currency...........................................78
SECTION 9.20 FIN 46......................................................78
SECTION 9.21 USA Patriot Act.............................................78
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Schedule 1.01 Commitments
Schedule 4.02 Material Subsidiaries
Schedule 4.08 Environmental Matters
Schedule 4.09 ERISA Disclosure
Schedule 4.14 Description of Debt and Liens
Schedule 4.15 Litigation
EXHIBIT A Form of Dollar Note
EXHIBIT B Form of Alternative Currency Note
EXHIBIT C Form of Money Market Dollar Note
EXHIBIT D Form of Money Market Alternative Currency Note
EXHIBIT E Form of Opinion of Counsel for the Borrower
EXHIBIT F Form of Money Market Quote Request
EXHIBIT G Form of Money Market Quote
EXHIBIT H Form of Closing Certificate
EXHIBIT I Form of Secretary's Certificate
EXHIBIT J Form of Officer's Compliance Certificate
EXHIBIT K Form of Assignment and Assumption
EXHIBIT L Form of Notice of Borrowing
EXHIBIT M Form of Notice of Continuation or Conversion
EXHIBIT N Form of Notice in Respect of Issuance of Letters of Credit
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of August 16, 2005 among XXXXXX RESTAURANTS,
INC., a Florida corporation, the BANKS party hereto, and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative Agent and as Issuing Bank.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Definitions. The terms as defined in this Section 1.01 shall,
for all purposes of this Agreement and any amendment hereto (except as herein
otherwise expressly provided or unless the context otherwise requires), have the
meanings set forth herein:
"Acquisition" means any transaction pursuant to which the Borrower or any
of its Subsidiaries, directly or indirectly, in its own name or by or through a
nominee or an agent (a) acquires equity Securities (or warrants, options or
other rights to acquire such Securities) of any Person other than the Borrower
or any Person which is not then a Subsidiary of the Borrower, pursuant to a
solicitation of tenders therefor, or in one or more negotiated block, market or
other transactions not involving a tender offer, or a combination of any of the
foregoing, or (b) makes any Person a Subsidiary of the Borrower, or causes any
Person other than a Subsidiary to be merged into the Borrower or any of its
Subsidiaries, in any case pursuant to a merger, purchase of assets or any
reorganization providing for the delivery or issuance to the holders of such
Person's then outstanding Securities, in exchange for such Securities, of cash
or Securities of the Borrower or any of its Subsidiaries, or a combination
thereof, or (c) purchases all or substantially all of the business or assets of
any Person.
"Adjusted IBOR Rate" has the meaning set forth in Section 2.07(d).
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.07(c).
"Administrative Agent" means Wachovia Bank, National Association, a
national banking association organized under the laws of the United States of
America, in its capacity as Administrative Agent for the Banks and Issuing Bank
hereunder, and its successors and permitted assigns in such capacity.
"Administrative Agent's Office" means, with respect to any currency, the
Administrative Agent's address and, as appropriate, account as set forth in
Section 9.01 with respect to such currency or such other address or account with
respect to such currency as the Administrative Agent may from time to time
notify the Borrower, the Banks and the Issuing Bank.
"Administrative Agent's Letter Agreement" means, collectively, those
certain letter agreements, each dated as of July 13, 2005, among the Borrower,
the Administrative Agent and the Lead Arranger relating to the structure of the
Loans, and certain fees from time to time payable by the Borrower to the
Administrative Agent and the Lead Arranger, together with all amendments and
modifications thereto.
"Administrative Questionnaire" means an administrative questionnaire in the
form supplied by the Administrative Agent to be delivered by a Bank to the
Administrative Agent.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Alternative Currency" means each lawful currency (other than Dollars) that
is freely available and freely transferable and convertible into Dollars and
that is approved by all the Banks and the Issuing Bank in accordance with
Section 1.06.
"Alternative Currency Equivalent" means, at any time, with respect to any
amount denominated in Dollars, the equivalent amount thereof in the applicable
Alternative Currency as determined by the Administrative Agent at such time on
the basis of the Spot Rate (determined in respect of the most recent Revaluation
Date) for the purchase of such Alternative Currency with Dollars.
"Alternative Currency Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit B hereto, evidencing the obligation of the
Borrower to repay the Syndicated Loans denominated in Alternative Currencies,
together with all amendments, consolidations, modifications, renewals and
supplements thereto.
"Alternative Currency Sublimit" means an amount equal to the lesser of (a)
the Total Commitments and (b) $100,000,000. The Alternative Currency Sublimit is
part of, and not in addition to, the Total Commitments.
"Applicable Currency" means Dollars or an Alternative Currency, as
applicable.
"Applicable Facility Fee Rate" has the meaning set forth in Section
2.08(a).
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all Governmental Authorities and all
orders and decrees of all courts and arbitrators.
"Applicable Margin" has the meaning set forth in Section 2.07(a).
"Applicable Time" means, with respect to any borrowings and payments in
Alternative Currencies, the local times in the place of settlement for such
Alternative Currencies as may be determined by the Administrative Agent to be
necessary for timely settlement on the relevant date in accordance with normal
banking procedures in the place of payment.
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"Applicable Utilization Fee Rate" has the meaning set forth in Section
2.08(b).
"Approved Fund" means any Fund that is administered or managed by (a) a
Bank, (b) an Affiliate of a Bank or (c) an entity or an Affiliate of an entity
that administers or manages a Bank.
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Assumption" means an Assignment and Assumption executed in
accordance with Section 9.07(c) in the form attached hereto as Exhibit K.
"Backup Letters of Credit" has the meaning set forth in Section 2.16(j).
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, or (ii) one-half of
one percent above the Federal Funds Rate. For purposes of determining the Base
Rate for any day, changes in the Prime Rate or the Federal Funds Rate shall be
effective on the date of each such change.
"Base Rate Loan" means a Loan denominated in Dollars that bears or is to
bear interest at a rate based upon the Base Rate, and is to be made as a Base
Rate Loan pursuant to the applicable Notice of Borrowing, Notice of Continuation
or Conversion, Sections 2.01 and 2.02(f), or Article VIII, as applicable.
"Borrower" means Xxxxxx Restaurants, Inc., a Florida corporation, and its
successors and permitted assigns.
"Borrowing" means any issuance of a Letter of Credit in accordance with
Section 2.16 and any borrowing hereunder consisting of Loans made to the
Borrower (i) at the same time by all of the Banks, in the case of a Syndicated
Borrowing, (ii) separately by one or more Banks, in the case of a Money Market
Borrowing, and (iii) in the same currency and having the same Interest Period,
as applicable, in each case pursuant to Article II. A Borrowing of Loans is a
"Money Market Borrowing" if such Loans are made pursuant to Section 2.03 or a
"Syndicated Borrowing" if such Loans are made pursuant to Section 2.01. A
Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate Loans or a
"Eurocurrency Borrowing" if such Loans are Eurocurrency Loans.
"Business Day" means any day other than a Saturday, Sunday or other day on
which commercial banks are authorized to close under the Applicable Laws of, or
are in fact closed in, the state where the Administrative Agent's Office with
respect to Obligations denominated in Dollars is located and:
(a) if such day relates to any interest rate settings as to a Eurocurrency
Loan denominated in Dollars, any fundings, disbursements, settlements and
payments in Dollars in respect of any such Eurocurrency Loan, or any other
dealings in Dollars to be carried out pursuant to this Agreement in respect of
any such Eurocurrency Loan, means any such day on which dealings in
3
deposits in Dollars are conducted by and between banks in the London interbank
eurodollar market;
(b) if such day relates to any interest rate settings as to a Eurocurrency
Loan denominated in an Alternative Currency, means any such day on which
dealings in deposits in the relevant currency are conducted by and between banks
in the London or other applicable offshore interbank market for such currency;
and
(c) if such day relates to any fundings, disbursements, settlements and
payments in an Alternative Currency in respect of a Eurocurrency Loan
denominated in an Alternative Currency, or any other dealings in any Alternative
Currency to be carried out pursuant to this Agreement in respect of any such
Eurocurrency Loan (other than any interest rate settings), means any such day on
which banks are open for foreign exchange business in the principal financial
center of the country of such currency.
"Capital Lease" means a lease of any property (whether real, personal or
mixed) that should, in accordance with GAAP, appear on a Consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as a liability in
respect of such lease.
"Capital Stock" means any nonredeemable capital stock of the Borrower or
any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"Cash Collateral" has the meaning set forth in Section 2.16(j).
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C. ss.9601 et seq. and its implementing regulations and
amendments.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(d).
"Closing Date" means August 16, 2005.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code, and all rules and regulations from time to time
promulgated thereunder, whether temporary or final. Any reference to any
provision of the Code shall also be deemed to be a reference to any successor
provision or provisions thereof.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on Schedule 1.01, or (ii) as to any Bank which
enters into an Assignment and Assumption (whether as transferor Bank or as
Assignee thereunder), the amount of such Bank's Commitment after giving effect
to such Assignment and Assumption, in each case as such amount may be reduced
from time to time pursuant to Section 2.09 or increased from time to time
pursuant to Section 2.17. The initial aggregate Commitment is $500,000,000.00.
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries or any other
Person, such statements or
4
items on a consolidated basis in accordance with applicable principles of
consolidation under GAAP.
"Consolidated Capitalized Lease Obligations" means, at any date of
determination, the aggregate obligation of the Borrower and its Consolidated
Subsidiaries under Capital Leases.
"Consolidated Operating Lease Obligations" means, for any period of
determination, the aggregate lease and rental commitments, in the minimum amount
required by the applicable lease or rental agreements, of the Borrower and its
Consolidated Subsidiaries, on a Consolidated basis, which are not classified as
Consolidated Capitalized Lease Obligations hereunder.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be Consolidated with those
of the Borrower in its Consolidated financial statements as of such date.
"Consolidated Tangible Net Worth" means at any date Stockholders' Equity
minus the Intangible Assets of the Company and its Subsidiaries on that date.
"Consolidated Total Capitalization" means at any date the sum of (a)
Stockholders' Equity, plus (b) Consolidated Total Debt.
"Consolidated Total Debt" means, with respect to the Borrower and its
Consolidated Subsidiaries at any date of determination, the sum of the following
calculated on a Consolidated basis in accordance with GAAP: (a) all liabilities,
obligations and indebtedness of such Person for borrowed money including but not
limited to obligations evidenced by bonds, debentures, notes or other similar
instruments, (b) all obligations of such Person to pay the deferred purchase
price of property or services except trade payables arising in the ordinary
course of business, (c) all Consolidated Capitalized Lease Obligations of such
Person, (d) all liabilities, obligations and indebtedness of any other Person
secured by a Lien on any asset of the Borrower or any of its Consolidated
Subsidiaries, (e) banker's acceptances issued for the account of such Person,
(f) the product of (i) 6.25 multiplied by (ii) the Consolidated Operating Lease
Obligations of such Person for the four Fiscal Quarters immediately preceding
such date (including the Fiscal Quarter ending on such date), (g) all net
obligations with respect to Hedging Agreements and (h) to the extent not
included in clauses (a) through (g), all guarantees and contingent obligations
of such Person in respect of any Consolidated Total Debt of any other Person,
provided that the amount of any such guarantees and contingent obligations shall
not, in any event, exceed the amount which, in light of the facts and
circumstances, represents the amount that can reasonably be expected to become
an actual or matured liability in accordance with GAAP.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Debt Rating" means a public rating by the respective Rating Agencies of
the Borrower's Senior Debt. If any Rating Agency is not providing public ratings
of the Senior Debt, (a) the Administrative Agent with the consent of the
Required Banks may substitute another rating agency of national reputation for
such Rating Agency to provide a public rating of the Senior Debt, which
substituted rating agency shall be a "Rating Agency" within the meaning of the
definition of such term set forth in this Section, or (b) if no other rating
agency of national
5
reputation is providing public ratings of the Senior Debt, the Administrative
Agent may request that the Borrower, at the Borrower's expense, obtain from such
Rating Agency a private credit rating for the Senior Debt, and such private
credit rating shall be such Rating Agency's Debt Rating. Upon receipt of such
request, the Borrower shall use its best efforts to obtain as promptly as
practicable from such Rating Agency (or, if such Rating Agency declines to
provide a private credit rating, from another rating agency of national
reputation approved by the Administrative Agent with the consent of the Required
Banks) a private credit rating for such purpose. If the Borrower does not have
any Senior Debt, the Debt Rating shall be determined on the basis of a credit
rating, made as aforesaid, of the Borrower's obligations under this Agreement
and the Notes. In the event another rating agency of national reputation is
substituted for any Rating Agency, for purposes of determining the Debt Rating
of such substitute Rating Agency, reference shall be made to the public debt
rating levels of such substitute Rating Agency that are most nearly comparable
to the public debt rating levels of the Rating Agency for which such substitute
Rating Agency has been substituted.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of 2%
plus the then highest interest rate (including the Applicable Margin) which may
be applicable to any Loans hereunder (irrespective of whether any such type of
Loans are actually outstanding hereunder).
"DOL" means the United States Department of Labor and any successor Federal
agency having similar powers.
"Dollar Equivalent" means, at any time, (a) with respect to any amount
denominated in Dollars, such amount, and (b) with respect to any amount
denominated in any Alternative Currency, the equivalent amount thereof in
Dollars as determined by the Administrative Agent at such time on the basis of
the Spot Rate (determined in respect of the most recent Revaluation Date) for
the purchase of Dollars with such Alternative Currency.
"Dollar Notes" means the promissory notes of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to repay
the Syndicated Loans denominated in Dollars, together with all amendments,
consolidations, modifications, renewals and supplements thereto.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"EMU Legislation" means the legislative measures of the European Council
for the introduction of, changeover to or operation of a single or unified
European currency (whether known as the "euro" or otherwise).
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise
6
relating to the manufacture, processing, distribution, use, treatment, storage,
disposal, transport or handling of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous substances or
wastes or the clean-up or other remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law, and all rules and regulations
from time to time promulgated thereunder. Any reference to any provision of
ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro" and "(euro)" mean the lawful currency of the Participating Member
States introduced in accordance with the EMU Legislation.
"Eurocurrency Loan" means a Syndicated Loan denominated in Dollars or an
Alternative Currency that bears or is to bear interest at a rate based upon the
Adjusted London Interbank Offered Rate if denominated in Dollars and the
Adjusted IBOR Rate if denominated in an Alternative Currency, and to be made as
a Eurocurrency Loan pursuant to a Notice of Borrowing or continued as or
converted into a Eurocurrency Loan pursuant to a Notice of Continuation or
Conversion.
"Eurocurrency Reserve Percentage" has the meaning set forth in Section
2.07(c).
"Event of Default" has the meaning set forth in Section 6.01.
"Existing Credit Agreement" means that certain Credit Agreement dated as of
October 17, 2003, among the Borrower, the lenders party thereto, and Wachovia
Bank, National Association, as administrative agent, as the same has been
amended or modified from time to time.
"Extended Letter of Credit" has the meaning set forth in Section
2.16(b)(iii).
"Foreign Bank" has the meaning set forth in Section 2.13(d).
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business Day next
succeeding such day, provided that (i) if the day for which such rate is to be
determined 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 (ii) if such rate is not so
published for any day, the Federal Funds Rate for such day shall be the average
rate charged to Wachovia on such day on such transactions as determined by the
Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"Fronting Fee" has the meaning set forth in Section 2.16(h).
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"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing. The term
"Governmental Authority" shall include, without limitation, the IRS, the DOL and
any governmental authority, central bank or comparable agency charged with the
interpretation or administration of Applicable Laws.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. ss.6901 et seq. and its implementing regulations and amendments, or in
any applicable state or local law or regulation, (b) any "hazardous substance,"
"pollutant" or "contaminant," as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including crude oil or any fraction thereof, (d) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation and (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each such
Act, statute or regulation may be amended from time to time.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrower (including, without
limitation, swap agreements as defined in 11 U.S.C. ss. 101) and any confirming
letter executed pursuant to such hedging agreement, all as amended or
supplemented from time to time.
"IBOR" has the meaning set forth in Section 2.07(d).
"Intangible Assets" means assets of the Borrower and its Consolidated
Subsidiaries that are considered to be intangible assets under GAAP, including
customer lists, goodwill, computer software, copyrights, trade names,
trademarks, patents, franchises, licenses, unamortized deferred charges,
unamortized debt discount and capitalized research and development costs.
"Interest Period" means: (1) with respect to each Eurocurrency Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Business Day shall be extended to the
next succeeding Business Day unless such Business Day falls in another
calendar month, in which case such Interest Period shall end on the next
preceding Business Day;
8
(b) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the appropriate subsequent calendar month) shall, subject to clause
(c) below, end on the last Business Day of the appropriate subsequent
calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Money Market Borrowing, the period commencing on the
date of such Borrowing and ending on the Stated Maturity Date or such other date
or dates as may be specified in the applicable Money Market Quote Request;
provided that:
(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Business Day shall be extended to the
next succeeding Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, guarantee or assumption of any obligation of such
Person or otherwise.
"Investment Policy" means the written investment policy of the Borrower, as
approved by the Chief Financial Officer of the Borrower and in effect from time
to time, a copy of which (together with any changes thereto) shall be delivered
by the Borrower to the Administrative Agent.
"IRS" means the United States Internal Revenue Service and any successor
Federal agency having similar powers.
"Issuing Bank" means Wachovia, in its capacity as issuer of Letters of
Credit hereunder.
"Lead Arranger" means Wachovia Capital Markets, LLC and its successors.
"Lending Office" means, as to each Bank, its office located at its address
set forth on the Administrative Questionnaire as completed and actually
delivered by such Bank to the Administrative Agent or such other office as such
Bank may hereafter designate as its Lending Office by notice to the Borrower and
the Administrative Agent.
"Letter of Credit" means a standby letter of credit issued by the Issuing
Bank for the account of the Borrower pursuant to Section 2.16.
"Letter of Credit Application Agreement" shall mean, with respect to a
Letter of Credit, such form of application therefor (whether in a single or
several documents) as the Issuing Bank may employ in the ordinary course of
business for its own account, whether or not providing for collateral security,
with such modifications thereto as may by agreed upon by the Issuing Bank and
the Borrower and are not materially adverse to the interests of the Banks;
provided, however,
9
that in the event of any conflict between the terms of any Letter of Credit
Application Agreement and this Agreement, the terms of this Agreement shall
control.
"Letter of Credit Fees" has the meaning set forth in Section 2.16(h).
"Letter of Credit Obligations" means, at any time, the sum of (a) the
Reimbursement Obligations at such time, (b) the aggregate maximum Dollar
Equivalent amount available for drawing under the Letters of Credit at such time
and (c) the aggregate maximum Dollar Equivalent amount available for drawing
under Letters of Credit the issuance of which has been authorized by the Issuing
Bank but which have not yet been issued.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset.
"Loan" means a Syndicated Loan or a Money Market Loan and "Loans" means
Syndicated Loans or Money Market Loans, or any or all of them, as the context
shall require.
"Loan Documents" means this Agreement, the Notes, all Letter of Credit
Application Agreements, all Letters of Credit, any other document evidencing,
relating to or securing the Loans or the Letters of Credit, and any other
document or instrument delivered from time to time in connection with this
Agreement, the Notes, the Letter of Credit Application Agreements or the Loans
or the Letters of Credit, as such documents and instruments may be amended or
supplemented from time to time; provided, however, that in no event shall such
term include Hedging Agreements.
"London Interbank Offered Rate" has the meaning set forth in Section
2.07(c).
"Margin Stock" means "margin stock" as defined in Regulation T, U or X of
the Board of Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued thereunder.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent, the Issuing Bank or the Banks under the Loan Documents, or
the ability of the Borrower to perform its obligations under the Loan Documents
to which it is a party, as applicable, or (c) the legality, validity or
enforceability of any Loan Document.
"Material Subsidiary" means, at any time, based on the Borrower's
Consolidated balance sheet for its most recently ended Fiscal Quarter:
10
(a) any Subsidiary, whether now owned or hereafter formed or acquired,
whose total assets at any time equal or exceed ten percent (10%) of the total
assets of the Borrower and its Subsidiaries as shown on the Borrower's
Consolidated balance sheet for its most recent Fiscal Quarter (any such
Subsidiary being referred to in this definition as a "First Tier Subsidiary"),
and
(b) if the aggregate total revenues and the aggregate total assets,
respectively, of all First Tier Subsidiaries shall not equal or exceed
seventy-five percent (75%) of the aggregate total revenues, or of the aggregate
total assets, respectively, of the Borrower and its Subsidiaries, then such
additional Subsidiaries (each a "Second Tier Subsidiary") as shall be required
so that the aggregate total revenues and the aggregate total assets,
respectively, of all First Tier Subsidiaries and Second Tier Subsidiaries shall
equal or exceed (i) seventy-five percent (75%) of the total revenues of the
Borrower and its Subsidiaries and (ii) seventy-five percent (75%) of the total
assets of the Borrower and its Subsidiaries, each as shown on such Consolidated
balance sheet; provided, that the determination of whether a Second Tier
Subsidiary shall be a Material Subsidiary shall be based upon the percentage of
the aggregate total assets of the Borrower and its Subsidiaries represented by
the total assets of such Second Tier Subsidiary, with Second Tier Subsidiaries
with the highest such percentage first being considered as Material
Subsidiaries.
"Money Market Alternative Currency Notes" means the promissory notes of the
Borrower, substantially in the form of Exhibit D hereto, evidencing the
obligation of the Borrower to repay the Money Market Loans denominated in an
Alternative Currency, together with all amendments, consolidations,
modifications, renewals and supplements thereto.
"Money Market Borrowing Date" has the meaning specified in Section
2.03(b)(ii).
"Money Market Dollar Notes" means the promissory notes of the Borrower,
substantially in the form of Exhibit C hereto, evidencing the obligation of the
Borrower to repay the Money Market Loans denominated in Dollars, together with
all amendments, consolidations, modifications, renewals and supplements thereto.
"Money Market Loan" means a Loan made pursuant to the terms and conditions
set forth in Section 2.03 and that bears or is to bear interest at a Money
Market Rate.
"Money Market Notes" means the Money Market Dollar Notes and the Money
Market Alternative Currency Notes, and "Money Market Note" means any one of such
Money Market Notes.
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03(c).
"Money Market Quote Request" has the meaning set forth in Section 2.03(b).
"Money Market Rate" has the meaning set forth in Section 2.03(c)(ii)(C).
"Moody's" means Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"New Lending Office" has the meaning set forth in Section 2.13(d).
11
"Note" means a Syndicated Loan Note or a Money Market Note and "Notes"
means Syndicated Loan Notes or Money Market Notes, or any or all of them, as the
context shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Notice of Continuation or Conversion" has the meaning set forth in Section
2.04.
"Officer's Compliance Certificate" has the meaning set forth in Section
5.01(b).
"Outstanding Amount" means (i) with respect to Loans on any date, the
aggregate outstanding principal Dollar Equivalent amount thereof after giving
effect to any borrowings and prepayments or repayments of any Loans occurring on
such date, and (ii) with respect to Letter of Credit Obligations on any date,
the Dollar Equivalent amount of such Letter of Credit Obligations on such date
after giving effect to any extensions of Letters of Credit occurring on such
date and any other changes in the aggregate amount of the Letter of Credit
Obligations as of such date, including as a result of any reimbursements of
outstanding unpaid drawings under Letters of Credit or any reductions in the
maximum amount available for drawing under Letters of Credit taking effect on
such date.
"Overnight Rate" means, for any day, (a) with respect to any amount
denominated in Dollars, the Federal Funds Rate and (b) with respect to any
amount denominated in an Alternative Currency, the rate of interest per annum at
which overnight deposits in the applicable Alternative Currency, in an amount
approximately equal to the amount with respect to which such rate is being
determined, would be offered for such day by a branch or Affiliate of Wachovia
located in the applicable interbank market for such currency to major banks in
such interbank market.
"Participant" has the meaning set forth in Section 9.07(b).
"Participation Fee" has the meaning set forth in Section 2.16(h).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means any Acquisition (a) which is of a Person
engaged in the same, similar or complementary line or lines of business as the
Borrower or any Consolidated Subsidiaries or that allows the Borrower to achieve
vertical integration, and (b) which has been approved by the Board of Directors
of the Person to be acquired in connection with such Acquisition.
"Permitted Investments" means the aggregate amount of Investments made by
the Borrower and its Consolidated Subsidiaries pursuant to Section 5.11(iii).
"Permitted Loans and Advances" means the aggregate amount of loans and
advances made by the Borrower and its Consolidated Subsidiaries pursuant to
Section 5.10.
"Permitted Transfers" means the aggregate amount of assets sold by the
Borrower and its Subsidiaries pursuant to Section 5.14(a).
12
"Person" means an individual, a corporation, a limited liability company, a
partnership (including without limitation, a joint venture), an unincorporated
association, a trust or any other entity or organization, including, but not
limited to, a government or political subdivision or an agency or
instrumentality thereof.
"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which a member of the Controlled
Group is then making or accruing an obligation to make contributions or has
within the preceding five (5) plan years made contributions.
"Pricing Level" means the Pricing Level corresponding to the applicable
Debt Rating as set forth below:
Pricing Level Debt Rating (S&P/Moody's)
------------- -------------------------
Level I higher than BBB+/Baa1
Level II equal to BBB+/Baa1
Level III equal to BBB/Baa2
Level IV lower than BBB/Baa2 or not rated
In the event that the Debt Ratings issued by S&P and Moody's do not correspond
to the same Pricing Level then the Pricing Level shall be based on the higher of
the two Debt Ratings unless one of the two Debt Ratings is two or more Pricing
Levels lower than the other, in which case the Pricing Level shall be the
Pricing Level immediately above that for the lower of the two Debt Ratings.
Adjustments, if any, in the Pricing Level shall be made by the Administrative
Agent and shall be effective on the fifth (5th) Business Day after the earlier
of (i) receipt by the Administrative Agent of notice of such change in Debt
Rating or (ii) knowledge of the Administrative Agent of such change in Debt
Rating. The Pricing Level as of the Closing Date is Level II.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
"Priority Debt" means (a) any Consolidated Total Debt of the Borrower
secured by any Lien permitted pursuant to clause (m) of Section 5.13, and (b)
any Consolidated Total Debt of any Consolidated Subsidiary; provided, however,
that Priority Debt shall not include (i) any Consolidated Total Debt owed by any
Subsidiary to the Borrower or any Wholly Owned Subsidiary, (ii) any Consolidated
Total Debt incurred to refinance any Consolidated Total Debt of any Subsidiary
outstanding on the Closing Date to the extent the amount of Consolidated Total
Debt so incurred is not in excess of the amount of Consolidated Total Debt
refinanced, (iii) Consolidated Total Debt consisting of that certain
$700,000,000 aggregate indebtedness of GMRI, Inc., a Florida corporation, to
Xxxxxx Realty, Inc., a Maryland corporation, incurred on
13
January 28, 1999, and (iv) any amounts which would otherwise be included in
Consolidated Total Debt in respect of any Subsidiary under clause (f) of the
definition of Consolidated Total Debt set forth in this Section.
"Quarterly Payment Date" means each March 31, June 30, September 30 and
December 31, or, if any such day is not a Business Day, the next succeeding
Business Day.
"Rating Agencies" means Moody's and S&P, and any rating agency substituted
for either of the foregoing pursuant to the provisions set forth in the
definition of the term "Debt Rating."
"Redeemable Preferred Stock" of any Person means any preferred stock issued
by such Person which is at any time prior to the Termination Date either (i)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Register" has the meaning set forth in Section 9.07(f).
"Reimbursement Obligations" means the Dollar Equivalent reimbursement or
repayment obligations of the Borrower to the Issuing Bank pursuant to Section
2.16(e) with respect to Letters of Credit.
"Related Parties" means, with respect to any Person, such Person's
Affiliates and the partners, directors, officers, employees, agents and advisors
of such Person and of such Person's Affiliates.
"Required Banks" means at any time Banks having more than 50% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding more than 50% of the Outstanding Amount.
"Revaluation Date" means each of the following: (a) each date of a
Borrowing of a Loan denominated in an Alternative Currency, (b) each date of a
continuation of a Eurocurrency Loan denominated in an Alternative Currency
pursuant to Section 2.04, (c) each date of an issuance of a Letter of Credit
denominated in an Alternative Currency, and (d) such additional dates as the
Administrative Agent or the Required Banks shall specify.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
"Same Day Funds" means (a) with respect to disbursements and payments in
Dollars, immediately available funds, and (b) with respect to disbursements and
payments in an Alternative Currency, same day or other funds as may be
determined by the Administrative Agent to be customary in the place of
disbursement or payment for the settlement of international banking transactions
in the relevant Alternative Currency.
"SEC" means the Securities and Exchange Commission or any successor agency.
"Secretary's Certificate" has the meaning set forth in Section 3.01(e).
14 1
"Senior Debt" means the long-term, senior, unsecured indebtedness of the
Borrower the creditworthiness of which is not supported through defeasance,
guarantees, credit enhancement or otherwise.
"Special Notice Currency" means any Alternative Currency other than the
currency of a country that is a member of the Organization for Economic
Cooperation and Development at such time located in North America or Europe.
"Spot Rate" means, on any day for any currency, the rate at which such
currency may be exchanged into another currency, as set forth at approximately
11:00 a.m., London time, on such day on the Bloomberg Index WCR page for such
currency, or if such rate does not appear on the Bloomberg Index WCR, on the
Reuters World Currency Page for such currency (and in the event that such rate
does not appear on any Reuters World Currency Page, the Spot Rate shall be
determined by reference to such other publicly available service for displaying
exchange rates as may be selected by the Administrative Agent; provided that if
at the time of any such determination for any reason, no such rate is being
quoted, the Administrative Agent may use any reasonable method it deems
appropriate to determine such rate, and such determination shall be conclusive
absent manifest error).
"Stated Maturity Date" means, with respect to any Money Market Loan, the
Stated Maturity Date therefor specified by the Bank in the applicable Money
Market Quote as set forth in Section 2.03(b)(iii).
"Stockholders' Equity" means, at any time, the shareholders' equity of the
Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such as (A) purchases of treasury
stock, (B) valuation allowances, (C) receivables due from an employee stock
ownership plan, (D) employee stock ownership plan debt guarantees, and (E)
translation adjustments for foreign currency transactions.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
"Syndicated Loan" means a Base Rate Loan or a Eurocurrency Loan made
pursuant to the terms and conditions set forth in Section 2.01 and "Syndicated
Loans" means Base Rate Loans or Eurocurrency Loans, or any or all of them, as
the context shall require.
"Syndicated Loan Notes" means the Dollar Notes and the Alternative Currency
Notes, and "Syndicated Loan Note" means any one of such Syndicated Loan Notes.
"Taxes" has the meaning set forth in Section 2.13(c).
"Termination Date" means August 15, 2010.
15
"Test Amount" means, on any day, an amount equal to 30% of the consolidated
total assets of the Borrower and its Consolidated Subsidiaries (determined in
accordance with GAAP) as of the last day of the Fiscal Quarter most recently
ended prior to such day for which financial statements have been prepared and
delivered to the Banks.
"Total Commitments" means, at any date, an amount equal to the aggregate
amount of the Commitments of all the Banks at such time.
"Total Outstandings" means the aggregate Outstanding Amount.
"Total Unused Commitments" means at any date, an amount equal to the
aggregate amount of the Unused Commitments of all the Banks at such time.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to its Commitment less the sum of (i) the Outstanding Amount of Syndicated
Loans by such Bank plus (ii) such Bank's pro rata share (based upon its
percentage of Total Commitments) of the Letter of Credit Obligations.
"Wachovia" means Wachovia Bank, National Association, a national banking
association and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Borrower.
SECTION 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent (except for changes
concurred in by the Borrower's independent public accountants or otherwise
required by a change in GAAP) with the most recent audited Consolidated
financial statements of the Borrower and its Consolidated Subsidiaries delivered
to the Banks, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in determining
compliance with any of the provisions of this Agreement or any of the other Loan
Documents: (i) the Borrower shall have objected to determining such compliance
on such basis at the time of delivery of such financial statements, or (ii) the
Required Banks shall so object in writing within thirty (30) days after the
delivery of such financial statements, in either of which events such
calculations shall be made on a basis consistent with those used in the
preparation of the latest financial statements as to which such objection shall
not have been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01(a) hereof, shall mean the
financial statements referred to in Section 4.12(a)).
SECTION 1.03 Terms Generally. The definitions of terms herein shall apply
equally to the singular and plural forms of the terms defined. Whenever the
context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words "include," "includes" and "including" shall
be deemed to be followed by the phrase "without limitation." The word "will"
shall be construed to have the same meaning and effect as the word
16
"shall." Unless the context requires otherwise (a) any definition of or
reference to any agreement, instrument or other document herein shall be
construed as referring to such agreement, instrument or other document as from
time to time amended, supplemented or otherwise modified (subject to any
restrictions on such amendments, supplements or modifications set forth herein),
(b) any reference herein to any Person shall be construed to include such
Person's successors and assigns, (c) the words "herein," "hereof"` and
"hereunder," and words of similar import, shall be construed to refer to this
Agreement in its entirety and not to any particular provision hereof, (d) all
references herein to Articles, Sections, Exhibits and Schedules shall be
construed to refer to Articles and Sections of, and Exhibits and Schedules to,
this Agreement, (e) the words "asset" and "property" shall be construed to have
the same meaning and effect and to refer to any and all tangible and intangible
assets and properties, including cash, securities, accounts and contract rights
and (f) titles of Articles and Sections in this Agreement are for convenience
only, and neither limit nor amplify the provisions of this Agreement.
SECTION 1.04 Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.05 Exchange Rates; Currency Equivalents.
(a) The Administrative Agent shall determine the Spot Rates as of each
Revaluation Date to be used for calculating Dollar Equivalent amounts of Loans,
Letters of Credit, Letter of Credit Obligations and Borrowings denominated in
Alternative Currencies. Such Spot Rates shall become effective as of such
Revaluation Date and shall be the Spot Rates employed in converting any amounts
between the applicable currencies until the next Revaluation Date to occur.
Except for purposes of financial statements delivered by the Borrower hereunder,
calculating financial covenants hereunder and as otherwise provided herein, the
applicable amount of any currencies for purposes of the Loan Documents shall be
such Dollar Equivalent amount as so determined by the Administrative Agent.
(b) Wherever in this Agreement in connection with a Borrowing, conversion,
continuation or prepayment of a Loan or a Letter of Credit, an amount, such as a
required minimum or multiple amount, is expressed in Dollars, but such
Borrowing, Loan or Letter of Credit is denominated in an Alternative Currency,
such amount shall be the relevant Alternative Currency Equivalent of such Dollar
amount (rounded to the nearest 1,000 units of such Alternative Currency), as
determined by the Administrative Agent.
SECTION 1.06 Alternative Currencies. The Borrower may from time to time
request that Loans and Letters of Credit be made in an Alternative Currency;
provided that such requested currency otherwise meets the requirements set forth
in such definition. Any such request shall be made to the Administrative Agent
(which shall promptly notify each Bank holding a Commitment thereof and the
Issuing Bank) not later than 12:00 noon ten Business Days prior to the date of
the desired Borrowing. Each such Bank and the Issuing Bank shall notify the
Administrative Agent, not later than 12:00 noon eight Business Days after
receipt of such request whether it consents, in its sole discretion, to making
Loans and Letters of Credit in such requested currency. Any failure by a Bank or
the Issuing Bank to respond to such request within the time period specified in
the preceding sentence shall be deemed to be a refusal by such Banks or Issuing
Bank to make Loans or Letters of Credit in such requested currency. If
17
the Issuing Bank and all the Banks holding Commitments consent to making Letters
of Credit in such requested currency, and if all the Banks holding Commitments
consent to the making of Loans in such requested currency, the Administrative
Agent shall so notify the Borrower and such currency shall thereupon be deemed
for all purposes to be an Alternative Currency hereunder. The provisions
regarding notice in this Section 1.06 shall apply only to requests for
Alternative Currencies in which Loans or Letters of Credit have not been
previously made or issued and shall govern in the case of any conflict with the
notice provisions set forth in Section 2.02(a), Section 2.03(b) or Section
2.16(d).
SECTION 1.07 Redenomination of Certain Alternative Currencies.
(a) Each obligation of the Borrower to make a payment denominated in the
national currency unit of any member state of the European Union that adopts the
Euro as its lawful currency after the date hereof shall be redenominated into
Euro at the time of such adoption (in accordance with the EMU Legislation). If,
in relation to the currency of any such member state, the basis of accrual of
interest expressed in this Agreement in respect of that currency shall be
inconsistent with any convention or practice in the London interbank market for
the basis of accrual of interest in respect of the Euro, such expressed basis
shall be replaced by such convention or practice with effect from the date on
which such member state adopts the Euro as its lawful currency; provided that if
any Borrowing in the currency of such member state is outstanding immediately
prior to such date, such replacement shall take effect, with respect to such
Borrowing, at the end of the then current Interest Period.
(b) Each provision of this Agreement shall be subject to such reasonable
changes of construction as the Administrative Agent may from time to time
specify to be appropriate to reflect the adoption of the Euro by any member
state of the European Union and any relevant market conventions or practices
relating to the Euro.
ARTICLE II
THE CREDITS
SECTION 2.01 Commitments to Make Loans. Each Bank severally agrees, on the
terms and conditions set forth herein, to make Syndicated Loans in Dollars or in
one or more Alternative Currencies, as applicable, to the Borrower from time to
time before the Termination Date; provided that, immediately after each such
Syndicated Loan is made, (i) the Outstanding Amount of Syndicated Loans by such
Bank plus such Bank's pro rata share (based upon its percentage of Total
Commitments) of the Dollar Equivalent amount of Letter of Credit Obligations
shall not exceed the amount of its Commitment, (ii) the Total Outstandings shall
not exceed the aggregate amount of the Commitments of all of the Banks at such
time, and (iii) the Outstanding Amount of all Syndicated Loans, Money Market
Loans and Letters of Credit Obligations denominated in Alternative Currencies
shall not exceed the Alternative Currency Sublimit. The Dollar Equivalent of
each Eurocurrency Borrowing under this Section 2.01 shall be in an aggregate
principal amount of $5,000,000 or any larger multiple of $1,000,000 and each
Base Rate Borrowing under this Section 2.01 shall be in an aggregate principal
amount of $5,000,000 or any larger multiple of $500,000 (except that any such
Syndicated Borrowing may be in the aggregate amount of the Total Unused
Commitments) and each Syndicated Borrowing shall be made from the several Banks
ratably in proportion to their respective Commitments. Within the foregoing
limits, the Borrower may borrow under this Section 2.01, repay or, to the
18
extent permitted by Section 2.11, prepay Syndicated Loans and reborrow under
this Section 2.01 at any time before the Termination Date.
SECTION 2.02 Method of Borrowing Syndicated Loans.
(a) The Borrower shall give the Administrative Agent notice in the form
attached hereto as Exhibit L (a "Notice of Borrowing") which notice shall be
delivered prior to 11:00 a.m. (Charlotte, North Carolina time) (1) on the
Business Day of each Base Rate Borrowing, (2) three Business Days prior to the
requested date of any Borrowing of Eurocurrency Loans denominated in Dollars,
and (3) four Business Days (or five Business Days in the case of Special Notice
Currencies) prior to the requested date of any Borrowing of Eurocurrency Loans
denominated in Alternative Currencies, and shall specify the following:
(i) the date of such Syndicated Borrowing, which shall be a Business
Day in the case of either a Base Rate Borrowing or a Eurocurrency
Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Syndicated
Borrowing are to be Base Rate Loans or Eurocurrency Loans,
(iv) in the case of a Eurocurrency Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period, and
(v) the Applicable Currency of such Syndicated Borrowing.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Syndicated Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(c) In the case of a Borrowing of Syndicated Loans, each Bank shall (except
as provided in subsection (d) of this Section) make available its ratable share
of such Borrowing, in Same Day Funds at the Administrative Agent's Office or the
Applicable Currency not later than 1:00 p.m. in the case of any Loan denominated
in Dollars, and not later than the Applicable Time specified by the
Administrative Agent in the case of any Loan denominated in Alternative
Currency, in each case on the Business Day if for a Eurocurrency Loan or the
Business Day if for a Base Rate Loan, as specified in the applicable Notice of
Borrowing. Unless the Administrative Agent determines that any applicable
condition specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
at the Administrative Agent's aforesaid address. Unless the Administrative Agent
receives notice from a Bank, at the Administrative Agent's Office, no later than
4:00 p.m. (local time at such address) on the Business Day before the date of a
Syndicated Borrowing stating that such Banks will not make a Syndicated Loan in
connection with such Syndicated Borrowing, the Administrative Agent shall be
entitled to assume that such Banks will make a Syndicated Loan in connection
with such Syndicated Borrowing and, in reliance on such assumption, the
Administrative Agent may (but shall not be obligated to) make available such
Bank's ratable share of such Syndicated Borrowing to the Borrower for the
account of such Bank. If the Administrative Agent makes such Bank's ratable
share available to the Borrower
19
and such Bank does not in fact make its ratable share of such Syndicated
Borrowing available on such date, the Administrative Agent shall be entitled to
recover such Bank's ratable share from such Bank or the Borrower (and for such
purpose shall be entitled to charge such amount to any account of the Borrower
maintained with the Administrative Agent), together with interest thereon for
each day during the period from the date of such Syndicated Borrowing until such
sum shall be paid in full at a rate per annum equal to (x) the Overnight Rate
from the date such payment is due until the third Business Day following such
date, and (y) the Base Rate thereafter, provided that (i) any such payment by
the Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower may have against such Bank and (ii)
until such Bank has paid its ratable share of such Syndicated Borrowing,
together with all interest pursuant to the foregoing, it will have no interest
in or rights with respect to such Syndicated Borrowing for any purpose
hereunder. If the Administrative Agent does not exercise its option to advance
funds for the account of such Bank, it shall promptly notify the Borrower of
such decision.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Syndicated Loan from such
Bank, such Bank shall apply the proceeds of its new Syndicated Loan to make such
repayment and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by such Bank
to the Administrative Agent as provided in subsection (c) of this Section 2.02,
or remitted by the Borrower to the Administrative Agent as provided in Section
2.13, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement,
no Eurocurrency Borrowing may be made if there shall have occurred a Default,
which Default shall not have been cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify whether the
Syndicated Loans comprising such Syndicated Borrowing are to be Base Rate Loans
or Eurocurrency Loans, such Syndicated Loans shall be made as Base Rate Loans.
If the Borrower is otherwise entitled under this Agreement to repay any
Syndicated Loans maturing at the end of an Interest Period applicable thereto
with the proceeds of a new Syndicated Borrowing, and the Borrower fails to repay
such Syndicated Loans using its own moneys and fails to give a Notice of
Borrowing in connection with such new Syndicated Borrowing, a new Syndicated
Borrowing shall be deemed to be made on the date such Syndicated Loans mature in
an amount equal to the principal amount of the Syndicated Loans so maturing, and
the Syndicated Loans comprising such new Syndicated Borrowing shall be Base Rate
Loans.
(g) Notwithstanding anything to the contrary contained herein, (i) there
shall not be more than ten (10) different Interest Periods outstanding at the
same time (for which purpose Interest Periods described in different numbered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous) and (ii) the proceeds
of any Base Rate Borrowing shall be applied first to repay the unpaid principal
amount of all Base Rate Loans (if any) outstanding immediately before such Base
Rate Borrowing.
20
SECTION 2.03 Money Market Loans.
(a) In addition to making Syndicated Borrowings, the Borrower may, as set
forth in this Section 2.03, request the Banks to make offers to make Money
Market Borrowings in Dollars or in one or more Alternative Currencies available
to the Borrower. The Banks may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section 2.03, provided that:
(i) the number of interest rates applicable to Money Market Loans
which may be outstanding at any given time is subject to the provisions of
Section 2.02(g);
(ii) the Total Outstandings after giving effect to such requested
Money Market Borrowing shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time;
(iii) the Outstanding Amount of all Syndicated Loans, Money Market
Loans and Letters of Credit denominated in Alternative Currencies shall not
exceed the Alternative Currency Sublimit;
(iv) the Outstanding Amount of all Money Market Loans, together with
the Outstanding Amount of all Syndicated Loans and all Letter of Credit
Obligations, at any one time outstanding shall not exceed the aggregate
amount of the Commitments of all of the Banks at such time; and
(v) the Money Market Loans of any Banks will be deemed to be usage of
the Commitments for the purpose of calculating availability pursuant to
Section 2.01 and this 2.03(a), but will not reduce such Bank's obligation
to lend its pro rata share of the remaining Total Unused Commitments.
(b) When the Borrower wishes to request offers to make Money Market Loans,
it shall give the Administrative Agent (which shall promptly notify the Banks)
notice substantially in the form of Exhibit F hereto (a "Money Market Quote
Request") so as to be received no later than 12:00 p.m. (Charlotte, North
Carolina time) at least (x) two (2) Business Days prior to the date of the Money
Market Borrowing proposed therein (if such proposed Borrowing is of Money Market
Loans denominated in Dollars) or (y) four (4) Business Days (or five (5)
Business Days in the case of Special Notice Currencies) prior to the date of the
Money Market Borrowing proposed therein (if such proposed Borrowing is of Money
Market Loans denominated in an Alternative Currency) (or, in the case of either
(x) or (y), such other time and date as the Borrower and the Administrative
Agent, with the consent of the Required Banks, may agree), specifying:
(i) the proposed Applicable Currency of such Money Market Borrowing;
(ii) the proposed date of such Money Market Borrowing, which shall be
a Business Day (the "Money Market Borrowing Date");
(iii) the maturity date (or dates) (each a "Stated Maturity Date") for
repayment of each Money Market Loan to be made as part of such Money Market
Borrowing (which Stated Maturity Date shall be that date occurring not less
than seven (7) days but not more than 180 days from the date of such Money
Market Borrowing); provided that the
21
Stated Maturity Date for any Money Market Loan may not extend beyond the
Termination Date (as in effect on the date of such Money Market Quote
Request); and
(iv) the aggregate Dollar Equivalent amount of principal to be
requested by the Borrower as a result of such Money Market Borrowing, which
shall be at least $5,000,000 (and in larger integral multiples of
$1,000,000) but shall not cause the limits specified in Section 2.03(a) to
be violated.
The Borrower may request offers to make Money Market Loans having up to
three (3) different Stated Maturity Dates in a single Money Market Quote
Request; provided that the request for each separate Stated Maturity Date shall
be deemed to be a separate Money Market Quote Request for a separate Money
Market Borrowing. Except as otherwise provided in the immediately preceding
sentence, the Borrower shall not deliver a Money Market Quote Request more
frequently than once every five (5) Business Days.
(c) (i) Each Bank may, but shall have no obligation to, submit a response
containing an offer to make a Money Market Loan substantially in the form of
Exhibit G hereto (a "Money Market Quote") in response to any Money Market Quote
Request; provided that, if the Borrower's request under Section 2.03(b)
specified more than one (1) Stated Maturity Date, such Bank may, but shall have
no obligation to, make a single submission containing a separate offer for each
such Stated Maturity Date and each such separate offer shall be deemed to be a
separate Money Market Quote. Each Money Market Quote must be submitted to the
Administrative Agent not later than (x) 10:00 a.m. (Charlotte, North Carolina
time) on the Money Market Borrowing Date for Money Market Loans denominated in
Dollars or (y) 10:00 a.m. (Charlotte, North Carolina time) on the Business Day
prior to the Money Market Borrowing Date for Money Market Loans denominated in
an Alternative Currency; provided that any Money Market Quote submitted by
Wachovia may be submitted, and may only be submitted, if Wachovia notifies the
Borrower of the terms of the offer contained therein not later than 9:45 a.m.
(Charlotte, North Carolina time) on the Money Market Borrowing Date or the day
prior to the Money Market Borrowing Date, as applicable, (or fifteen (15)
minutes prior to the time that the other Banks are required to have submitted
their respective Money Market Quotes). Subject to Section 3.02, any Money Market
Quote so made shall be irrevocable except with the written consent of the
Administrative Agent given on the instructions of the Borrower.
(ii) Each Money Market Quote shall be in substantially the form of
Exhibit G hereto and shall specify:
(A) the proposed Money Market Borrowing Date and the Stated
Maturity Date therefor;
(B) the principal amounts of the Money Market Loan which the
quoting Bank is willing to make for the applicable Money Market Quote,
which Dollar Equivalent principal amounts (x) may be greater than or
less than the Commitment of the quoting Bank, (y) shall be at least
$5,000,000 or a larger integral multiple of $1,000,000, and (z) may
not exceed the principal amount of the Money Market Borrowing for
which offers were requested;
22
(C) the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100th of 1%) offered for each such Money
Market Loan (such amounts being hereinafter referred to as the "Money
Market Rate"); and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Borrower, no Money
Market Quote shall contain qualifying, conditional or similar language or
propose terms other than or in addition to those set forth in the applicable
Money Market Quote Request (other than setting forth the principal amounts of
the Money Market Loan which the quoting Bank is willing to make for the
applicable Interest Period) and, in particular, no Money Market Quote may be
conditioned upon acceptance by the Borrower of all (or some specified minimum)
of the principal amount of the Money Market Loan for which such Money Market
Quote is being made.
(d) The Administrative Agent shall as promptly as practicable after the
Money Market Quote is submitted (but in any event not later than (x) 10:30 a.m.
(Charlotte, North Carolina time) on the Money Market Borrowing Date for Money
Market Loans denominated in Dollars or (y) 10:30 a.m. (Charlotte, North Carolina
time) on the Business Day prior to the Money Market Borrowing Date for Money
Market Loans denominated in an Alternative Currency), notify the Borrower of the
terms (i) of any Money Market Quote submitted by a Bank that is in accordance
with Section 2.03(c) and (ii) of any Money Market Quote that amends, modifies or
is otherwise inconsistent with a previous Money Market Quote submitted by such
Bank with respect to the same Money Market Quote Request. Any such subsequent
Money Market Quote shall be disregarded by the Administrative Agent unless such
subsequent Money Market Quote is submitted solely to correct a manifest error in
such former Money Market Quote. The Administrative Agent's notice to the
Borrower shall specify (A) the principal amounts of the Money Market Borrowing
for which offers have been received and (B) the respective principal amounts and
Money Market Rates so offered by each Bank (identifying the Bank that made each
Money Market Quote).
(e) Not later than (x) 11:00 a.m. (Charlotte, North Carolina time) on the
Money Market Borrowing Date for Money Market Loans denominated in Dollars or (y)
11:00 a.m. (Charlotte, North Carolina time) on the Business Day prior to the
Money Market Borrowing Date for Money Market Loans denominated in an Alternative
Currency, the Borrower shall notify the Administrative Agent of its acceptance
or nonacceptance of the offers so notified to it pursuant to Section 2.03(d) and
the Administrative Agent shall promptly notify each Bank which submitted an
offer. In the case of acceptance, such notice shall specify the aggregate
principal amount of offers (for each Stated Maturity Date) that are accepted.
The Borrower may accept any Money Market Quote in whole or in part; provided
that:
(i) the Outstanding Amount of each Money Market Borrowing may not
exceed the applicable amount set forth in the related Money Market Quote
Request;
(ii) the Outstanding Amount of each Money Market Borrowing comprising
a Money Market Borrowing shall be at least $5,000,000 (and in larger
integral multiples of $1,000,000) but shall not cause the limits specified
in Section 2.03(a) to be violated;
23
(iii) acceptance of offers may only be made in ascending order of
Money Market Rates; and
(iv) the Borrower may not accept any offer where the Administrative
Agent has advised the Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including, without limitation, Section 2.03(a)).
If offers are made by two (2) or more Banks with the same Money Market Rates for
a greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Stated Maturity Date, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible in proportion to the
aggregate principal amount of such offers. Determinations by the Borrower of the
amounts of Money Market Loans shall be conclusive in the absence of manifest
error.
(f) Any Bank whose offer to make any Money Market Loan has been accepted
shall, not later than (x) 12:00 p.m. (Charlotte, North Carolina time) on the
Money Market Borrowing Date for Money Market Loans denominated in Dollars or (y)
9:00 a.m. (Charlotte, North Carolina time) on the Money Market Borrowing Date
for Money Market Loans denominated in an Alternative Currency, make the amount
of such Money Market Loan allocated to it available to the Administrative Agent
at its address referred to in Section 9.01 in Same Day Funds in the Applicable
Currency. The amount so received by the Administrative Agent shall, subject to
the terms and conditions of this Agreement, be made available to the Borrower on
such date by depositing the same, in Same Day Funds, not later than 4:00 p.m.
(Charlotte, North Carolina time), in an account of such Borrower maintained with
Wachovia.
(g) After any Money Market Loan has been funded, the Administrative Agent
shall notify the Banks of the aggregate principal amount of the Money Market
Quotes received and the highest and lowest rates included in such Money Market
Quotes.
(h) Any Bank may fund a Money Market Loan directly or through a conduit
entity maintained by such Bank.
(i) At any time prior to the Borrower's acceptance of any offer pursuant to
Section 2.03(e), the Borrower may cancel a Money Market Quote Request.
SECTION 2.04 Continuation and Conversion Elections. By delivering a notice
(a "Notice of Continuation or Conversion"), which shall be substantially in the
form of Exhibit M, to the Administrative Agent on or before 12:00 p.m.
(Charlotte, North Carolina time) prior to (1) the Business Day of each
conversion to a Base Rate Loan, (2) three Business Days prior to the requested
date of any conversion to or continuation of, Eurocurrency Loans denominated in
Dollars, and (3) four Business Days (or five Business Days in the case of
Special Notice Currencies) prior to the requested date of any conversion to
Eurocurrency Loans denominated in Alternative Currencies, the Borrower may from
time to time irrevocably elect, by notice delivered that all, or any portion in
an aggregate principal Dollar Equivalent amount of $5,000,000 or any larger
integral multiple of $1,000,000 be, (i) in the case of Base Rate Loans,
converted into Eurocurrency Loans or (ii) in the case of Eurocurrency Loans,
converted into
24
Base Rate Loans or continued as Eurocurrency Loans; provided, however, that (x)
each such conversion or continuation shall be pro rated among the applicable
outstanding Loans of all Banks that have made such Loans, (y) no portion of the
outstanding principal amount of any Loans may be continued as, or be converted
into, any Eurocurrency Loan when any Default has occurred and is continuing, and
(z) when any Default has occurred and is continuing, the Required Banks may
demand that any or all of the then-outstanding Eurocurrency Loans denominated in
an Alternative Currency be converted to Dollar-denominated Base Rate Loans on
the last day of the then-current Interest Period with respect thereto. In the
absence of delivery of a Notice of Continuation or Conversion with respect to
any Eurocurrency Loan at least three (3) Business Days before the last day of
the then current Interest Period with respect thereto, such Eurocurrency Loan
shall, on such last day, automatically convert to a Base Rate Loan; provided,
however, that in the case of a failure to timely request a continuation of a
Loan denominated in an Alternative Currency, such Loan shall be continued as a
Eurocurrency Loan in its original currency with an Interest Period of one month.
No Loan may be converted into or continued as a Loan denominated in a different
currency, but instead must be prepaid in the original currency of such Loan and
reborrowed in the other currency.
SECTION 2.05 Notes.
(a) Upon the request of any Bank, made through the Administrative Agent,
the Syndicated Loans of each Bank shall be evidenced by a single Syndicated Loan
Note payable to the order of such Bank for the account of its Lending Office in
an amount equal to the original principal amount of such Bank's Commitment.
(b) Upon request of any Bank, made through the Administrative Agent, the
Money Market Loans made by any Bank to the Borrower may be evidenced by a single
Money Market Loan Note payable to the order of such Bank for the account of its
Lending Office in an amount equal to the original principal amount of the Total
Commitments.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01(a) and (b)
the Administrative Agent shall deliver such Notes to such Bank. Each Bank shall
record, and prior to any transfer of its Notes shall endorse on the schedule
forming a part thereof appropriate notations to evidence, the date, amount and
maturity of, and effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with respect thereto
and whether, in the case of such Bank's Syndicated Loan Note, such Syndicated
Loan is a Base Rate Loan or a Eurocurrency Loan, and such schedule of each such
Bank's Note shall constitute rebuttable presumptive evidence of the principal
amount owing and unpaid on such Bank's Note; provided that the failure of any
Bank to make, or any error in making, any such recordation or endorsement shall
not affect the obligation of the Borrower hereunder or under the Note or the
ability of any Bank to assign its Note. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Note and to attach to and make a
part of any Note a continuation of any such schedule as and when required.
SECTION 2.06 Maturity of Loans. Each Money Market Loan shall mature, and
the principal amount thereof shall be due and payable, on the Stated Maturity
Date applicable to such Loan. All Loans shall mature, and the principal amount
thereof shall be due and payable, on the Termination Date.
25
SECTION 2.07 Interest Rates.
(a) "Applicable Margin" shall be the rate per annum set forth below
opposite the applicable Pricing Level:
....................... ....................... .................................
Pricing Level Base Rate Loans Eurocurrency Loans and Letters
of Credit
....................... ....................... .................................
Level I 0% 0.260%
....................... ....................... .................................
Level II 0% 0.350%
....................... ....................... .................................
Level III 0% 0.375%
....................... ....................... .................................
Level IV 0% 0.600%
....................... ....................... .................................
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent and shall be effective for Interest Periods applicable to
Eurocurrency Loans commencing on or after the date of any adjustments to the
Pricing Level as provided in the definition thereof.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the Applicable
Margin. Such interest shall be payable on each Quarterly Payment Date while such
Base Rate Loan is outstanding and on the date such Base Rate Loan is converted
to a Eurocurrency Loan or repaid with the proceeds of any Money Market Loan. Any
overdue principal of and, to the extent permitted by Applicable Law, overdue
interest on any Base Rate Loan shall bear interest, payable on demand, for each
day until paid at a rate per annum equal to the Default Rate.
(c) Each Eurocurrency Loan denominated in Dollars shall bear interest on
the outstanding principal amount thereof, for the Interest Period applicable
thereto, at a rate per annum equal to the sum of the Applicable Margin plus the
applicable Adjusted London Interbank Offered Rate for such Interest Period. Such
interest shall be payable for each Interest Period on the last day thereof and,
if such Interest Period is longer than three (3) months, at intervals of three
(3) months after the first day thereof.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Eurocurrency Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Eurocurrency Loan
means, for the Interest Period of such Eurocurrency Loan, the rate per annum
determined on the basis of the offered rate for deposits in the Applicable
Currency of amounts equal or comparable to the principal amount of such
Eurocurrency Loan offered for a term comparable to such Interest Period, which
rates appear on Telerate Page 3750 effective as of 11:00 a.m.., London time, two
(2) Business Days prior to the first day of such Interest Period, provided that
if no such offered rates appear on such page, the "London Interbank Offered
Rate" for such Interest Period will be the arithmetic average (rounded upward,
if necessary, to the next higher 1/100th of 1%) of rates quoted by not less than
two (2) major lenders in New York City, selected by the Administrative
26
Agent, at approximately 10:00 A.M., New York City time, two (2) Business Days
prior to the first day of such Interest Period, for deposits in Dollars the
Applicable Currency offered by leading European banks for a period comparable to
such Interest Period in an amount comparable to the principal amount of such
Eurocurrency Loan.
"Eurocurrency Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Eurocurrency Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Eurocurrency Reserve Percentage.
(d) Each Eurocurrency Loan denominated in an Alternative Currency shall
bear interest on the outstanding principal amount thereof, for the Interest
Period applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin plus the applicable Adjusted IBOR Rate for such Interest
Period. Such interest shall be payable for each Interest Period on the last day
thereof and, if such Interest Period is longer than three (3) months, at
intervals of three (3) months after the first day thereof.
"Adjusted IBOR Rate" means, with respect to each Interest Period for a
Eurocurrency Loan denominated in an Alternative Currency, the sum of (i) the
rate obtained by dividing (A) IBOR for such Interest Period by (B) a percentage
equal to 1 minus the then stated maximum rate (stated as a decimal) of all
reserve requirements in respect of any category of liabilities by reference to
which the interest rate on such Eurocurrency Loan denominated in an Alternative
Currency is determined (including, without limitation, any marginal, emergency,
supplemental, special or other reserves) applicable to any member bank of the
Federal Reserve System as defined in Regulation D (or against any successor
category of liabilities as defined in Regulation D), plus (ii) if the relevant
Foreign Currency Loan is in British pounds sterling, a percentage sufficient to
compensate the Banks for the cost of complying with any reserves, liquidity
and/or special deposit requirements of the Bank of England directly or
indirectly affecting the maintenance or funding of such Eurocurrency Loan
denominated in an Alternative Currency.
"IBOR" means, for any Interest Period, with respect to Eurocurrency Loans
denominated in an Alternative Currency, the offered rate for deposits in the
applicable Alternative Currency, for a period comparable to the Interest Period
and in an amount comparable to the amount of such Eurocurrency Loan denominated
in an Alternative Currency appearing on the applicable Telerate Page as of 11:00
a.m. (London, England time) on the day that is two Business Days prior to the
first day of the Interest Period. If the foregoing rate is unavailable from
Telerate for any reason, then such rate shall be determined by the
Administrative Agent from any other interest rate reporting service of
recognized standing designated in writing by the Administrative Agent to the
Borrower.
(e) Any overdue principal of and, to the extent permitted by law, overdue
interest on any Eurocurrency Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
27
(f) Each Money Market Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Money Market Loan is made until
it becomes due, at a rate per annum equal to the applicable Money Market Rate
set forth in the relevant Money Market Quote. Such interest shall be payable on
the Stated Maturity Date thereof, and, if the Stated Maturity Date occurs more
than 90 days after the date of the relevant Money Market Loan, at intervals of
90 days after the first day thereof. Any overdue principal of and, to the extent
permitted by law, overdue interest on any Money Market Loan shall bear interest,
payable on demand, for each day until paid at a rate per annum equal to the
Default Rate.
(g) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder in accordance with this Agreement. The Administrative
Agent shall give prompt notice to the Borrower and the Banks by facsimile of
each rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(h) After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by Applicable Law,
all accrued interest thereon) may, at the election of the Required Banks, bear
interest at the Default Rate.
SECTION 2.08 Fees.
(a) The Borrower shall pay to the Administrative Agent for the ratable
account of each Bank a facility fee equal to the product of: (i) the aggregate
of the daily average amounts of such Bank's Commitment, times (ii) a per annum
percentage equal to the Applicable Facility Fee Rate. Such facility fee shall
accrue from and including the Closing Date to and including the Termination
Date. Facility fees shall be payable quarterly in arrears on each Quarterly
Payment Date and on the Termination Date; provided that should the Commitments
be terminated at any time prior to the Termination Date for any reason, the
entire accrued and unpaid facility fee shall be paid on the date of such
termination. The "Applicable Facility Fee Rate" shall be the rate per annum set
forth below opposite the applicable Pricing Level:
......................... ..........................
Pricing Level Applicable Facility Fee
Rate
......................... ..........................
Level I .090%
......................... ..........................
Level II .100%
......................... ..........................
Level III .125%
......................... ..........................
Level IV .150%
......................... ..........................
Adjustments, if any, in the Applicable Facility Fee Rate shall be made by the
Administrative Agent and shall be effective on the date of any adjustments to
the Pricing Level as provided in the definition thereof.
(b) The Borrower shall pay to the Administrative Agent for the ratable
account of each Bank a utilization fee equal to the product of: (i) the
aggregate of the daily average amounts of such Bank's Commitment, multiplied by
(ii) a per annum percentage equal to the Applicable Utilization Fee Rate. The
Applicable Utilization Fee Rate may vary daily in accordance with the percentage
of the Total Commitments that is currently outstanding as Loans and Letter of
Credit
28
Obligations. Such utilization fee shall accrue from and including the Closing
Date to and including the Termination Date. Utilization fees shall be payable
quarterly in arrears on each Quarterly Payment Date and on the Termination Date;
provided that should the Commitments be terminated at any time prior to the
Termination Date for any reason, the entire accrued and unpaid utilization fee
shall be paid on the date of such termination. The "Applicable Utilization Fee
Rate" shall be the rate per annum set forth below opposite the applicable
Pricing Level:
.................................................................................
Applicable Utilization Fee Rate
.................................................................................
.................... ............................................................
Percentage of Total Commitments currently outstanding
as Loans and Letter of Credit Obligations:
.................... ............................................................
Pricing Level Less than 50% Greater than or equal to 50%
.................... ........................... ................................
Level I 0% 0.100%
.................... ........................... ................................
Level II 0% 0.100%
.................... ........................... ................................
Level III 0% 0.125%
.................... ........................... ................................
Level IV 0% 0.125%
.................... ........................... ................................
Adjustments, if any, in the Applicable Utilization Fee Rate shall be made by the
Administrative Agent and shall be effective on the date of any adjustments to
the Pricing Level as provided in the definition thereof.
(c) The Borrower shall pay to the Administrative Agent, for the account and
sole benefit of the Administrative Agent, such fees and other amounts at such
times as set forth in the Administrative Agent's Letter Agreement.
SECTION 2.09 Optional Termination or Reduction of Commitments. The Borrower
may, upon at least three (3) Business Days' notice to the Administrative Agent,
terminate at any time, or proportionately reduce from time to time the Total
Unused Commitments by an aggregate amount of at least $5,000,000 or any larger
multiple of $1,000,000. If the Commitments are terminated in their entirety, all
accrued fees (as provided under Section 2.08) shall be due and payable on the
effective date of such termination. All terminations or reductions of
Commitments shall be permanent. Each reduction shall be made ratably among the
Banks in accordance with their respective Commitments.
SECTION 2.10 Termination of Commitments. The Commitments shall terminate on
the Termination Date and any Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
SECTION 2.11 Optional Prepayments.
(a) The Borrower may, upon at least one (1) Business Day's notice to the
Administrative Agent, prepay any Base Rate Borrowing in whole at any time, or
from time to time in part in amounts aggregating at least $5,000,000 or any
larger multiple of $1,000,000 (or any lesser amount equal to the outstanding
balance of such Loan), by paying the principal amount to be prepaid together
with accrued interest thereon to the date of prepayment. Each such optional
29
prepayment shall be applied to prepay ratably the Base Rate Loans of the several
Banks included in such Base Rate Borrowing.
(b) Except as provided in Section 8.02 and subject to any payments required
pursuant to the terms of Article VIII for such Eurocurrency Loan, upon three (3)
Business Days' prior written notice in the case of Eurocurrency Loans
denominated in Dollars and upon four (4) Business Days (or (5) five Business
Days in the case of Special Notice Currencies), the Borrower may prepay in
minimum Dollar Equivalent amounts of $5,000,000 or any larger multiple of
$1,000,000 (or any lesser amount equal to the outstanding balance of such Loan)
all or any portion of the principal amount of any Eurocurrency Loan or Money
Market Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.11,
the Administrative Agent shall promptly notify each Bank of the contents thereof
and of such Bank's ratable share of such prepayment and such notice shall not
thereafter be revocable by the Borrower.
(d) Notwithstanding anything in this Agreement to the contrary, prepayments
shall not affect Borrower's obligations under any Hedging Agreements, which
shall remain in full force and effect, subject to the terms of such Hedging
Agreement.
SECTION 2.12 Mandatory Prepayments. On each date on which the conditions
set forth in Section 2.01 are not satisfied (including, without limitation,
because (i) the Commitments are reduced or terminated pursuant to Section 2.09
or Section 2.10, (ii) if for any reason (including exchange rate fluctuations)
the Outstanding Amount of all Syndicated Loans, Money Market Loans and Letter of
Credit Obligations denominated in Alternative Currencies at such time exceeds
the Alternative Currency Sublimit or (iii) if for any reason (including exchange
rate fluctuations) the Total Obligations exceed the amount of the Commitments),
the Borrower shall repay or prepay such principal amount of the outstanding
Loans, if any (together with interest accrued thereon and any amounts due under
Section 8.05(a)), as may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied to
repay or prepay ratably the Loans of the several Banks; provided that such
prepayment shall be applied, first, to Base Rate Loans outstanding on the date
of such prepayment (in direct order of maturity), second, to the extent
necessary, to Eurocurrency Loans outstanding on the date of such prepayment (in
direct order of maturity) and then, to the extent necessary, to Money Market
Loans outstanding on the date of such prepayment (in direct order of maturity).
SECTION 2.13 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and Reimbursement Obligations and of fees hereunder (except as
otherwise expressly provided herein and except with respect to principal of and
interest on Loans or Reimbursement Obligations denominated in an Alternative
Currency), without any setoff, counterclaim or any deduction whatsoever, to the
Administrative Agent for the account of the Banks and the Issuing Bank, at the
Administrative Agent's Office not later than 11:00 a.m. (Charlotte, North
Carolina time) on the date when due, in Dollars and Same Day Funds immediately
available in Charlotte,
30
North Carolina. Except as otherwise expressly provided herein, all payments by
the Borrower hereunder with respect to principal of and interest on Loans and
Reimbursement Obligations denominated in an Alternative Currency shall be made
to the Administrative Agent, for the account of the respective Banks or Issuing
Bank to which such payment is owed, at the Administrative Agent's Office in such
Alternative Currency and in Same Day Funds not later than the Applicable Time
specified by the Administrative Agent on the dates specified herein. The
Administrative Agent will promptly distribute to each Bank its ratable share of
each such payment received by the Administrative Agent for the account of the
Banks. The Administrative Agent shall promptly distribute to the Issuing Bank
such payment received by the Administrative Agent for the Issuing Bank. All
payments received by the Administrative Agent (i) after 11:00 a.m., in the case
of payments in Dollars, or (ii) after the Applicable Time specified by the
Administrative Agent in the case of payments in an Alternative Currency, shall
in each case be deemed received on the next succeeding Business Day and any
applicable interest or fee shall continue to accrue.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans, the Money Market Loans or of fees shall be due on a day that is not a
Business Day, the date for payment thereof shall be extended to the next
succeeding Business Day. Whenever any payment of principal of, or interest on,
the Eurocurrency Loans shall be due on a day that is not a Business Day, the
date for payment thereof shall be extended to the next succeeding Business Day
unless such Business Day falls in another calendar month, in which case the date
for payment thereof shall be the next preceding Business Day. If the date for
any payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Loan,
Reimbursement Obligation or fee relating thereto shall be paid without deduction
for, and free from, any tax, imposts, levies, duties, deductions, or
withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each Bank and the Issuing Bank, taxes imposed on or measured by
its net income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank or the Issuing Bank is organized or any political
subdivision thereof and, in the case of each Bank and the Issuing Bank, taxes
imposed on its income, and franchise taxes imposed on it, by the jurisdiction of
such Bank's or the Issuing Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that the
Borrower is required by Applicable Law to make any such withholding or deduction
of Taxes with respect to any Loan, Reimbursement Obligation, fee or other
amount, or any such Loan, Reimbursement Obligation, fee or other amount is
subject to Taxes payable by any Bank or the Issuing Bank, the Borrower shall pay
such amount, deduction or withholding to the applicable taxing authority, shall
promptly furnish to any Bank or the Issuing Bank, as applicable, in respect of
which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank or the Issuing Bank
additional amounts as may be necessary in order that the amount received by such
Bank or the Issuing Bank after the required withholding or other payment shall
equal the amount such Bank or Issuing Bank would have received had no such
withholding or other payment been made. If no payment, withholding or deduction
of Taxes is payable in respect of any Loan or fee relating thereto, the Borrower
shall furnish any Bank or Issuing Bank, at such Bank's or the Issuing Bank's
request, a certificate from each applicable taxing authority or an opinion of
31
counsel acceptable to such Bank or Issuing Bank, in either case stating that
such payments are exempt from or not subject to payment, withholding or
deduction of Taxes. If the Borrower fails to provide such original or certified
copy of a receipt evidencing payment of Taxes or certificate(s) or opinion of
counsel of exemption, the Borrower hereby agrees to compensate such Bank and the
Issuing Bank for, and indemnify them with respect to, the tax consequences of
the Borrower's failure to provide evidence of tax payments or tax exemption.
(d) Any Bank or Issuing Bank that is not organized under the laws of the
United States or a state thereof (a "Foreign Bank") that is entitled to an
exemption from or reduction in U.S. Federal withholding tax shall deliver to the
Borrower and the Administrative Agent two copies of either United States
Internal Revenue Service Form W-8BEN or Form W-8ECI, or any subsequent versions
thereof or successors thereto, or, in the case of a Foreign Bank claiming
exemption from in U.S. Federal withholding tax under Section 871(h) or 881(c) of
the Code with respect to payments of "portfolio interest," (i) a Form W-8BEN, or
any subsequent versions thereof or successors thereto and (ii) a certificate
representing that such Foreign Bank is not (A) a bank for purposes of Section
881(c) of the Code, (B) is not a 10-percent shareholder (within the meaning of
Section 871(h)(3)(B) of the Code) of the Borrower and (C) is not a controlled
foreign corporation related to the Borrower (within the meaning of Section
864(d)(4) of the Code)), properly completed and duly executed by such Foreign
Bank claiming, as applicable, complete exemption from or reduced rate of, U.S.
Federal withholding Tax on payments by the Borrower under this Agreement and the
other Loan Documents, or in the case of a Foreign Bank claiming exemption for
"portfolio interest" certifying that it is not a foreign corporation,
partnership, estate or trust. Such forms shall be delivered by each Foreign Bank
on or before the date it becomes a party to this Agreement (or, in the case of a
transferee that is a participation holder, on or before the date such
participation holder becomes a transferee hereunder) and on or before the date,
if any, such Foreign Bank changes its applicable lending office by designating a
different lending office (a "New Lending Office"). In addition, each Foreign
Bank shall deliver such forms promptly upon the obsolescence or invalidity of
any form previously delivered by such Foreign Bank.
(e) Upon the request of the Borrower, any Bank or Issuing Bank that is not
a Foreign Bank shall deliver to the Borrower two copies of United States
Internal Revenue Service Form W-9 or any subsequent versions thereof or
successors thereto, properly completed and duly executed. If any Bank or Issuing
Bank fails to deliver Form W-9 or any subsequent versions thereof or successors
thereto as required herein, then the Borrower may withhold from any payment to
such party an amount equivalent to the applicable backup withholding Tax imposed
by the Code, without reduction.
(f) The Borrower shall not be required to indemnify any Bank or Issuing
Bank or to pay any additional amounts to any Bank or Issuing Bank in respect of
U.S. Federal withholding tax pursuant to Section 2.13(d) or Section 2.13(e) to
the extent that the obligation to pay such additional amounts would not have
arisen but for a failure by such Bank or Issuing Bank to comply with the
provisions of such Sections. Should a Bank or Issuing Bank become subject to
Taxes because of its failure to deliver a form required hereunder, the Borrower
shall, at such Bank's or Issuing Bank's expense, take such steps as such Bank or
Issuing Bank shall reasonably request to assist such Bank or Issuing Bank to
recover such Taxes.
32
(g) Each of the Banks and the Issuing Bank agrees that upon the occurrence
of any circumstances entitling such Bank or Issuing Bank to indemnification or
additional amounts pursuant to this Section, such Bank or Issuing Bank shall use
reasonable efforts to take any action (including designating a new lending
office and signing any prescribed forms or other documentation appropriate in
the circumstances) if such action would reduce or eliminate any Tax (including
penalties or interest, as applicable) with respect to which such indemnification
or additional amounts may thereafter accrue; provided that a Bank or Issuing
Bank shall not be required to take any such action if it shall determine in its
sole discretion that doing so would be materially disadvantageous to its
interests.
(h) In the event any Bank or Issuing Bank receives a refund of any Taxes
paid by the Borrower pursuant to this Section 2.13, it will pay to the Borrower
the amount of such refund promptly upon receipt thereof; provided, however, if
at any time thereafter it is required to return such refund, the Borrower shall
promptly repay to it the amount of such refund.
(i) Without prejudice to the survival of any other agreement of the
Borrower hereunder, the agreements and obligations of the Borrower contained in
this Section 2.13 shall be applicable with respect to any Participant, Assignee
or other Transferee, and any calculations required by such provisions (i) shall
be made based upon the circumstances of such Participant, Assignee or other
Transferee, and (ii) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Notes.
(j) Unless the Administrative Agent shall have received notice from the
Borrower prior to the date on which any payment is due to the Banks or Issuing
Bank hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each Bank or Issuing
Bank on such due date an amount equal to the amount then due such Bank or
Issuing Bank. If and to the extent the Borrower shall not have so made such
payment in full to the Administrative Agent on such date, each Bank and Issuing
Bank, as applicable, shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Bank or Issuing Bank, together with interest
thereon, for each day from the date such amount is distributed to such Bank or
Issuing Bank until the date such Bank or Issuing Bank repays such amount to the
Administrative Agent, at the Overnight Rate for the first three (3) Business
Days after the date such payment is due and at the Base Rate thereafter.
SECTION 2.14 Computation of Interest and Fees. Interest on Base Rate Loans
based on the Prime Rate shall be computed on the basis of a year of 365 or 366
days, as applicable, and paid for the actual number of days elapsed (including
the first day but excluding the last day); provided that in the case of interest
in respect of Loans denominated in Alternative Currencies as to which market
practice differs from the foregoing, interest shall be computed in accordance
with such market practice. Interest on Base Rate Loans based on the Overnight
Rate and interest on Eurocurrency Loans shall be computed on the basis of a year
of 360 days and paid for the actual number of days elapsed, calculated as to
each Interest Period from and including the first day thereof to but excluding
the last day thereof. Facility fees and any other fees payable hereunder shall
be computed on the basis of a year of 360 days and paid for the actual number of
days elapsed (including the first day but excluding the last day); provided that
in the case of interest in respect of Loans denominated in Alternative
Currencies as to which
33
market practice differs from the foregoing, interest shall be computed in
accordance with such market practice.
SECTION 2.15 Existing Credit Agreement and Existing Notes. The Borrower and
the Administrative Agent acknowledge and agree that there are no obligations of
the Borrower under the Existing Credit Agreement as of the Closing Date which
have not been paid and satisfied. Effective as of the Closing Date, the Existing
Credit Agreement is hereby terminated by agreement of the Administrative Agent,
the Borrower and the Banks party hereto which are also parties to the Existing
Credit Agreement. The Borrower will obtain similar agreements as to termination
from all other parties to the Existing Credit Agreement. All promissory notes
issued by the Borrower under the Existing Credit Agreement shall be either (i)
returned to the Borrower, marked "Paid in Full and Discharged," or (ii)
destroyed by each Bank hereinafter referred to in this sentence with a written
notice from such Bank to the Borrower that such promissory notes have been
destroyed, in either case on or within ten (10) Business Days of the Closing
Date by the Banks under this Agreement which were also banks under the Existing
Credit Agreement, and the Borrower will request similar delivery of promissory
notes or similar notices of destruction from all other banks under the Existing
Credit Agreement, if any, within the same time period.
SECTION 2.16 Letter of Credit Facility.
(a) Obligation to Issue. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties of the
Borrower herein set forth, the Issuing Bank shall issue for the account of
Borrower, one or more Letters of Credit denominated in Dollars or in one or more
Alternative Currencies, in accordance with this Section 2.16, from time to time
during the period commencing on the Closing Date and ending on the Business Day
prior to the Termination Date.
(b) Types and Amounts. The Issuing Bank shall have no obligation to issue
any Letter of Credit at any time:
(i) if the aggregate maximum amount then available for drawing under
Letters of Credit, after giving effect to the issuance of the requested
Letter of Credit, shall exceed any limit imposed by law or regulation upon
the Issuing Bank;
(ii) if, after giving effect to the issuance of the requested Letter
of Credit, (A) the aggregate Letter of Credit Obligations would exceed
$100,000,000, or (B) the conditions set forth in the first sentence of
Section 2.01 would not be satisfied;
(iii) which has an expiration date on or after the earlier of (A) the
date twelve (12) months after the date of the issuance of such Letter of
Credit (or, in the case of any renewal or extension thereof, twelve (12)
months after the then-current expiration date of such Letter of Credit so
long as such renewal or extension occurs within three (3) months of such
then-current expiration date) and (B) the date that is five (5) Business
Days prior to the Termination Date; provided that a Letter of Credit having
an expiry date later than five (5) Business Days prior to the maturity date
(an "Extended Letter of Credit") may be issued if (1) such Extended Letter
of Credit (A) has an expiration date no later than one year after the
issuance of such Letter of Credit and (B) does not provide for
34
the renewal thereof for additional periods, and (2) Cash Collateral or
Backup Letters of Credit satisfactory to Issuing Bank in its sole
discretion are provided in respect of such Extended Letter of Credit in
accordance with Section 2.16(j).
(c) Conditions. In addition to being subject to the satisfaction of the
conditions contained in Article III, the obligation of the Issuing Bank to issue
any Letter of Credit is subject to the satisfaction in full of the following
conditions:
(i) the Borrower shall have delivered to the Issuing Bank at such
times and in such manner as the Issuing Bank may prescribe, a Letter of
Credit Application Agreement and such other documents and materials as may
be required pursuant to the terms thereof all satisfactory in form and
substance to the Issuing Bank and the terms of the proposed Letter of
Credit shall be satisfactory in form and substance to the Issuing Bank;
(ii) as of the date of issuance no order, judgment or decree of any
court, arbitrator or Governmental Authority shall purport by its terms to
enjoin or restrain the Issuing Bank from issuing the Letter of Credit and
no law, rule or regulation applicable to the Issuing Bank and no request or
directive (whether or not having the force of law) from any Governmental
Authority with jurisdiction over the Issuing Bank shall prohibit or request
that the Issuing Bank refrain from the issuance of letters of credit
generally or the issuance of that Letter of Credit; and
(iii) after the issuance of the requested Letter of Credit, the
conditions set forth in the first sentence of Section 2.01 shall
be satisfied.
(d) Issuance of Letters of Credit.
(i) Request for Issuance. At least two Business Days before the
effective date for any Letter of Credit, the Borrower shall give the
Issuing Bank a written notice containing the original signature of an
authorized officer or employee of such Borrower. Such notice shall be
irrevocable and shall specify the original face amount of the Letter of
Credit requested (which original face amount shall not be less than
$100,000, unless otherwise agreed by the Issuing Bank), the Applicable
Currency of the Letter of Credit requested, the effective date (which day
shall be a Business Day) of issuance of such requested Letter of Credit,
the date on which such requested Letter of Credit is to expire, the amount
of then outstanding Letter of Credit Obligations, the purpose for which
such Letter of Credit is to be issued, whether such Letter of Credit may be
drawn in single or partial draws and the person for whose benefit the
requested Letter of Credit is to be issued.
(ii) Issuance; Notice of Issuance. If the conditions set forth in
Section 2.16(c) are satisfied, the Issuing Bank shall issue the requested
Letter of Credit. The Issuing Bank shall give each Bank written or telex
notice, or telephonic notice substantially in the form of Exhibit N, or
telephonic notice confirmed promptly thereafter in writing, of the issuance
of a Letter of Credit and shall deliver to each Bank in connection with
such notice a copy of the Letter of Credit issued by the Issuing Bank.
35
(iii) No Extension or Amendment. The Issuing Bank shall not extend or
amend any Letter of Credit if the issuance of a new Letter of Credit having
the same terms as such Letter of Credit as so amended or extended would be
prohibited by Section 2.16(b) or (c).
(e) Reimbursement Obligations; Duties of the Issuing Bank.
(i) Reimbursement. Notwithstanding any provisions to the contrary in
any Letter of Credit Application Agreement:
(A) the Borrower shall reimburse the Issuing Bank for drawings
under a Letter of Credit issued by it no later than the Business Day
of payment by the Issuing Bank;
(B) any Reimbursement Obligation with respect to any Letter of
Credit shall bear interest from the date of the relevant drawing under
the pertinent Letter of Credit until the date of payment in full
thereof at a rate per annum equal to the Default Rate; and
(C) in order to implement the foregoing, upon the occurrence of a
draw under any Letter of Credit, unless the Issuing Bank is reimbursed
in accordance with clause (i) above, the Borrower irrevocably
authorizes the Issuing Bank and the Administrative Agent to treat such
nonpayment as a Notice of Borrowing in the amount of such
Reimbursement Obligation and the Banks to make Syndicated Loans to
Borrower in such amount regardless of whether the conditions precedent
to the making of Syndicated Loans hereunder have been met. The
Borrower further authorizes the Administrative Agent to credit the
proceeds of such Syndicated Loan so as to immediately eliminate the
liability of the Borrower for Reimbursement Obligations under such
Letter of Credit.
(ii) Duties of the Issuing Bank. Any action taken or omitted to be
taken by the Issuing Bank in connection with any Letter of Credit, if taken
or omitted in the absence of willful misconduct or gross negligence, shall
not put the Issuing Bank under any resulting liability to any Bank, or
assuming that the Issuing Bank has complied with the procedures specified
in Section 2.16(d) and such Bank has not given a notice contemplated by
Section 2.16(f)(i) that continues in full force and effect, relieve that
Bank of its obligations hereunder to the Issuing Bank. In determining
whether to pay under any Letter of Credit, the Issuing Bank shall have no
obligation relative to the Banks other than to confirm that any documents
required to have been delivered under such Letter of Credit appear to
comply on their face, with the requirements of such Letter of Credit.
(iii) Applicability of ISP98. Unless otherwise expressly agreed by the
Issuing Bank and the Borrower when a Letter of Credit is issued the rules
of the "International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as may
be in effect at the time of issuance) shall apply to each Letter of Credit.
36
(f) Participations.
(i) Purchase of Participations. Immediately upon issuance by the
Issuing Bank of any Letter of Credit in accordance with the procedures set
forth in Section 2.16(d), each Bank shall be deemed to have irrevocably and
unconditionally purchased and received from the Issuing Bank, without
recourse or warranty, an undivided interest and participation, to the
extent of such Bank's ratable share of the aggregate Commitments, in such
Letter of Credit.
(ii) Sharing of Letter of Credit Payments. In the event that the
Issuing Bank makes any payment under any Letter of Credit for which the
applicable Borrower shall not have repaid such amount to the Issuing Bank
pursuant to Section 2.16(g) or which cannot be paid by a Loan pursuant to
Section 2.16(e) the Issuing Bank shall promptly notify each Bank of such
failure, and each Bank shall promptly and unconditionally pay to the
Issuing Bank such Bank's ratable share of the amount of such payment in
Same Day Funds in the Applicable Currency of the relevant Letter of Credit.
If the Issuing Bank so notifies such Bank prior to 10:00 a.m. (Charlotte,
North Carolina time) on any Business Day, such Bank shall make available to
the Issuing Bank its ratable share of the amount of such payment on such
Business Day in Same Day Funds. If such Bank notifies the Administrative
Agent that it cannot make its ratable share of the amount of such payment
in the Alternative Currency of the relevant Letter of Credit, the
Administrative Agent shall inform the Bank and the Issuing Bank of the Spot
Rate and the Bank may make a payment on the required Business Day to the
Administrative Agent in Dollars in an amount sufficient, in the sole
opinion of the Issuing Bank, for the Issuing Bank to purchase with Dollars
such amount in the Alternative Currency based on the current Spot Rate. If
and to the extent such Bank shall not have so made its ratable share of the
amount of such payment available to the Issuing Bank, such Bank agrees to
pay to the Issuing Bank forthwith on demand such amount together with
interest thereon (or the Dollar Equivalent of such amount with interest
thereon, if the Letter of Credit is denominated in an Alternative
Currency), for each day from the date such payment was first due until the
date such amount is paid to the Issuing Bank at the Overnight Rate for the
first 3 days and thereafter at the Base Rate. The failure of any Bank to
make available to the Issuing Bank its ratable share of any such payment
shall neither relieve nor increase the obligation of any other Bank
hereunder to make available to the Issuing Bank its ratable share of any
payment on the date such payment is to be made.
(iii) Sharing of Reimbursement Obligation Payments. Whenever the
Issuing Bank receives a payment on account of a Reimbursement Obligation,
including any interest thereon, as to which the Issuing Bank has received
any payments from the Banks pursuant to this Section 2.16(f), it shall
promptly pay to each Bank which has funded its participating interest
therein, in Dollars and in the kind of funds so received, an amount equal
to such Bank's ratable share thereof. Each such payment shall be made by
the Issuing Bank on the Business Day on which the funds are paid to such
Person, if received prior to 10:00 a.m. (Charlotte, North Carolina time) on
such Business Day, and otherwise on the next succeeding Business Day.
(iv) Documentation. Upon the request of the Administrative Agent, the
Issuing Bank shall furnish to the Administrative Agent copies of any Letter
of Credit,
37
Letter of Credit Application Agreement and other documentation relating to
Letters of Credit issued pursuant to this Agreement.
(v) Obligations Irrevocable. The obligations of the Banks to make
payments to the Issuing Bank with respect to a Letter of Credit shall be
irrevocable, not subject to any qualification or exception whatsoever and
shall be made in accordance with, but not subject to, the terms and
conditions of this Agreement under all circumstances (assuming that the
Issuing Bank has issued such Letter of Credit in accordance with Section
2.16(d)), including, without limitation, any of the following
circumstances:
(A) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(B) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Letter of Credit or any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Issuing Bank,
the Administrative Agent, any Bank or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions;
(C) any draft, certificate or any other document presented under
the Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) payment by the Issuing Bank under any Letter of Credit
against presentation of any draft or certificate proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect, except payment
resulting from the gross negligence or willful misconduct of the
Issuing Bank;
(F) payment by the Issuing Bank under any Letter of Credit
against presentation of any draft or certificate that does not comply
with the terms of such Letter of Credit, except payment resulting from
the gross negligence or willful misconduct of the Issuing Bank; or
(G) any other circumstances or happenings whatsoever, whether or
not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct
of the Issuing Bank.
(g) Payment of Reimbursement Obligations.
(i) Payments to Issuing Bank. The Borrower agrees to pay to the
Issuing Bank the amount of all Reimbursement Obligations, interest and
other amounts payable to the Issuing Bank under or in connection with any
Letter of Credit issued for such Borrower's account immediately when due,
irrespective of:
38
(A) any lack of validity or enforceability of this Agreement or
any of the other Loan Documents;
(B) the existence of any claim, set-off, defense or other right
which the Borrower may have at any time against a beneficiary named in
a Letter of Credit or any transferee of any Letter of Credit (or any
Person for whom any such transferee may be acting), the Issuing Bank,
the Administrative Agent, any Bank or any other Person, whether in
connection with this Agreement, any Letter of Credit, the transactions
contemplated herein or any unrelated transactions;
(C) any draft, certificate or any other document presented under
the Letter of Credit proves to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(D) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents;
(E) payment by the Issuing Bank under any Letter of Credit
against presentation of any draft or certificate proving to be forged,
fraudulent, invalid or insufficient in any respect or any statement
therein being untrue or inaccurate in any respect, except payment
resulting from the gross negligence or willful misconduct of the
Issuing Bank;
(F) payment by the Issuing Bank under any Letter of Credit
against presentation of any draft or certificate that does not comply
with the terms of such Letter of Credit, except payment resulting from
the gross negligence or willful misconduct of the Issuing Bank; or
(G) any other circumstances or happenings whatsoever, whether or
not similar to any of the foregoing, except circumstances or
happenings resulting from the gross negligence or willful misconduct
of the Issuing Bank.
(ii) Recovery or Avoidance of Payments. In the event any payment by or
on behalf of the Borrower received by the Issuing Bank with respect to a
Letter of Credit and distributed by the Issuing Bank to the Banks on
account of their participations is thereafter set aside, avoided or
recovered from the Issuing Bank in connection with any receivership,
liquidation or bankruptcy proceeding, each Bank that received such
distribution shall, upon demand by the Issuing Bank, contribute such Bank's
ratable share of the amount set aside, avoided or recovered together with
interest at the rate required to be paid by the Issuing Bank upon the
amount required to be repaid by it.
(h) Compensation for Letters of Credit.
(i) Letter of Credit Fees. The Borrower shall pay to the
Administrative Agent with respect to each Letter of Credit issued hereunder
(i) for the account of each Bank, a participation fee (a "Participation
Fee") with respect to its participations in Letters of Credit, which shall
accrue at a rate per annum equal to the Applicable Margin applicable to
interest on Eurocurrency Loans in the Applicable Currency on the average
daily amount of such Bank's Letter of Credit Obligations during the period
from and including
39
the date hereof to but excluding the later of the date on which such Bank's
Commitment terminates and the date on which such Bank ceases to have any
Letter of Credit Obligations, and (ii) for the account of the Issuing Bank,
a fronting fee ("Fronting Fee" and, together with Participation Fees,
"Letter of Credit Fees") equal to 0.10% per annum of the face amount of
such Letter of Credit. Letter of Credit Fees shall be payable in arrears on
each Quarterly Payment Date and on the Termination Date. The Administrative
Agent shall promptly remit such Participation Fees, when paid, to the Banks
in accordance with their ratable shares thereof.
(ii) Issuing Bank Charges. The Borrower shall pay to the Issuing Bank,
solely for its own account, the standard charges assessed by the Issuing
Bank in connection with the issuance, administration, amendment and payment
or cancellation of Letters of Credit issued hereunder, which charges shall
be those typically charged by the Issuing Bank to its customers generally
having credit and other characteristics similar to the Borrower, as
determined in good faith by the Issuing Bank.
(i) Indemnification; Exoneration.
(i) Indemnification. In addition to amounts payable as elsewhere
provided in this Section 2.16, the Borrower shall protect, indemnify, pay
and save the Issuing Bank, the Administrative Agent and each Bank harmless
from and against any and all claims, demands, liabilities, damages, losses,
costs, charges and expenses (including reasonable attorneys' fees) which
the Issuing Bank, the Administrative Agent, or any Bank may incur or be
subject to as a consequence of the issuance of any Letter of Credit for the
Borrower's account other than as a result of its gross negligence or
willful misconduct, as determined by a court of competent jurisdiction.
(ii) Assumption of Risk by Borrower. As between the Borrower, the
Issuing Bank, the Administrative Agent and the Banks, the Borrower assumes
all risks of the acts and omissions of, or misuse of the Letters of Credit
issued for such Borrower's account by, the respective beneficiaries of such
Letters of Credit. In furtherance and not in limitation of the foregoing,
the Issuing Bank, the Administrative Agent and the Banks shall not be
responsible for (i) 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 the Letters of Credit, even if it
should in fact prove to be in any or all respects invalid, insufficient,
inaccurate, fraudulent or forged, (ii) the validity or sufficiency of any
instrument transferring or assigning or purporting to transfer or assign a
Letter of Credit or the rights or benefits thereunder or proceeds thereof,
in whole or in part, which may prove to be invalid or ineffective for any
reason, (iii) failure of the beneficiary of a Letter of Credit to comply
duly with conditions required in order to draw upon such Letter of Credit,
(iv) 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, for errors in interpretation of technical terms,
(vi) any loss or delay in the transmission or otherwise of any document
required in order to make a drawing under any Letter of Credit or of the
proceeds thereof, (vii) the misapplication by the beneficiary of a Letter
of Credit of the proceeds of any drawing under such Letter of Credit; and
(viii) any consequences arising from causes beyond the control of the
Issuing Bank, the Administrative Agent and the Banks.
40
(iii) Exoneration. In furtherance and extension and not in limitation
of the specific provisions hereinabove set forth, any action taken or
omitted by the Issuing Bank under or in connection with the Letters of
Credit or any related certificates if taken or omitted in good faith and
with reasonable care, shall not put the Issuing Bank, the Administrative
Agent or any Bank under any resulting liability to the Borrower or relieve
the Borrower of any of its obligations hereunder to any such Person.
(j) Cash Collateral. If any Extended Letter of Credit is issued or
outstanding, the Borrower shall immediately on or prior to the Termination Date,
provide the Issuing Bank one or more back-up letters of credit, satisfactory to
the Issuing Bank in its sole discretion, in respect of such outstanding Letter
of Credit Obligations (the "Backup Letters of Credit") or Cash Collateral in an
amount equal to the then outstanding amount of all Letters of Credit Obligations
(such outstanding amount determined as of the Termination Date). For purposes
hereof, "Cash Collateral" means cash pledged and deposited with or delivered to
the Administrative Agent, for the benefit of the Issuing Bank and the Banks, as
collateral for such Letter of Credit Obligations, pursuant to documentation in
form and substance satisfactory to the Administrative Agent and the Issuing Bank
(which documents are hereby consented to by the Banks). The Borrower hereby
grants to the Administrative Agent, for the benefit of the Issuing Bank and the
Banks, a security interest in all such cash and all proceeds thereof. Cash
Collateral shall be maintained in blocked, non-interest bearing deposit accounts
at Wachovia. If at any time the Administrative Agent determines that any funds
held as Cash Collateral are subject to any right or claim of any Person other
than the Administrative Agent or that the total amount of such funds is less
than the aggregate outstanding amount of Letter of Credit Obligations, the
Borrower will forthwith, upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in deposit
accounts at Wachovia as aforesaid, an amount equal to the excess of (i) such
aggregate outstanding amount of such Letter of Credit Obligations over (ii) the
total amount of funds, if any, then held as Cash Collateral that the
Administrative Agent determines to be free and clear of any such right and
claim. Upon the drawing of any Letter of Credit for which funds are on deposit
as Cash Collateral, such funds shall be applied, to the extent permitted under
applicable law, to reimburse the Issuing Bank and may be applied to any other
Letter of Credit Obligations as and when due.
SECTION 2.17 Increase in Commitments.
(a) Provided there exists no Default, upon notice to the Administrative
Agent (which shall promptly notify the Banks), the Borrower may from time to
time, request an increase in the Aggregate Commitments by an aggregate amount
not exceeding $200,000,000; provided that (i) any such request for an increase
shall be in a minimum amount of $50,000,000, except in the case of the final
request, which may be for the entire remaining amount, and (ii) the Borrower may
make a maximum of three such requests. At the time of sending any such notice,
the Borrower (in consultation with the Administrative Agent) shall specify the
time period within which each Bank is requested to respond (which shall in no
event be less than ten Business Days from the date of delivery of such notice to
the Banks). Each Bank shall notify the Administrative Agent within such time
period whether or not it agrees to increase its Commitment and, if so, whether
by an amount equal to, greater than, or less than its pro rata share (based upon
its percentage of the current Total Commitments) of such requested increase. Any
Bank not responding within such time period shall be deemed to have declined to
increase its Commitment. The Administrative Agent shall notify the Borrower and
each Bank of the Banks'
41
responses to each request made hereunder. To achieve the full amount of a
requested increase, the Borrower may also invite additional Eligible Assignees
to become Banks pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent and its counsel. "Eligible Assignee"
means any (a) Bank; (b) an Affiliate of a Bank; (c) an Approved Fund; and (d)
any other Person (other than a natural person) approved by the Administrative
Agent, the Issuing Bank, and the Borrower; provided that notwithstanding the
foregoing, "Eligible Assignee" shall not include the Borrower or any of the
Borrower's Affiliates or Subsidiaries; and provided further, however, that an
Eligible Assignee shall include only a Bank, an Affiliate of a Bank or another
Person, which, through its Lending Offices, is capable of lending the applicable
Alternative Currencies to the Borrower without the imposition of any Taxes or
additional Taxes, as the case may be.
(b) If the Aggregate Commitments are increased in accordance with this
Section 2.17, the Administrative Agent and the Borrower shall determine the
effective date (the "Increase Effective Date") and the final allocation of such
increase. The Administrative Agent shall promptly notify the Borrower and the
Banks of the final allocation of such increase and the Increase Effective Date.
As a condition precedent to such increase, the Borrower shall deliver to the
Administrative Agent a certificate dated as of the Increase Effective Date (for
further distribution to each Bank) signed by a Responsible Officer of the
Borrower (i) certifying and attaching the resolutions adopted by the Borrower
approving such increase, and (ii) certifying that, before and after giving
effect to such increase, (A) the representations and warranties contained in
Article IV and the other Loan Documents are true and correct on and as of the
Increase Effective Date, except to the extent that such representations and
warranties (1) specifically refer to an earlier date, in which case they are
true and correct as of such earlier date, (2) are no longer true solely as a
result of the passage of time, and (3) are limited by exceptions thereto which
have been disclosed in writing to the Banks and which have been approved in
writing by the Required Banks, and except that for purposes of this Section
2.17, the representations and warranties contained in Section 4.12 shall be
deemed to refer to the most recent audited financial statements furnished
pursuant to Section 5.01(a)(ii), and (B) no Default exists. The Borrower shall
prepay any Loans outstanding on the Increase Effective Date (and pay any
additional amounts required pursuant to Article VIII) to the extent necessary to
keep the outstanding Loans ratable with any revised pro rata share (based upon
the Banks' percentages of the Total Commitments) arising from any nonratable
increase in the Commitments under this Section 2.17; provided that in the case
of any Syndicated Loans denominated in an Alternative Currency, no such
prepayment may be made other than on the last day of the applicable Interest
Period for such Loans, unless the Banks consent thereto.
(c) This Section shall supersede any provisions in Sections 9.04 or 9.05 to
the contrary.
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01 Conditions to Effectiveness. This Agreement shall become
effective upon satisfaction of each of the following conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such party or
(ii) a facsimile transmission
42
stating that such party has duly executed a counterpart of this Agreement and
sent such counterpart to the Administrative Agent;
(b) receipt by the Administrative Agent of a duly executed Syndicated Loan
Note and a duly executed Money Market Note for the account of each Bank
complying with the provisions of Section 2.05;
(c) an opinion letter of Xxxxxxx X. Xxxxx, Senior Associate General Counsel
of the Borrower, as counsel for the Borrower, dated as of the Closing Date,
substantially in the form of Exhibit E and covering such additional matters
relating to the transactions contemplated hereby as the Administrative Agent,
the Issuing Bank or any Bank may reasonably request;
(d) receipt by the Administrative Agent of a certificate (the "Closing
Certificate"), dated the Closing Date, substantially in the form of Exhibit H
hereto, signed by a principal financial officer of the Borrower, to the effect
that (i) no Default has occurred and is continuing on such date and (ii) the
representations and warranties of the Borrower contained in Article IV are true
on and as of such date;
(e) receipt by the Administrative Agent of all documents which the
Administrative Agent, the Issuing Bank or any Bank may reasonably request
relating to the existence of the Borrower, the corporate authority for and the
validity of this Agreement and the Notes, and any other matters relevant hereto,
all in form and substance satisfactory to the Administrative Agent, including
without limitation a certificate of incumbency of the Borrower (the "Secretary's
Certificate"), signed by the Secretary or an Assistant Secretary of the
Borrower, substantially in the form of Exhibit I hereto, certifying as to the
names, true signatures and incumbency of the officer or officers of the Borrower
authorized to execute and deliver the Loan Documents, and certified copies of
the following items: (i) the Borrower's Certificate of Incorporation, (ii) the
Borrower's Bylaws, (iii) a certificate of the Secretary of State of the State of
Florida as to the good standing of the Borrower as a Florida corporation, and
(iv) the action taken by the Board of Directors of the Borrower authorizing the
Borrower's execution, delivery and performance of this Agreement, the Notes and
the other Loan Documents to which the Borrower is a party;
(f) receipt by the Administrative Agent of evidence satisfactory to the
Administrative Agent, if any is required in addition to Section 2.15, that the
Borrower has repaid in full all amounts outstanding under the Existing Credit
Agreement, and that the Existing Credit Agreement is terminated; and
(g) receipt by the Administrative Agent of such other documents and items
as the Administrative Agent, the Issuing Bank, the Banks or their counsel may
reasonably request.
SECTION 3.02 Conditions to All Borrowings. The obligation of (i) each Bank
to make a Syndicated Loan on the occasion of each Borrowing, (ii) the Issuing
Bank to issue any Letters of Credit, or (iii) any Bank to make a Money Market
Loan, is subject to the satisfaction of the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02 or notification pursuant to Section 2.03(e) of
acceptance of one or more Money Market Quotes or receipt by the Issuing Bank of
a Letter of Credit Application Agreement pursuant to Section 2.16(c)(i);
43
(b) the fact that, immediately before and after such Borrowing or Letter of
Credit is issued, as applicable, no Default shall have occurred and be
continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement (excluding, however, representations
and warranties (i) set forth in Sections 4.08, 4.12(b) and 4.15, (ii) made as of
specific date, (iii) no longer true solely as a result of the passage of time,
and (iv) to the extent of exceptions thereto, which have been disclosed in
writing to the Administrative Agent and which have been approved in writing by
the Administrative Agent) shall be true on and as of the date of such Borrowing;
and
(d) the fact that, immediately after such Borrowing the terms and
conditions set forth in the proviso to Section 2.01 shall be satisfied.
Each Syndicated Borrowing, each Money Market Borrowing, the giving of each
Letter of Credit Application Agreement, the issuance of such requested Letter of
Credit and each Notice of Continuation or Conversion hereunder shall be deemed
to be a representation and warranty by the Borrower on the date of such
Borrowing or issuance as to the truth and accuracy of the facts specified in
paragraphs (b), (c) and (d) of this Section 3.02; provided, that (i) if a Notice
of Continuation or Conversion is to continue or convert to a Eurocurrency Loan,
such Notice of Continuation or Conversion shall be deemed to be such a
representation and warranty by the Borrower only as to the matters set forth in
paragraphs (b) and (d) above, and (ii) if a Notice of Continuation or Conversion
is to convert to a Base Rate Loan, such Notice of Continuation or Conversion
shall be deemed to be a representation and warranty by the Borrower only as to
the matters set forth in paragraph (d) above.
In addition, if the Borrower desires funding of a Eurocurrency Loan on the
Closing Date, the Administrative Agent shall have received, the requisite number
of days prior to the Closing Date, a funding indemnification letter satisfactory
to it, pursuant to which (i) the Administrative Agent and the Borrower shall
have agreed upon the interest rate, amount of Borrowing and Interest Period for
such Eurocurrency Loan, and (ii) the Borrower shall indemnify the Banks from any
loss or expense arising from the failure to close on the anticipated Closing
Date identified in such letter or the failure to borrow such Eurocurrency Loan
on such date.
SECTION 3.03 Determinations Under Section 3.01. For purposes of determining
compliance with the conditions specified in Section 3.01, each Bank and the
Issuing Bank shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Banks unless an officer
of the Administrative Agent responsible for the transactions contemplated by
this Agreement shall have received notice from such Bank or the Issuing Bank
prior to the Closing Date, specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent, the
Issuing Bank and each Bank that:
SECTION 4.01 Organization; Power; Qualification. Each of the Borrower and
its Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of
44
the jurisdiction of its incorporation or formation, has the power and authority
to own its properties and to carry on its business as now being and hereafter
proposed to be conducted and is duly qualified and authorized to do business in
each jurisdiction in which the character of its properties or the nature of its
business requires such qualification and authorization, except where the failure
to be so qualified and authorized could not reasonably be expected to have a
Material Adverse Effect.
SECTION 4.02 Subsidiaries and Capitalization. Each Material Subsidiary of
the Borrower as of the last day of the Fiscal Quarter most recently ended prior
to the Closing Date is listed on Schedule 4.02. As of the Closing Date, the
capitalization of the Borrower and its Material Subsidiaries consists of the
number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 4.02. All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable. As of the Closing Date, the shareholders of the Material
Subsidiaries of the Borrower and the number of shares owned by each are
described on Schedule 4.02. As of the Closing Date, there are no outstanding
stock purchase warrants, subscriptions, options, securities, instruments or
other rights of any type or nature whatsoever, which are convertible into,
exchangeable for or otherwise provide for or permit the issuance of capital
stock of the Borrower or its Material Subsidiaries, except as described on
Schedule 4.02.
SECTION 4.03 Authorization of Agreement, Loan Documents and Borrowing. The
Borrower has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution and delivery of this
Agreement, the Notes and each of the other Loan Documents and performance hereof
and thereof in accordance with their respective terms. The Notes, when executed
and delivered by the Borrower, will constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies. This Agreement and each of such other Loan
Documents have been duly executed and delivered by the duly authorized officers
of the Borrower and each such document constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect which affect the enforcement of creditors' rights in
general and the availability of equitable remedies.
SECTION 4.04 Compliance of Agreement, Loan Documents and Borrowing with
Laws, Etc. The execution and delivery by the Borrower of this Agreement, the
Notes and the other Loan Documents, the performance by the Borrower of this
Agreement, the Notes and the other Loan Documents in accordance with their
respective terms, the borrowings hereunder, and the transactions contemplated
hereby and thereby, do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its Material Subsidiaries,
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Material Subsidiaries or any indenture, agreement or
other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person or
(iii) result in or require
45
the creation or imposition of any Lien upon or with respect to any property now
owned or hereafter acquired by such Person other than Liens arising under the
Loan Documents
SECTION 4.05 Compliance with Law; Governmental Approvals. Each of the
Borrower and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding and (ii) is in compliance with each Governmental Approval
applicable to it and all other Applicable Laws relating to it or any of its
respective properties, except, in each case under clause (i) and clause (ii) of
this paragraph, to the extent that (A) such requirement or compliance is
contested in good faith by appropriate proceedings or (B) the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.06 Tax Returns and Payments. Each of the Borrower and its
Material Subsidiaries has duly filed or caused to be filed all federal and state
income tax returns and all other material state, local and other tax returns
required by Applicable Law to be filed, and has paid, or made adequate provision
for the payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable, other than any of the foregoing for which the
amount or validity is currently being contested in good faith by appropriate
proceedings and with respect to which reserves in conformity with GAAP have been
provided on the books of the Borrower or its Material Subsidiaries, as the case
may be. No Governmental Authority has asserted any Lien or other claim against
the Borrower or any Material Subsidiary thereof with respect to unpaid taxes
which has not been discharged or resolved, other than ordinary liens on real
property for taxes not yet past due or for taxes being contested in good faith
by appropriate proceedings during the pendency of which the enforcement of such
Lien is stayed and for which the Borrower and its Material Subsidiaries have
established reserves in accordance with GAAP. The charges, accruals and reserves
on the books of the Borrower or any of its Material Subsidiaries in respect of
federal, state, local and other taxes for all Fiscal Years and portions thereof
since the organization of the Borrower and any of its Material Subsidiaries are
in the judgment of the Borrower adequate, and the Borrower does not anticipate
any additional taxes or assessments in excess of such charges, accruals and
reserves previously recorded for any of such years.
SECTION 4.07 Intellectual Property Matters. Each of the Borrower and its
Material Subsidiaries owns or possesses all lawful rights to use all franchises,
licenses, patents, patent rights or licenses, patent applications, copyrights,
copyright applications, trademarks, trademark rights, trade names, trade name
rights and rights with respect to the foregoing which are required to conduct
its business, except where the failure to do so could not reasonably be expected
to have a Material Adverse Effect. No event has occurred which permits, or after
notice or lapse of time or both would permit, the revocation or termination of
any such rights, and to Borrower's knowledge, neither the Borrower nor any
Material Subsidiary thereof is liable to any Person for infringement of any such
rights as a result of its business operations, except where the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
SECTION 4.08 Environmental Matters. Except for the matters described on
Schedule 4.08 as of the Closing Date and except for any other matter which could
not be reasonably expected to have a Material Adverse Effect, (i) the properties
of the Borrower and its
46
Material Subsidiaries are in material compliance with all applicable
Environmental Laws, and to the best knowledge of the Borrower and its Material
Subsidiaries there is no release or threatened release of Hazardous Materials
at, under or about such properties or such operations which could interfere with
the continued operation of such properties or materially impair the fair
saleable value thereof and (ii) neither the Borrower nor any of its Material
Subsidiaries has received any written notice of any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of its properties or the operations conducted in connection therewith, nor does
the Borrower or any of its Material Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
SECTION 4.09 ERISA. The Borrower and each member of the Controlled Group
are in material compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to all Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. As of the Closing
Date, other than as set forth on Schedule 4.09, each Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by the IRS to be
so qualified, and each trust related to such Plan has been determined to be
exempt under Section 501(a) of the Code. No reportable event for which notice is
required under ERISA and not otherwise waived by the PBGC has occurred as to
which the Borrower or any member of the Controlled Group was required to file a
report with the PBGC and no material liability (including without limitation any
withdrawal liability under Section 4201 of ERISA) has been incurred by the
Borrower or any member of the Controlled Group which remains unsatisfied for any
taxes or penalties with respect to any Plan or any Multiemployer Plan.
SECTION 4.10 Margin Stock. Neither the Borrower nor any Subsidiary thereof
is engaged principally or as one of its activities in the business of extending
credit for the purpose of "purchasing" or "carrying" any Margin Stock. No part
of the proceeds of the Loan will be used for purchasing or carrying Margin Stock
or for any purpose which violates, or which would be inconsistent with, the
provisions of Regulation T, U or X of such Board of Governors.
SECTION 4.11 Government Regulation. Neither the Borrower nor any Subsidiary
thereof is an "investment company" or a company "controlled" by an "investment
company" (as each such term is defined or used in the Investment Company Act of
1940, as amended) and neither the Borrower nor any Subsidiary thereof is, or
after giving effect to the Loan will be, subject to regulation under the Public
Utility Holding Company Act of 1935 or the Interstate Commerce Act, each as
amended, or any other Applicable Law which limits its ability to incur or
consummate the transactions contemplated hereby.
SECTION 4.12 Financial Statements.
(a) The audited combined balance sheet of the Borrower and its Consolidated
Subsidiaries as of May 29, 2005, and the related statements of income and
retained earnings and cash flows for the Fiscal Year then ended, copies of which
have been furnished to the Administrative Agent, the Issuing Bank and each of
the Banks, fairly represent the assets, liabilities and financial position of
the Borrower and its Consolidated Subsidiaries as at such date, and the results
of the operations and changes of financial position for the period then ended.
All such financial statements, including any related schedules and notes
thereto, have been
47
prepared in accordance with GAAP. As of the date of such financial statements,
the Borrower and its Consolidated Subsidiaries have no indebtedness, obligation
or other unusual forward or long-term commitment that is not fairly reflected in
the foregoing financial statements or in the notes thereto.
(b) Since May 29, 2005, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
SECTION 4.13 Title to Properties. Each of the Borrower and its Material
Subsidiaries has such marketable title to the real property owned by it as is
necessary or desirable to the conduct of its business and valid and legal title
to all of its personal property and assets, including, but not limited to, those
assets reflected on the balance sheets of the Borrower and its Consolidated
Subsidiaries included in the financial statements referred to in Section
4.12(a), except as disclosed in Form 10-K for the Borrower's Fiscal Year ended
May 29, 2005, filed by the Borrower with the SEC, and such assets which have
been disposed of by the Borrower or its Subsidiaries subsequent to such date in
the ordinary course of business or as otherwise expressly permitted hereunder.
SECTION 4.14 Debt and Liens. Schedule 4.14 is a complete and correct list
of each item of Consolidated Total Debt of the Borrower and its Consolidated
Subsidiaries in excess of $100,000 (setting forth with respect to each such item
the amount and stated maturity of Consolidated Total Debt outstanding, the
identity of the Person to whom such Consolidated Total Debt is owed and the date
such Consolidated Total Debt was incurred) and each Lien securing any such Debt
(setting forth with respect to each such Lien the property subject to such Lien)
as of the Closing Date; provided that the aggregate amount of Consolidated Total
Debt excluded from this sentence by virtue of being $100,000 or less shall not
exceed $5,000,000. The Borrower and its Consolidated Subsidiaries have complied
in all material respects with all of the terms of such Debt and Liens and all
instruments and agreements relating thereto, and no default or event of default,
or event or condition which with notice or lapse of time or both would
constitute such a default or event of default on the part of the Borrower or its
Consolidated Subsidiaries exists with respect to any such Debt or Lien. None of
the properties and assets of the Borrower or any Subsidiary thereof is subject
to any Lien, except Liens permitted pursuant to Section 5.13.
SECTION 4.15 Litigation. Except for the matters described on Schedule 4.15
as of the Closing Date or disclosed in the Borrower's Annual Report on Form 10-K
for the Fiscal Year ended May 29, 2005 or other reports filed after the Closing
Date with the Securities and Exchange Commission pursuant to the Securities
Exchange Act of 1934 and except for any other matter which could not be
reasonably expected to have a Material Adverse Effect, there are no actions,
suits or proceedings pending nor, to the best knowledge of the Borrower,
threatened against or in any other way relating adversely to or affecting the
Borrower or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
Authority.
SECTION 4.16 Absence of Defaults. No event has occurred or is continuing
which constitutes a Default, or which constitutes, or which with the passage of
time or giving of notice or both would constitute, a default or event of default
by the Borrower or any Subsidiary thereof under any judgment, decree or order
involving an amount owed by the Borrower or a
48
Subsidiary in excess of $10,000,000 by which the Borrower or its Subsidiaries or
any of their respective properties may be bound or which would require the
Borrower or its Subsidiaries to make any payment thereunder prior to the
scheduled maturity date therefor.
SECTION 4.17 Accuracy and Completeness of Information. All written
information, reports and other papers and data produced by or on behalf of the
Borrower or any Subsidiary thereof and furnished to the Administrative Agent,
the Issuing Bank and each of the Banks (including without limitation a copy of
Form 10-K for the Borrower's Fiscal Year ended May 29, 2005, filed by the
Borrower with the SEC) were, at the time the same were so furnished, complete
and correct in all material respects and, when taken as a whole, do not and will
not contain any untrue statement of a material fact or omit to state a material
fact necessary to make the statements contained therein not misleading in the
light of the circumstances in which they were made. The documents and other
written information furnished or written statements made to the Administrative
Agent, the Issuing Bank or any of the Banks by the Borrower or any Subsidiary
thereof in connection with the negotiation, preparation or execution of this
Agreement and the Loan Documents, when taken as a whole, do not contain or will
not contain any untrue statement of a fact material to the business, operations,
property or creditworthiness of the Borrower or its Subsidiaries or omit or will
omit to state a fact necessary in order to make the statements contained therein
not misleading in light of the circumstances in which they were made.
SECTION 4.18 Insolvency. After giving effect to the execution and delivery
of the Loan Documents and the making of the Loans under this Agreement, the
Borrower will not be "insolvent," as defined in ss. 101 of Title 11 of the
United States Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as each may be
amended from time to time, or be unable to pay its debts generally as such debts
become due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
SECTION 4.19 Insurance. The Borrower will maintain, and will cause each of
its Subsidiaries to maintain (either in the name of the Borrower or in such
Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
ARTICLE V
COVENANTS
The Borrower covenants and agrees that, so long as any Bank has any
Commitment or any Bank or any Issuing Bank has any amount payable under this
Agreement or any other Loan Document remains unpaid other than indemnification
obligations which survive the termination of this Agreement or any other Loan
Document:
SECTION 5.01 Financial Information and Notices. The Borrower will deliver
to each of the Banks and the Issuing Bank:
49
(a) Financial Statements.
(i) As soon as practicable and in any event within sixty (60) days
after the end of each Fiscal Quarter, an unaudited Consolidated balance
sheet of the Borrower and its Consolidated Subsidiaries as of the close of
such Fiscal Quarter and unaudited Consolidated condensed statements of
income, retained earnings and cash flows for the Fiscal Quarter then ended
and that portion of the Fiscal Year then ended, including the condensed
notes thereto, all in reasonable detail setting forth in comparative form
the corresponding figures for the preceding Fiscal Year and prepared by the
Borrower in accordance with GAAP and, if applicable, containing disclosure
of the effect on the financial position or results of operations of any
change in the application of accounting principles and practices during the
period, and certified by the chief financial officer or treasurer of the
Borrower to present fairly in all material respects the financial condition
of the Borrower and its Consolidated Subsidiaries as of their respective
dates and the results of operations of the Borrower and its Consolidated
Subsidiaries for the respective periods then ended, subject to normal year
end adjustments.
(ii) As soon as practicable and in any event within ninety (90) days
after the end of each Fiscal Year, an audited Consolidated balance sheet of
the Borrower and its Consolidated Subsidiaries as of the close of such
Fiscal Year and audited Consolidated statements of income, retained
earnings and cash flows for the Fiscal Year then ended, including the notes
thereto, all in reasonable detail setting forth in comparative form the
corresponding figures for the preceding Fiscal Year and prepared in
accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the year, and
accompanied by an opinion thereon from KPMG Peat Marwick or other
nationally-recognized independent public accounting firm acceptable to the
Administrative Agent that is not qualified with respect to scope
limitations imposed by the Borrower or any of its Consolidated Subsidiaries
or with respect to accounting principles followed by the Borrower or any of
its Consolidated Subsidiaries not in accordance with GAAP.
(iii) To the extent not delivered pursuant to clause (i) or (ii) of
this Section 5.01(a), promptly but in any event within ten (10) Business
Days after the filing thereof, a copy of (A) each report or other filing
made by the Borrower or its Consolidated Subsidiaries with the SEC and
required by the SEC to be delivered to the shareholders of the Borrower,
and (B) each report made by the Borrower or any of its Consolidated
Subsidiaries to the SEC on Form 8-K and each final registration statement
of the Borrower or any of its Consolidated Subsidiaries filed with the SEC
other than on Form S-8.
(iv) Such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Consolidated
Subsidiaries as the Administrative Agent, the Issuing Bank or any Bank may
reasonably request.
(b) Officer's Compliance Certificate. At each time financial statements are
delivered pursuant to clause (i) or (ii) of Section 5.01(a), a certificate of
the chief financial officer or
50
treasurer of the Borrower in the form of Exhibit J attached hereto (an
"Officer's Compliance Certificate"):
(i) stating that such officer has reviewed such financial statements
and such statements fairly present the financial condition of the Borrower
and its Subsidiaries as of the dates indicated and the results of its
operations and cash flows for the periods indicated;
(ii) stating that to such officer's knowledge, based on a reasonable
examination sufficient to enable him to make an informed statement, no
Default, or, if such is not the case, specifying such Default and its
nature, when it occurred, whether it is continuing and the steps being
taken by the Borrower with respect to such Default;
(iii) setting forth a list of the Material Subsidiaries and the
percent of total revenues of the Borrower and its Subsidiaries and percent
of total assets of the Borrower and its Subsidiaries which each such
Material Subsidiary represents; and
(iv) setting forth as at the end of such Fiscal Quarter or Fiscal
Year, as the case may be, the calculations required to establish whether or
not the Borrower was in compliance with the financial covenant set forth in
Section 5.19 hereof as at the end of each respective period.
(c) Notice of Litigation and Other Matters. Promptly (but in no event later
than ten (10) days (unless otherwise specified herein) after an officer of the
Borrower obtains knowledge thereof) telephonic and written notice of:
(i) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any
court or before any arbitrator against or involving the Borrower or any
Subsidiary thereof or any of their respective properties, assets or
businesses which in any such case could reasonably be expected to have a
Material Adverse Effect;
(ii) any notice of any violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority which could reasonably
be expected to have a Material Adverse Effect including, without
limitation, any notice of violation of Environmental Laws which in any such
case could reasonably be expected to have a Material Adverse Effect;
(iii) any labor controversy that has resulted in, or threatens to
result in, a strike or other work action against the Borrower or any
Subsidiary thereof which in any such case could reasonably be expected to
have a Material Adverse Effect;
(iv) any attachment, judgment, lien, levy or order in an amount or
with respect to assets of the Borrower or any of its Subsidiaries exceeding
$25,000,000 that may be rendered, assessed or threatened against the
Borrower or any Subsidiary thereof;
(v) any Default;
51
(vi) any reportable event for which notice is required under ERISA and
not otherwise waived by the PBGC or "prohibited transaction," as such term
is defined in Section 406 of ERISA or Section 4975 of the Code, in
connection with any Plan or any trust created thereunder which could
reasonably be expected to result in liability of the Borrower or any member
of the Controlled Group in an aggregate amount exceeding $25,000,000, along
with a description of the nature thereof, what action the Borrower has
taken, is taking or proposes to take with respect thereto and, when known,
any action taken or threatened by the IRS, the DOL or the PBGC with respect
thereto; and
(vii) any event which makes any of the representations set forth in
Article IV inaccurate in any manner which could reasonably be expected to
have a Material Adverse Effect.
(d) Notice of Change of Debt Rating. Promptly, but in no event later than
five (5) Business Days after an officer of the Borrower obtains knowledge
thereof, telephonic and written notice of any change in the Borrower's Debt
Rating.
(e) Accuracy of Information. All written information, reports, statements
and other papers and data furnished by or on behalf of the Borrower to the
Administrative Agent, the Issuing Bank or any of the Banks (other than financial
forecasts) whether pursuant to this Section 5.01 or any other provision of this
Agreement or any of the other Loan Documents, shall be, at the time the same is
so furnished, complete and correct in all material respects to the extent
necessary to give the Administrative Agent, the Issuing Bank and the Banks
complete, true and accurate knowledge of the subject matter based on the
Borrower's knowledge thereof.
SECTION 5.02 Preservation of Corporate Existence and Related Matters.
Except as permitted by Section 5.14, the Borrower shall, and shall cause each
Subsidiary to, preserve and maintain its separate corporate existence and all
rights, franchises, licenses and privileges necessary to the conduct of its
business and qualify and remain qualified as a foreign corporation and
authorized to do business in each jurisdiction in which it is required to be so
qualified, except where the failure to be so qualified and authorized could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.03 Maintenance of Property. The Borrower will, and will cause
each Material Subsidiary to, protect and preserve all properties useful in and
material to its business, including copyrights, patents, trade names and
trademarks; maintain in good working order and condition all buildings,
equipment and other tangible real and personal property, ordinary wear and tear
excepted; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 5.04 Insurance. The Borrower will, and will cause each Subsidiary
to, maintain insurance with financially sound and reputable insurance companies,
or systems of self-insurance, against such risks and in such amounts as are
customarily maintained by similar businesses and as may be required by
Applicable Law, and deliver to the Administrative Agent, the Issuing Bank or any
Bank upon its request a detailed list of the insurance then in effect, stating
the names of the insurance companies, the amounts and rates of the insurance,
the dates of the expiration thereof and the properties and risks covered
thereby.
52
SECTION 5.05 Accounting Methods and Financial Records. The Borrower will
maintain a system of accounting, and keep such books, records and accounts
(which shall be true and complete in all material respects) as may be required
or as may be necessary to permit the preparation of financial statements in
accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 5.06 Payment and Performance of Obligations. The Borrower will, and
will cause each Subsidiary to, pay and perform all obligations under this
Agreement, the Notes and the other Loan Documents, and pay or perform (i) all
taxes, assessments and other governmental charges that may be levied or assessed
upon it or any of its property and (ii) all other indebtedness, obligations and
liabilities in accordance with customary trade practices, if the failure to pay
or perform as described in clause (i) or (ii) of this Section could reasonably
be expected to have Material Adverse Effect; provided that the Borrower or such
Subsidiary may contest any item described in clause (i) and (ii) of this Section
5.06, in good faith so long as adequate reserves are maintained with respect
thereto in accordance with GAAP.
SECTION 5.07 Compliance with Laws, Approvals and Agreements. The Borrower
will, and will cause each Subsidiary to, observe and remain in compliance with
all Applicable Laws; maintain in full force and effect all Governmental
Approvals; and observe and remain in compliance with all agreements (including
the Distribution Agreement and Tax Agreement as described in Form 10/A of the
Borrower effective May 5, 1995, as filed with the SEC), except where the failure
to be in compliance with Applicable Laws and such agreements or to maintain
Governmental Approvals could not reasonably be expected to have a Material
Adverse Effect.
SECTION 5.08 Compliance with ERISA. In addition to and without limiting the
generality of Section 5.07, the Borrower will, and will cause each Subsidiary
to, (i) comply in all material respects with all applicable provisions of ERISA
and the regulations and published interpretations thereunder with respect to all
Plans, (ii) not take any action or fail to take action the result of which could
be a liability to the PBGC or to a Multiemployer Plan, and not participate in
any prohibited transaction that could result in any civil penalty under ERISA or
tax under the Code and (iii) furnish to the Administrative Agent, the Issuing
Bank or any Bank upon request such additional information about any Plan or
Multiemployer Plan as may be reasonably requested by the Administrative Agent,
the Issuing Bank or such Bank.
SECTION 5.09 Conduct of Business. The Borrower will, and will cause each
Subsidiary to, engage only in businesses in substantially the same fields as the
businesses conducted on the Closing Date and in lines of business reasonably
related thereto.
SECTION 5.10 Loans or Advances. Neither the Borrower nor any of its
Consolidated Subsidiaries shall make loans or advances to any Person, except
loans and advances the aggregate amount of which, when aggregated with the
aggregate amount of Permitted Investments and Permitted Transfers made after the
Closing Date, does not exceed the Test Amount, provided that after giving effect
to the making of any loans and advances permitted by this Section, no Default
shall have occurred and be continuing.
SECTION 5.11 Investments. Neither the Borrower nor any of its Consolidated
Subsidiaries shall make Investments in any Person except as permitted by Section
5.10 and
53
except Investments (i) made pursuant to the Investment Policy, (ii) constituting
Permitted Acquisitions, or (iii) not otherwise permitted by clause (i) or (ii)
of this Section the aggregate amount of which, when aggregated with the
aggregate amount of Permitted Loans and Advances and Permitted Transfers made
after the Closing Date, does not exceed the Test Amount; provided that after
giving effect to the making of any Investments permitted by clauses (i) through
(iii) of this Section, no Default shall have occurred and be continuing.
SECTION 5.12 Visits and Inspections. The Borrower will, and will cause each
Subsidiary to, permit representatives of the Administrative Agent, the Issuing
Bank or any Bank, from time to time during regular business hours and upon
reasonable notice, to visit and inspect its properties; inspect, audit and make
extracts from its books, records and files, including, but not limited to,
management letters prepared by independent accountants; and discuss with its
principal officers, and its independent accountants, its business, assets,
liabilities, financial condition, results of operations and business prospects.
SECTION 5.13 Limitations on Liens. Neither the Borrower nor any of its
Subsidiaries will create, incur, assume or suffer to exist, any Lien on or with
respect to any of its assets or properties (including shares of capital stock),
real or personal, whether now owned or hereafter acquired, except:
(a) Existing Liens described on Schedule 4.14 and any subsequent extensions
or renewals of such Liens if the principal amount of the indebtedness secured
thereby is not increased and no additional property is made subject thereto;
(b) Liens for taxes, assessments and other governmental charges or levies
not yet due or as to which the period of grace, if any, related thereto has not
expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(c) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (A) which are not overdue for a period of more
than sixty (60) days, (B) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP or (C) which have been bonded for the full amount thereof;
(d) Liens consisting of deposits or pledges made in the ordinary course of
business (A) in connection with or to secure a payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or (B) to
secure the performance of letters of credit, bids, tenders, sales contracts,
leases, statutory obligations, surety, appeal and performance bonds and other
similar obligations, in each case not incurred in connection with the borrowing
of money or the payment of the deferred purchase price of property;
(e) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property,
which in the aggregate are not substantial in amount and which do not, in any
case, detract from the value of such property or impair the use thereof in the
ordinary conduct of business;
(f) Liens granted to or in favor of the Administrative Agent for the
benefit of the Banks and/or the Issuing Bank;
54
(g) purchase money Liens and Liens securing Capital Leases; provided that
the Lien attaches only to the asset being purchased or leased and does not
exceed 100% of the purchase price or fair market value of such asset;
(h) attachment, judgment and similar Liens arising in connection with court
proceedings other than any such Lien which would create an Event of Default
under Section 6.01(i);
(i) Liens on assets of Persons which become Subsidiaries after the date of
this Agreement; provided that such Liens existed at the time the respective
Persons became Subsidiaries and were not created in anticipation thereof;
(j) any interest or title of a lessor under any lease;
(k) licenses, leases or subleases granted to other Persons not interfering
in any material respect with the business of the Borrower or any of its Material
Subsidiaries;
(l) Liens arising solely by virtue of any statutory or common law provision
relating to bankers' liens, rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a creditor depository
institution; provided that (A) such deposit account is not a dedicated cash
collateral account and is not subject to restrictions against access by the
Borrower or any of its Subsidiaries in excess of those set forth by regulations
promulgated by the Federal Reserve Board and (B) such deposit account is not
intended by the Borrower or any of its Subsidiaries to provide collateral to the
depository institution; and
(m) other Liens on assets or other properties of the Borrower and its
Subsidiaries; provided that the sum of the aggregate Consolidated Total Debt
secured by such other Liens (exclusive of Consolidated Total Debt secured by
Liens permitted by clauses (a) through (j) of this Section 5.13) shall not
exceed an amount equal 10% of Consolidated Tangible Net Worth at any time.
SECTION 5.14 Limitations on Mergers, Liquidations and Sales of Assets.
Neither the Borrower nor any of its Subsidiaries will merge, consolidate or
enter into any similar combination with any other Person; liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution); or sell its assets
in one or more series of transactions except:
(a) the Borrower and its Subsidiaries may sell assets if the aggregate
amount of assets sold after the Closing Date, when aggregated with the aggregate
amount of Permitted Investments and Permitted Loans and Advances made after the
Closing Date, does not exceed the Test Amount;
(b) any Subsidiary may merge with any other Subsidiary or with the Borrower
(if the Borrower is the entity surviving such merger);
(c) the Borrower may merge with any Person as long as the Borrower is the
surviving Person and no Default shall have occurred before and after giving
effect to such merger;
(d) the Borrower and its Material Subsidiaries may effect sales, leases,
transfers or other dispositions of equipment and inventory of the Borrower and
its Material Subsidiaries in the ordinary course of business;
55
(e) the investments, acquisitions and transfers or dispositions of
properties permitted pursuant to Sections 5.10 and 5.11;
(f) the sale or issuance of any Material Subsidiary's capital stock to the
Borrower or any Material Subsidiary; and
(g) any Subsidiary may sell or transfer all or a substantial portion of its
assets to the Borrower or any other Subsidiary.
SECTION 5.15 Certain Accounting Changes. The Borrower will not make any
material change in its accounting treatment and reporting practices except as
required by or as otherwise consistent with GAAP.
SECTION 5.16 Change in Fiscal Year. The Borrower will not change its Fiscal
Year without the consent of the Required Banks, which consent shall not be
unreasonably withheld.
SECTION 5.17 Restrictive Agreements. Neither the Borrower nor any of its
Subsidiaries will enter into any agreement which causes or permits to exist or
become effective any encumbrance or restriction on the ability of any Subsidiary
to (i) pay dividends or make any other distributions on its capital stock to the
Borrower or any Subsidiary, (ii) pay any indebtedness or other obligation owed
to the Borrower or any Subsidiary, (iii) make any loans or advances to the
Borrower or any Subsidiary or (iv) transfer any of its properties or assets to
the Borrower or any Subsidiary.
SECTION 5.18 Acquisitions. Neither the Borrower nor any of its Subsidiaries
shall make any Acquisitions, provided that Permitted Acquisitions may be made
if, after giving effect thereto, no Default would be caused thereby (giving
effect thereto on a pro forma basis as to financial covenants).
SECTION 5.19 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The ratio of Consolidated Total Debt to Consolidated Total
Capitalization shall at all times be less than 0.65 to 1.00.
SECTION 5.20 Limitation on Priority Debt. The Borrower shall not permit the
outstanding principal amount of Priority Debt to exceed, in the aggregate, more
than 10% of Consolidated Tangible Net Worth at any time.
ARTICLE VI
DEFAULTS
SECTION 6.01 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of, or any
interest on, any Loan or shall fail to pay within three (3) Business Days of the
date when due any fee or other amount payable hereunder; or
56
(b) the Borrower shall fail to observe or perform any covenant contained in
Section 5.01(c)(v), 5.01(d), 5.02, 5.05, or 5.10 to 5.20, inclusive; or
(c) the Borrower shall fail to observe or perform any covenant or agreement
contained or incorporated by reference in this Agreement (other than those
covered by clause (a) or (b) above) and such failure shall not have been cured
within thirty (30) days after the earlier of (i) the first day on which the
Borrower has knowledge of such failure or (ii) written notice thereof has been
given to the Borrower by the Administrative Agent at the request of any Bank or
the Issuing Bank; or
(d) any representation, warranty, certification or statement made or deemed
made by the Borrower in Article IV of this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect or misleading in any material respect when made (or
deemed made); or
(e) the Borrower or any Subsidiary shall (i) default in the payment of any
item or items of Consolidated Total Debt outstanding of the Borrower or any
Subsidiary (other than the Notes) the aggregate outstanding amount of which is
in excess of $25,000,000 beyond the period of grace, if any, provided in the
instrument or agreement under which such Debt was created or (ii) default in the
observance or performance of any other agreement or condition relating to any
item or items of Consolidated Total Debt outstanding of the Borrower or any
Subsidiary (other than the Notes) the aggregate outstanding amount of which is
in excess of $25,000,000 or contained in any instrument or agreement evidencing,
securing or relating thereto or any other event shall occur or condition exist,
which results in the acceleration of the maturity of Consolidated Total Debt
outstanding of the Borrower or any Subsidiary or the mandatory prepayment or
purchase of such Debt by the Borrower (or its designee) or such Subsidiary (or
its designee) prior to the scheduled maturity thereof, or enables (or, with the
giving of notice or lapse of time or both, would enable) the holders of such
Debt or any Person acting on such holders' behalf to accelerate the maturity
thereof or require the mandatory prepayment or purchase thereof prior to the
scheduled maturity thereof, without regard to whether such holders or other
Person shall have exercised or waived their right to do so; or
(f) the Borrower or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(g) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) days; or an
order for relief shall be entered
57
against the Borrower or any Subsidiary under the federal bankruptcy laws as now
or hereafter in effect; or
(h) the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or the Borrower or
any other member of the Controlled Group shall enter into, contribute or be
obligated to contribute to, terminate or incur any withdrawal liability with
respect to, a Multiemployer Plan; or
(i) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against the Borrower
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of thirty (30) days; or
(j) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and in either
case such lien shall remain undischarged for a period of twenty-five (25) days
after the date of filing and the aggregate amount or amounts secured by any such
lien or liens shall exceed $1,000,000; or
(k) (i) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
twenty percent (20%) or more of the outstanding shares of the voting stock of
the Borrower; or (ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were not either (A) directors of the
Borrower as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B);
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by written notice to the Borrower terminate the
Commitments and they shall thereupon terminate, (ii) if requested by the
Required Banks, by written notice to the Borrower require the Borrower to
immediately provide Cash Collateral or Backup Letters of Credit in an amount to
equal the then Outstanding Amount of the Letter of Credit Obligations and (iii)
if requested by the Required Banks, by written notice to the Borrower declare
the Notes (together with accrued interest thereon) and all other amounts payable
hereunder and under the other Loan Documents to be, and the Notes (together will
all accrued interest thereon) and all other amounts payable hereunder and under
the other Loan Documents shall thereupon become, immediately due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower, together with interest at the Default Rate
accruing on the
58
principal amount thereof from and after the date of such Event of Default;
provided that if any Event of Default specified in clause (f) or (g) above
occurs with respect to the Borrower, without any notice to the Borrower or any
other act by the Administrative Agent, the Issuing Bank or the Banks, the
Commitments shall thereupon automatically terminate and the Notes (together with
accrued interest thereon) and all other amounts payable hereunder and under the
other Loan Documents shall automatically and without notice become immediately
due and payable without presentment, together with interest thereon at the
Default Rate accruing on the principal amount thereof from and after the date of
such Event of Default, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower. Notwithstanding the foregoing, the
Administrative Agent shall have available to it all other remedies at law or
equity.
ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment, Powers and Immunities. The Issuing Bank and each
Bank hereby irrevocably appoints and authorizes the Administrative Agent to act
as its Administrative Agent hereunder and under the other Loan Documents with
such powers as are specifically delegated to the Administrative Agent by the
terms hereof and thereof, together with such other powers as are reasonably
incidental thereto. The Administrative Agent: (a) shall have no duties or
responsibilities except as expressly set forth in this Agreement and the other
Loan Documents, and shall not by reason of this Agreement or any other Loan
Document be a trustee for the Issuing Bank or any Bank; (b) makes no warranty or
representation to the Issuing Bank or any Bank and shall not be responsible to
the Issuing Bank or the Banks for any recitals, statements, representations or
warranties contained in this Agreement or any other Loan Document, or in any
certificate or other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the validity,
effectiveness, genuineness, enforceability or sufficiency of this Agreement or
any other Loan Document or any other document referred to or provided for herein
or therein or for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or conduct any
litigation or collection proceedings hereunder or under any other Loan Document
except to the extent requested by the Required Banks, and then only on terms and
conditions satisfactory to the Administrative Agent, and (d) shall not be
responsible for any action taken or omitted to be taken by it hereunder or under
any other Loan Document or any other document or instrument referred to or
provided for herein or therein or in connection herewith or therewith, except
for its own gross negligence or willful misconduct. The Administrative Agent may
employ agents and attorneys-in-fact and shall not be responsible for the
negligence or misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The provisions of this Article VII are solely for the
benefit of the Administrative Agent, the Issuing Bank and the Banks, and the
Borrower shall not have any rights as a third party beneficiary of any of the
provisions hereof. In performing its functions and duties under this Agreement
and under the other Loan Documents, the Administrative Agent shall act solely as
agent of the Issuing Bank and the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for the Borrower regardless of whether a Default has occurred and is
continuing. The duties of the Administrative Agent shall be ministerial and
administrative in nature, and the Administrative Agent shall not have by reason
of this Agreement or any other Loan Document a fiduciary relationship in respect
of the Issuing Bank or any Bank.
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SECTION 7.02 Reliance by Administrative Agent. The Administrative Agent
shall be entitled to rely upon, and shall not incur any liability for relying
upon, any certification, notice or other communication (including any thereof by
telephone, telefax, telegram or cable) believed by it to be genuine and correct
and to have been signed or sent by or on behalf of the proper Person or Persons,
and upon advice and statements of legal counsel, independent accountants or
other experts selected by the Administrative Agent. As to any matters not
expressly provided for by this Agreement or any other Loan Document, the
Administrative Agent shall in all cases be fully protected in acting, or in
refraining from acting, hereunder and thereunder in accordance with instructions
signed by the Required Banks, and such instructions of the Required Banks in any
action taken or failure to act pursuant thereto shall be binding on all of the
Banks.
SECTION 7.03 Defaults. The Administrative Agent shall not be deemed to have
knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on the Loans) unless the Administrative Agent has
received notice from the Issuing Bank, a Bank or the Borrower specifying such
Default and stating that such notice is a "Notice of Default". In the event that
the Administrative Agent receives such a notice of the occurrence of a Default,
the Administrative Agent shall give prompt notice thereof to the Issuing Bank
and the Banks. The Administrative Agent shall (subject to Section 9.05) take
such action with respect to such Default as shall be directed by the Required
Banks, provided that, unless and until the Administrative Agent shall have
received such directions, the Administrative Agent may (but shall not be
obligated to) take such action, or refrain from taking such action, with respect
to such Default as it shall deem advisable in the best interests of the Issuing
Bank and the Banks.
SECTION 7.04 Rights of Administrative Agent and its Affiliates as a Bank.
With respect to its Commitment and the Loans and any Letter of Credit made or
issued by it and any of its Affiliates, Wachovia (and any successor acting as
Administrative Agent hereunder) in its capacity as a Bank and the Issuing Bank
hereunder, and any Affiliate of Wachovia in its capacity as a Bank and the
Issuing Bank hereunder, shall have the same rights and powers hereunder as any
other Bank and may exercise the same as though it were not acting as the
Administrative Agent, and the term "Bank" or "Banks" shall, unless the context
otherwise indicates, include Wachovia in its individual capacity and any
Affiliate of the Administrative Agent in its individual capacity. Wachovia (and
any successor acting as Administrative Agent hereunder) and any Affiliate
thereof may (without having to account therefor to any Bank) accept deposits
from, lend money to and generally engage in any kind of banking, trust or other
business with the Borrower (and any of the Borrower's Affiliates) as if it were
not acting as the Administrative Agent and the Issuing Bank, and Wachovia and
any Affiliate thereof may accept fees and other consideration from the Borrower
or any Subsidiary or Affiliate thereof for services in connection with this
Agreement or any other Loan Document or otherwise without having to account for
the same to the Banks.
SECTION 7.05 Indemnification. Each Bank severally agrees to indemnify the
Administrative Agent, to the extent the Administrative Agent shall not have been
reimbursed by the Borrower, ratably in accordance with its Commitment, for any
and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or any other Loan Document or
any other documents
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contemplated by or referred to herein or therein or the transactions
contemplated hereby or thereby (excluding, unless a Default has occurred and is
continuing, the normal administrative costs and expenses incident to the
performance of its agency duties hereunder) or the enforcement of any of the
terms hereof or thereof or any such other documents; provided, however, that no
Bank shall be liable for any of the foregoing to the extent they arise from the
gross negligence or willful misconduct of the Administrative Agent. If any
indemnity furnished to the Administrative Agent for any purpose shall, in the
opinion of the Administrative Agent, be insufficient or become impaired, the
Administrative Agent may call for additional indemnity and cease, or not
commence, to do the acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06 CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT SHALL NOT BE
RESPONSIBLE OR LIABLE TO ANY BANK, THE ISSUING BANK, THE BORROWER OR ANY OTHER
PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY
BE ALLEGED AS A RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF
THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07 Payee of Note Treated as Owner. The Administrative Agent may
deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent and the provisions of
Section 9.07(c) have been satisfied. Any requests, authority or consent of any
Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note or of any Note or Notes
issued in exchange therefor or replacement thereof.
SECTION 7.08 Non-Reliance on Administrative Agent and Other Banks. The
Issuing Bank and each Bank agrees that it has, independently and without
reliance on the Administrative Agent, the Issuing Bank or any other Bank, and
based on such documents and information as it has deemed appropriate, made its
own credit analysis of the Borrower and decision to enter into this Agreement
and that it will, independently and without reliance upon the Administrative
Agent, the Issuing Bank or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
analysis and decisions in taking or not taking action under this Agreement or
any of the other Loan Documents. The Administrative Agent shall not be required
to keep itself (or the Issuing Bank or any Bank) informed as to the performance
or observance by the Borrower of this Agreement or any of the other Loan
Documents or any other document referred to or provided for herein or therein or
to inspect the properties or books of the Borrower or any other Person. Except
for notices, reports and other documents and information expressly required to
be furnished to the Issuing Bank and/or the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide the Issuing Bank or any Bank with any
credit or other information concerning the affairs, financial condition or
business of the Borrower or any other Person (or any of their Affiliates) which
may come into the possession of the Administrative Agent.
SECTION 7.09 Failure to Act. Except for action expressly required of the
Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent
61
shall in all cases be fully justified in failing or refusing to act hereunder
and thereunder unless it shall receive further assurances to its satisfaction by
the Banks of their indemnification obligations under Section 7.05 against any
and all liability and expense which may be incurred by the Administrative Agent
by reason of taking, continuing to take, or failing to take any such action.
SECTION 7.10 Resignation of Administrative Agent. The Administrative Agent
may resign at any time by giving notice thereof to the Issuing Bank, the Banks
and the Borrower; provided that any such resignation by the Administrative Agent
shall also constitute its resignation of Wachovia as the Issuing Bank. Upon any
such resignation, the Required Banks shall have the right to appoint a successor
Administrative Agent with the consent of the Borrower (unless a Default has
occurred and is then existing, in which case the consent of the Borrower shall
not be required), which consent shall not be unreasonably withheld or delayed.
If no successor Administrative Agent shall have been so appointed by the
Required Banks and shall have accepted such appointment within thirty (30) days
after the retiring Administrative Agent's resignation, such resignation shall
nonetheless become effective and (i) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder (except that in the case of
any collateral security held by the Administrative Agent on behalf of the Banks
or the Issuing Bank under any of the Loan Documents, the retiring Administrative
Agent shall continue to hold such collateral security until such time as a
successor Administrative Agent is appointed) and (ii) the Required Banks shall
perform the duties of the Administrative Agent (and all payments and
communications provided to be made by, to or through the Administrative Agent
shall instead be made by or to each Bank directly) until such time as the
Required Banks appoint a successor agent as provided for above in this
paragraph. Upon the acceptance of any appointment as Administrative Agent
hereunder by a successor Administrative Agent, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring (or
retired) Administrative Agent shall be discharged from its duties and
obligations hereunder if not already discharged therefrom as provided above in
this paragraph. After any retiring Administrative Agent's resignation hereunder
as Administrative Agent, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder.
SECTION 7.11 Other Agents. The Borrower, the Issuing Bank and each other
Bank hereby acknowledge that any Bank designated as an "Agent" on the signature
pages hereof (other than the Administrative Agent) shall not have any
obligations, duties or liabilities hereunder other than in its capacity as a
Bank or Issuing Bank as applicable.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01 Basis for Determining Interest Rate Inadequate or Unfair. If
on or prior to the first day of any Interest Period:
(a) the Administrative Agent determines that deposits in any Applicable
Currency (in the applicable amounts) are not being offered in the relevant
market for such Interest Period, or
62
(b) the Required Banks advise the Administrative Agent that the London
Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding Eurocurrency
Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Eurocurrency Loans specified in such notice, or
to permit continuations of or conversions into Eurocurrency Loans, shall be
suspended. Unless the Borrower notifies the Administrative Agent at least two
(2) Business Days before the date of any Borrowing of Eurocurrency Loans for
which a Notice of Borrowing has previously been given, or continuation or
conversion into such Eurocurrency Loans for which a Notice of Continuation or
Conversion has previously been given, that it elects not to borrow or so
continue or convert on such date, such Borrowing shall instead be made as or
continue to be a Base Rate Borrowing denominated in the Applicable Currency, or
such Eurocurrency Loan shall be converted to a Base Rate Loan denominated in the
Applicable Currency.
SECTION 8.02 Illegality. If, after the date hereof, the adoption of any
Applicable Law, or any change in any existing or future Applicable Law, or any
change in the interpretation or administration thereof by any Governmental
Authority, in each case having general application to financial institutions of
the same classification as an affected Bank or Issuing Bank (any such event
being referred to as a "Change of Law"), or compliance by any Bank or the
Issuing Bank (or such Bank's or Issuing Bank's Lending Office) with any request
or directive (whether or not having the force of law) of any Governmental
Authority shall make it unlawful or impossible for any Bank or the Issuing Bank
(or such Bank's or Issuing Bank's Lending Office) to make, maintain or fund its
Eurocurrency Loans or Letters of Credit in any Applicable Currency or purchase
or sell or take deposits of any Applicable Currency in the applicable interbank
market, and such Bank or Issuing Bank shall so notify the Administrative Agent,
the Administrative Agent shall forthwith give notice thereof to the other Banks,
the Issuing Bank and the Borrower, whereupon until such Bank or the Issuing Bank
notifies the Borrower and the Administrative Agent that the circumstances giving
rise to such suspension no longer exist, the obligation of such Bank or Issuing
Bank to make Letters of Credit or to make or permit continuations of or
conversions into Eurocurrency Loans in such Applicable Currency shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section 8.02, such Issuing Bank or Bank shall designate a different Lending
Office if such designation will avoid the need for giving such notice and will
not, in the judgment of such Issuing Bank or Bank, be otherwise disadvantageous
to such Issuing Bank or Bank. If such Bank shall determine that it may not
lawfully continue to maintain and fund any of its outstanding Eurocurrency Loans
to maturity and shall so specify in such notice, the Borrower shall immediately
prepay in full the then outstanding principal amount of each Eurocurrency Loan
of such Bank, together with accrued interest thereon and any amount due such
Bank pursuant to Section 8.05(a). Concurrently with prepaying each such
Eurocurrency Loan, the Borrower shall borrow a Base Rate Loan in an equal
principal amount from such Bank (on which interest and principal shall be
payable contemporaneously with the related Eurocurrency Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
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SECTION 8.03 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by the Issuing
Bank or any Bank (or the Issuing Bank's or any Bank's Lending Office) with any
request or directive (whether or not having the force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding, with respect to any Letter of Credit, any
Eurocurrency Loan, any such requirement included in an applicable
Eurocurrency Reserve Percentage) against assets of, deposits with or for
the account of, or credit extended by, the Issuing Bank or any Bank (or the
Issuing Bank's or any Bank's Lending Office); or
(ii) shall impose on the Issuing Bank or any Bank (or the Issuing
Bank's or any Bank's Lending Office) or the London interbank market any
other condition affecting its Eurocurrency Loans, its Notes or its
obligation to make Eurocurrency Loans, any Letter of Credit or its
participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Bank or Bank (or such Issuing Bank's or Bank's Lending Office) of making or
maintaining any Loan or Letter of Credit, or to reduce the amount of any sum
received or receivable by such Bank (or its Lending Office) under this Agreement
or under its Notes with respect thereto, by an amount deemed by such Issuing
Bank or Bank to be material, then, within fifteen (15) days after written demand
by such Issuing Bank or Bank (with a copy to the Administrative Agent)
specifying in reasonable detail such Issuing Bank's or Bank's calculations as to
the amount owed to such Issuing Bank or Bank, the Borrower shall pay to such
Issuing Bank or Bank such additional amount or amounts as will compensate such
Issuing Bank or Bank for such increased cost or reduction, provided that the
Borrower shall not be obligated to pay such amount which is attributable to any
period of time occurring more than one hundred eighty (180) days prior to the
date of receipt by the Borrower of such demand.
(b) If any Issuing Bank or Bank shall have determined that after the date
hereof the adoption of any Applicable Law regarding capital adequacy, or any
change in any existing or future Applicable Law, or any change in the
interpretation or administration thereof, or compliance by the Issuing Bank or
any Bank (or the Issuing Bank's or any Bank's Lending Office or the bank holding
company of which such Issuing Bank or Bank is a subsidiary) with any request or
directive regarding capital adequacy (whether or not having the force of law) of
any Governmental Authority, has or would have the effect of reducing the rate of
return on such Issuing Bank or Bank's (or such bank holding company's) capital
as a consequence of its obligations hereunder to a level below that which such
Issuing Bank or Bank (or such bank holding company) could have achieved but for
such adoption, change or compliance (taking into consideration such Issuing Bank
or Bank's (or such bank holding company's) policies with respect to capital
adequacy) by an amount deemed by such Issuing Bank or Bank to be material, then
from time to time, within fifteen (15) days after written demand by such Issuing
Bank or Bank specifying in reasonable detail such Issuing Bank or Bank's
calculations as to the amount owed to such Issuing Bank or Bank, the Borrower
shall pay to such Issuing Bank or Bank such additional amount or amounts as will
compensate such Issuing Bank or Bank for such reduction,
64
provided that the Borrower shall not be obligated to pay any such amount which
is attributable to any period of time occurring more than one hundred eight
(180) days prior to the date of receipt by the Borrower of such demand.
(c) The Issuing Bank and each Bank will promptly notify the Borrower and
the Administrative Agent of any event of which it has knowledge, occurring after
the date hereof, which will entitle such Issuing Bank or Bank to compensation
pursuant to this Section 8.03 and will designate a different Lending Office if
such designation will avoid the need for, or reduce the amount of, such
compensation and will not, in the judgment of such Issuing Bank or Bank, be
otherwise disadvantageous to such Issuing Bank or Bank. A certificate of the
Issuing Bank or any Bank claiming compensation under this Section and setting
forth the additional amount or amounts to be paid to it hereunder shall be
conclusive in the absence of manifest error. In determining such amount, such
Issuing Bank or Bank may use any reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION 8.04 Base Rate Loans Substituted for Affected Eurocurrency Loans.
If (i) the obligation of any Bank to make or maintain Eurocurrency Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least five (5)
Business Days' prior notice to such Bank through the Administrative Agent, have
elected that the provisions of this Section shall apply to such Bank, then,
unless and until such Bank notifies the Borrower that the circumstances giving
rise to such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such Bank as, or permitted
to be continued as or converted into, Eurocurrency Loans shall instead be made
as, continue to be or converted into Base Rate Loans (in all cases interest and
principal on such Loans shall be payable contemporaneously with the related
Eurocurrency Loans of the other Banks), and
(b) after each of its Eurocurrency Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Eurocurrency Loans
shall be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
SECTION 8.05 Compensation. Upon the request of any Bank, delivered to the
Borrower and the Administrative Agent, the Borrower shall pay to such Bank such
amount or amounts as shall compensate such Bank for any loss, cost or expense
(including any foreign exchange loss) incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.10, Section 2.11,
Section 8.02 or otherwise) of a Eurocurrency Loan on a date other than the last
day of an Interest Period for such Eurocurrency Loan;
65
(b) any failure by the Borrower to prepay a Eurocurrency Loan on the date
for such prepayment specified in the relevant notice of prepayment hereunder;
(c) any failure by the Borrower to borrow a Eurocurrency Loan on the date
for the Eurocurrency Borrowing of which such Eurocurrency Loan is a part
specified in the applicable Notice of Borrowing delivered pursuant to Section
2.02; or
(d) any failure by the Borrower to make payment of any Loan denominated in
an Alternative Currency on its scheduled due date or any payment thereof in a
different currency;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Eurocurrency Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Eurocurrency Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Eurocurrency Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on deposits in Dollars of comparable amounts having terms
comparable to such period placed with it by leading banks in the London
interbank market.
SECTION 8.06 Replacement of Banks. If any Bank (a "Notice Bank") makes
demand for amounts owed under Section 8.03 (other than due to any change in the
Eurocurrency Reserve Percentage), or gives notice under Section 8.02 that it can
no longer participate in Eurocurrency Loans, then in each case the Borrower
shall have the right, if no Default or Event of Default exists, and subject to
the terms and conditions set forth in Section 9.07(c), to designate an assignee
(a "Replacement Bank") to purchase the Notice Bank's share of outstanding Loans
and all other obligations hereunder and to assume the Notice Bank's obligations
to the Borrower under this Agreement; provided, that, any Replacement Bank must
be reasonably acceptable to the Administrative Agent and the Required Banks
(and, in any event, may not be an Affiliate of the Borrower). Subject to the
foregoing, the Notice Bank agrees to assign without recourse to the Replacement
Bank its share of outstanding Loans and its Commitment, and to delegate to the
Replacement Bank its obligations to the Borrower under this Agreement and its
future obligations to the Administrative Agent under this Agreement. Upon such
sale and delegation by the Notice Bank and the purchase and assumption by the
Replacement Bank, and compliance with the provisions of Section 9.07(c), the
Notice Bank shall cease to be a "Bank" hereunder and the Replacement Bank shall
become a "Bank" under this Agreement; provided, however, that any Notice Bank
shall continue to be entitled to the indemnification provisions contained
elsewhere herein.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices.
(a) All notices, requests and other communications to any party hereunder
shall be in writing (including facsimile transmission or similar writing) and
shall be given to such party at its address or facsimile number, as follows
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(i) If to the Borrower, to it at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx,
Xxxxxxx 00000, Attention: Xxxxxxx X. Xxxxx, III, Senior Vice President and
Treasurer, Facsimile number: (000) 000-0000, Telephone number: (407)
245-5142, with a copy to 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx 00000,
Attention: Xxxxx X. Xxxxxx, Senior Vice President and General Counsel,
Facsimile number: (000) 000-0000, Telephone number: (000) 000-0000;
(ii) If to the Administrative Agent, (i) any Notice of Borrowing or
Notice of Continuation or Conversion shall be sent to it at Wachovia Bank,
National Association, One Wachovia Center, 000 Xxxxx Xxxxxxx Xxxxxx,
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000, Attention: Syndication Agency
Services, Facsimile number: (000) 000-0000, (ii) any other notice, request
or other communication shall be sent to it at Wachovia Capital Markets,
LLC, 000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx, XX 0760, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, III, Credit Products - Private
Portfolio Management, Facsimile number: (000) 000-0000, and (iii) any
payment to be made in an Alternative Currency shall be sent to it at
Wachovia Bank, National Association, 0 Xxxxxxxxxxx, Xxxxxx, Xxxxxxx,
XX0X-0000;
(iii) If to the Issuing Bank, to it at Wachovia Bank, National
Association, 000 Xxxxx Xxxxxxx Xxxxxx, 0xx Xxxxx, XX 0760, Xxxxxxxxx, Xxxxx
Xxxxxxxx 00000, Attention: Xxxxx X. Xxxxxxx, III, Credit Products - Private
Portfolio Management, Facsimile number: (000) 000-0000, Telephone number:
(000) 000-0000; and
(iv) If to a Bank, to such Bank at its address (or facsimile number)
set forth in its Administrative Questionnaire as completed and actually
delivered by such Bank to the Administrative Agent;
or such other address or facsimile number as such party may hereafter specify
for the purpose by notice to each other party. Each such notice, request or
other communication shall be effective (A) if given by facsimile, when such
facsimile is transmitted to the facsimile number specified in this Section and
the facsimile machine used by the sender provides a written confirmation that
such facsimile has been so transmitted or receipt of such facsimile transmission
is otherwise confirmed, (B) if given by mail, seventy-two (72) hours after such
communication is deposited in the mails with first class postage prepaid,
addressed as aforesaid, and (C) if given by any other means, when delivered at
the address specified in this Section; provided that notices to the
Administrative Agent under Article II or Article VIII shall not be effective
until received.
(b) Electronic Communications. Notices and other communications to the
Banks and the Issuing Bank hereunder may be delivered or furnished by electronic
communication (including e-mail and Internet or intranet websites) pursuant to
procedures approved by the Administrative Agent, provided that the foregoing
shall not apply to notices to any Bank or the Issuing Bank pursuant to Article
II if such Bank or the Issuing Bank, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under such
Article by electronic communication. Each Bank that is a party to this Agreement
as of the Closing Date acknowledges and agrees that it is capable of receiving
notices under Article II by electronic communication. The Administrative Agent
or the Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant
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to procedures approved by it, provided that approval of such procedures may be
limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other
communications sent to an e-mail address shall be deemed received upon the
sender's receipt of an acknowledgement from the intended recipient (such as by
the "return receipt requested" function, as available, return e-mail or other
written acknowledgement), provided that if such notice or other communication is
not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on
the next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon the
deemed receipt by the intended recipient at its e-mail address as described in
the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
SECTION 9.02 No Waivers. No failure or delay by the Administrative Agent,
the Issuing Bank or any Bank in exercising any right, power or privilege
hereunder or under any Note or other Loan Document shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 9.03 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of special counsel for
the Administrative Agent, in connection with the preparation of this Agreement
and the other Loan Documents, any waiver or consent hereunder or thereunder or
any amendment hereof or thereof or any Default or alleged Default hereunder or
thereunder and (ii) if a Default occurs, all out-of-pocket expenses incurred by
the Administrative Agent, the Issuing Bank or any Bank, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents.
(b) The Borrower shall indemnify the Administrative Agent, the Issuing Bank
and each Bank against any transfer taxes, documentary taxes, assessments or
charges made by any Authority by reason of the execution and delivery of this
Agreement or the other Loan Documents.
(c) The Borrower shall indemnify the Administrative Agent, the Issuing
Bank, the Banks and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them harmless against, any
and all losses, liabilities, claims or damages to which any of them may become
subject, insofar as such losses, liabilities, claims or damages arise out of or
result from any transaction contemplated by this Agreement or any other Loan
Document or any actual or proposed use by the Borrower of the proceeds of any
extension of credit by the Issuing Bank or any Bank hereunder or breach by the
Borrower of this Agreement or any other Loan Document or from any investigation,
litigation (including, without limitation, any actions taken by the
Administrative Agent, the Issuing Bank or any of the Banks to enforce this
Agreement or any of the other Loan Documents) or other proceeding (including,
without
68
limitation, any threatened investigation or proceeding) relating to the
foregoing, and the Borrower shall reimburse the Administrative Agent, the
Issuing Bank and each Bank, and each Affiliate thereof and their respective
directors, officers, employees and agents, upon demand for any expenses
(including, without limitation, legal fees) incurred in connection with any such
investigation or proceeding; but excluding any such losses, liabilities, claims,
damages or expenses which are determined by a final, non-appealable judgment of
a court to have been incurred by reason of the gross negligence or willful
misconduct of the Person to be indemnified. In the case of any investigation,
litigation or other proceeding to which the indemnity in this Section 9.03
applies, such indemnity shall be effective whether or not such investigation,
litigation or proceeding is brought by the Borrower or any Subsidiary or
Affiliate thereof, or any of their respective 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 any transaction contemplated by
this Agreement or any other Loan Document is consummated. A Person seeking to be
indemnified under this Section 9.03 shall notify the Borrower of any event
arising out of any legal action or proceeding requiring indemnification within
thirty (30) days following such Person's receipt of notice of commencement of
such legal action or proceeding and the Borrower shall be given the opportunity
to participate (at its own cost and expense) in the defense of, and any
settlement negotiations entered into in connection with, any such legal action
or proceeding. Without in any way limiting Section 7.06, the Borrower agrees, on
its own behalf and on behalf of each of its Subsidiaries and Affiliates, not to
assert any claim against the Administrative Agent, the Issuing Bank, any Bank,
any of their respective Affiliates, or any of their respective directors,
officers, employees, attorneys, agents and advisors, on any theory of liability,
for special, indirect, consequential or punitive damages arising out of
otherwise relating to this Agreement or any of the other Loan Documents, any of
the transactions contemplated herein or the actual or proposed use of the
proceeds of any of the Loans or the Letters of Credit.
SECTION 9.04 Setoffs; Sharing of Set-Offs.
(a) The Borrower hereby grants to the Administrative Agent, the Issuing
Bank and each Bank a lien for all indebtedness and obligations owing to them
from the Borrower upon all deposits or deposit accounts, of any kind, or any
interest in any deposits or deposit accounts thereof, now or hereafter pledged,
mortgaged, transferred or assigned to the Administrative Agent, the Issuing Bank
or any such Bank or otherwise in the possession or control of the Administrative
Agent, the Issuing Bank or any such Bank for any purpose for the account or
benefit of the Borrower and including any balance of any deposit account or of
any credit of the Borrower with the Administrative Agent, the Issuing Bank or
any such Bank, whether now existing or hereafter established, authorizing the
Administrative Agent, the Issuing Bank and each Bank at any time or times with
or without prior notice to apply such balances or any part thereof to such of
the indebtedness and obligations owing by the Borrower to such Bank, the Issuing
Bank and/or the Administrative Agent then past due and in such amounts as they
may elect, and whether or not the collateral, if any, or the responsibility of
other Persons primarily, secondarily or otherwise liable may be deemed adequate.
The Administrative Agent, the Issuing Bank or any such Bank, as applicable,
shall promptly notify Borrower of such application; provided, however, that
failure to give such notice shall not affect the validity or legality of such
application. For the purposes of this paragraph, all remittances and property
shall be deemed to be in the possession of the Administrative Agent, the Issuing
Bank or any such Bank as soon as the same may be put in transit to it by mail or
carrier or by other bailee.
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(b) Each Bank agrees that if it shall, by exercising any right of set-off
or counterclaim or resort to collateral security or otherwise, receive payment
of a proportion of the aggregate amount of principal and interest owing with
respect to the Notes held by it which is greater than the proportion received by
any other Bank in respect of the aggregate amount of all principal and interest
owing with respect to the Notes held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the Notes
held by the other Banks owing to such other Banks, and/or such other adjustments
shall be made, as may be required so that all such payments of principal and
interest with respect to the Notes held by the Banks owing to such other Banks
shall be shared by the Banks pro rata; provided that (i) nothing in this Section
shall impair the right of any Bank to exercise any right of set-off or
counterclaim it may have and to apply the amount subject to such exercise to the
payment of indebtedness of the Borrower other than its indebtedness under the
Notes, and (ii) if all or any portion of such payment received by the purchasing
Bank is thereafter recovered from such purchasing Bank, such purchase from each
other Bank shall be rescinded and such other Bank shall repay to the purchasing
Bank the purchase price of such participation to the extent of such recovery
together with an amount equal to such other Bank's ratable share (according to
the proportion of (x) the amount of such other Bank's required repayment to (y)
the total amount so recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees, to the fullest extent it may effectively do so
under Applicable Law, that any holder of a participation in a Note, whether or
not acquired pursuant to the foregoing arrangements, may exercise rights of
set-off or counterclaim and other rights with respect to such participation as
fully as if such holder of a participation were a direct creditor of the
Borrower in the amount of such participation.
(c) Prior to the occurrence of a Default, the Administrative Agent shall
apply all payments and prepayments in respect of the obligations of the Borrower
under this Agreement or any other Loan Document in such order as shall be
specified by the Borrower. After the occurrence of a Default, the Administrative
Agent shall, unless otherwise specified at the direction of the Required Banks
which direction shall be consistent with the last two sentences of this
paragraph (c), apply all payments and prepayments in respect of any obligations
of the Borrower under this Agreement or any other Loan Document and all proceeds
of collateral, if any, in the following order:
(i) first, to pay interest on and then principal of any portion of the
Loans which the Administrative Agent may have advanced on behalf of any
Bank for which the Administrative Agent has not then been reimbursed by
such Bank or the Borrower;
(ii) second, to pay obligations of the Borrower in respect of any
fees, expenses, reimbursements or indemnities then due to the
Administrative Agent;
(iii) third, to pay obligations of the Borrower in respect of any
fees, expenses, reimbursements or indemnities then due to the Banks or the
Issuing Bank;
(iv) fourth, to pay interest due in respect of Loans and Reimbursement
Obligations;
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(v) fifth, to the ratable payment or prepayment of principal
outstanding on Loans and Reimbursement Obligations in such order as the
Administrative Agent may determine in its sole discretion;
(vi) sixth, to provide Cash Collateral, if required pursuant to
Section 6.01; and
(vii) seventh, to the ratable payment of all other obligations of the
Borrower.
Unless otherwise designated (which designation shall only be applicable
prior to the occurrence of a Default) by the Borrower, all principal payments in
respect of Loans shall be applied first, to repay outstanding Base Rate Loans,
and then to repay outstanding Eurocurrency Loans with those Loans which have
earlier expiring Interest Periods being repaid prior to those which have later
expiring Interest Periods. The order of priority set forth in clauses (i) and
(ii) of this paragraph (c) and the related provisions of this Agreement are set
forth solely to determine the rights and priorities of the Administrative Agent.
The order of priority set forth in clauses (iii) through (vii) of this paragraph
(c) may at any time and from time to time be changed by the Required Banks
without necessity of notice to or consent of or approval by the Borrower, or any
other Person; provided that the order of payments in respect of fees payable to
the Issuing Bank may be changed only with the prior written consent of the
Issuing Bank. The order of priority set forth in clauses (i) through (ii) of
this paragraph (c) may be changed only with the prior written consent of the
Administrative Agent.
SECTION 9.05 Amendments and Waivers. Any provision of this Agreement, the
Notes or any other Loan Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower and the Required
Banks (and, if the rights or duties of the Administrative Agent are affected
thereby, by the Administrative Agent and, if the rights or duties of the Issuing
Bank are affected thereby, by the Issuing Bank); provided that no such amendment
or waiver shall, unless signed by each Bank directly affected thereby, (i)
increase the Commitment of any Bank or subject any Bank to any additional
obligation, (ii) reduce the principal of or reduce the rate of interest on any
Loan, Reimbursement Obligation or any fees hereunder (other than fees payable to
the Administrative Agent), (iii) extend the date fixed for any payment of
principal of or interest on any Loan, Reimbursement Obligation or any fees
hereunder, (iv) reduce the amount of principal, interest or fees due on any date
fixed for the payment thereof, (v) change the percentage of the Commitments or
of the aggregate unpaid principal amount of the Notes, or the percentage of
Banks, which shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement, (vi) change the
manner of application of any payments made under this Agreement or the Notes,
(vii) release or substitute all or any substantial part of the collateral (if
any) held as security for the Loans or the Letter of Credit Obligations, or
(viii) release any guaranty given to support payment of the Loans or the Letter
of Credit Obligations or (ix) change Section 9.07(c) without the consent of each
Bank that has assigned all or a portion of its Commitment, Loans or
participation in any Letter of Credit to one or more Approved Funds.
SECTION 9.06 Independence of Covenants. All covenants under this Agreement
and the other Loan Documents shall be given independent effect so that if a
particular action or condition is not permitted by any such covenant, the fact
that it would be permitted by an exception to, or would be otherwise allowed by,
another covenant shall not avoid the occurrence of a Default if such action is
taken or such condition exists.
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SECTION 9.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent, the Issuing Bank and each Bank and no Bank may assign
or otherwise transfer any of its rights or obligations hereunder except (i) to
an assignee in accordance with the provisions of paragraph (c) of this Section,
(ii) by way of participation in accordance with the provisions of paragraph (b)
of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other
attempted assignment or transfer by any party hereto shall be null and void).
Nothing in this Agreement, expressed or implied, shall be construed to confer
upon any Person (other than the parties hereto, their respective successors and
assigns permitted hereby, Participants to the extent provided in paragraph (b)
of this Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Bank and the Banks) any
legal or equitable right, remedy or claim under or by reason of this Agreement.
(b) Any Bank may at any time, without the consent of, or notice to, the
Borrower or the Administrative Agent, sell participations to any Person (other
than a natural person or the Borrower or any of the Borrower's Affiliates or
Subsidiaries) (each, a "Participant") in all or a portion of such Bank's rights
and/or obligations under this Agreement (including all or a portion of its
Commitment and/or the Loans owing to it); provided that (i) such Bank's
obligations under this Agreement shall remain unchanged, (ii) such Bank shall
remain solely responsible to the other parties hereto for the performance of
such obligations and (iii) the Borrower, the Administrative Agent and the Banks,
Issuing Bank shall continue to deal solely and directly with such Bank in
connection with such Bank's rights and obligations under this Agreement.
Any agreement or instrument pursuant to which a Bank sells such a participation
shall provide that such Bank shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Bank will not, without the consent of the Participant, agree to any
amendment, modification or waiver described in the proviso to Section 9.05 that
affects such Participant. Subject to paragraph (e) of this Section, the Borrower
agrees that each Participant shall be entitled to the benefits of Article VIII
to the same extent as if it were a Bank and had acquired its interest by
assignment pursuant to paragraph (c) of this Section.
A Participant shall not be entitled to receive any greater payment under Article
VIII than the applicable Bank would have been entitled to receive with respect
to the participation sold to such Participant, unless the sale of the
participation to such Participant is made with the Borrower's prior written
consent. A Participant that would be a Foreign Bank if it were a Bank shall not
be entitled to the benefits of Section 2.13(c) unless the Borrower is notified
of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Sections 2.13(d) and 2.13(e) as
though it were a Bank.
(c) Upon written notice to the Borrower delivered at least one (1) Business
Day prior to the proposed date of assignment, any Bank may at any time assign to
one or more assignees
72
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the Loans at the time owing to it);
provided that any such assignment shall be subject to the following conditions:
(i) in the case of an assignment of the entire remaining amount of the
assigning Bank's Commitment and the Loans at the time owing to it or in the
case of an assignment to a Bank, an Affiliate of a Bank or an Approved
Fund, no minimum amount need be assigned; and
(ii) in any case not described in paragraph (c)(i) of this Section,
the aggregate amount of the Commitment (which for this purpose includes
Loans outstanding thereunder) or, if the applicable Commitment is not then
in effect, the principal outstanding balance of the Loans of the assigning
Bank subject to each such assignment (determined as of the date the
Assignment and Assumption with respect to such assignment is delivered to
the Administrative Agent or, if "Trade Date" is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $5,000,000,
unless each of the Administrative Agent and, so long as no Default has
occurred and is continuing, the Borrower otherwise consent (each such
consent not to be unreasonably withheld or delayed).
(iii) Each partial assignment shall be made as an assignment of a
proportionate part of all the assigning Bank's rights and obligations under
this Agreement with respect to the Loan or the Commitment assigned, except
that this clause (ii) shall not apply to rights in respect of Money Market
Loans.
(iv) No consent shall be required for any assignment except to the
extent required by paragraph (c)(ii) of this Section and, in addition:
(A) the consent of the Borrower (such consent not to be
unreasonably withheld or delayed) shall be required unless (x) Default
has occurred and is continuing at the time of such assignment or (y)
such assignment is to a Bank, an Affiliate of a Bank or an Approved
Fund;
(B) the consent of the Administrative Agent (such consent not to
be unreasonably withheld or delayed) shall be required for assignments
in respect of (i) a Commitment if such assignment is to a Person that
is not a Bank with a Commitment in respect of such facility, an
Affiliate of such Bank or an Approved Fund with respect to such Bank
or (ii) the Loans (if no Commitments exist) to a Person who is not a
Bank, an Affiliate of a Bank or an Approved Fund; and
(C) the consent of the Issuing Bank (such consent not to be
unreasonably withheld or delayed) shall be required for any assignment
that increases the obligation of the assignee to participate in
exposure under one or more Letters of Credit (whether or not then
outstanding).
(v) The parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Assumption, together with a
processing and
73
recordation fee of $3,500 for each assignment, and the assignee, if it is
not a Bank, shall deliver to the Administrative Agent an Administrative
Questionnaire.
(vi) No such assignment shall be made to the Borrower or any of the
Borrower's Affiliates or Subsidiaries.
(vii) No such assignment may be made to any of the Borrower's
competitors or any of their respective Affiliates.
(viii) No such assignment shall be made to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant
to paragraph (g) of this Section, from and after the effective date specified in
each Assignment and Assumption, the assignee thereunder shall be a party to this
Agreement and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Bank under this Agreement, and
the assigning Bank thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this
Agreement (and, in the case of an Assignment and Assumption covering all of the
assigning Bank's rights and obligations under this Agreement, such Bank shall
cease to be a party hereto) but shall continue to be entitled to the benefits of
Article VIII and Section 9.03 with respect to facts and circumstances occurring
prior to the effective date of such assignment. Any assignment or transfer by a
Bank of rights or obligations under this Agreement that does not comply with
this paragraph shall be treated for purposes of this Agreement as a sale by such
Bank of a participation in such rights and obligations in accordance with
paragraph (d) of this Section.
(d) Subject to the provisions of Section 9.08, the Borrower authorizes each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or Section 8.03 requiring such Bank to designate a different Lending Office
under certain circumstances or at a time when the circumstances giving rise to
such greater payment did not exist.
(f) Any Bank may at any time pledge or assign a security interest in all or
any portion of its rights under this Agreement to secure obligations of such
Bank, including any pledge or assignment to secure obligations to a Federal
Reserve Bank; provided that no such pledge or assignment shall release such Bank
from any of its obligations hereunder or substitute any such pledgee or assignee
for such Bank as a party hereto.
(g) The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Charlotte, North Carolina
a copy of each Assignment and Assumption delivered to it and a register for the
recordation of the names and
74
addresses of the Banks, and the Commitments of, and principal amounts of the
Loans owing to, each Bank pursuant to the terms hereof from time to time (the
"Register"). The entries in the Register shall be conclusive, and the Borrower,
the Administrative Agent and the Banks may treat each Person whose name is
recorded in the Register pursuant to the terms hereof as a Bank hereunder for
all purposes of this Agreement, notwithstanding notice to the contrary. The
Register shall be available for inspection by the Borrower and any Bank, at any
reasonable time and from time to time upon reasonable prior notice.
SECTION 9.08 Confidentiality. The Issuing Bank and each Bank agrees to
exercise its best efforts to keep any information delivered or made available by
the Borrower to it which is clearly indicated to be confidential information,
confidential from anyone other than persons employed or retained by such Issuing
Bank or Bank who are or are expected to become engaged in evaluating, approving,
structuring or administering the Loans; provided, however, that nothing herein
shall prevent the Issuing Bank or any Bank from disclosing such information (i)
to the Issuing Bank (as applicable) or any other Bank or to an Affiliate of such
Issuing Bank or Bank, (ii) upon the order of any court or administrative agency,
(iii) upon the request or demand of any regulatory agency or authority having
jurisdiction over such Issuing Bank or Bank, (iv) which has been publicly
disclosed, (v) to the extent reasonably required in connection with any
litigation to which the Administrative Agent, the Issuing Bank, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, or under any
Hedging Agreement to which the Issuing Bank, any Bank or their respective
Affiliates may be a party or the credit support therefor (vii) to such Issuing
Bank's or Bank's legal counsel and independent auditors and (viii) to any actual
or proposed Participant, Assignee or other Transferee of all or part of its
rights hereunder which has agreed in writing to be bound by the provisions of
this Section 9.08; provided that should disclosure of any such confidential
information be required by virtue of clause (ii) or (v) of this sentence, to the
extent permitted by Applicable Law, the relevant Issuing Bank or any relevant
Bank shall promptly notify the Borrower of the same and shall reasonably
cooperate in any effort of the Borrower to maintain the confidentiality of such
confidential information, including to allow the Borrower to seek a protective
order or to take any appropriate action; provided, further, that neither the
Issuing Bank nor any Bank shall be required to delay compliance with any
directive to disclose any such information so as to allow Borrower to effect any
such action. The Issuing Bank and each Bank acknowledges that it is aware that
United States securities laws prohibit any person who has material, nonpublic
information concerning the Borrower from purchasing or selling securities of the
Borrower or from communicating such information to any other person under
circumstances in which it is reasonably foreseeable that such person is likely
to purchase or sell such securities. The Issuing Bank and each Bank agrees that
the provisions of this paragraph constitute a confidentiality agreement within
the meaning of Rule 100(b)(2)(ii) of Regulation FD.
SECTION 9.09 Representation by Banks. Each Bank hereby represents that it
is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided, however,
that, subject to Section 9.07, the disposition of the Note or Notes held by that
Bank shall at all times be within its exclusive control.
SECTION 9.10 Obligations Several. The obligations of the Issuing Bank and
each Bank hereunder are several, and neither the Issuing Bank nor any Bank shall
be responsible for
75
the obligations or commitment of the Issuing Bank or any other Bank hereunder.
Nothing contained in this Agreement and no action taken by the Issuing Bank or
Banks pursuant hereto shall be deemed to constitute the Issuing Bank or any of
the Banks to be a partnership, an association, a joint venture or any other kind
of entity. The amounts payable at any time hereunder to the Issuing Bank and
each Bank shall be a separate and independent debt, and the Issuing Bank and
each Bank shall be entitled to protect and enforce its rights arising out of
this Agreement or any other Loan Document and it shall not be necessary for the
Issuing Bank or any other Bank to be joined as an additional party in any
proceeding for such purpose.
SECTION 9.11 Survival of Certain Obligations. Sections 2.16(j), 8.03(a),
8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder, shall
survive, and shall continue to be enforceable notwithstanding, the termination
of this Agreement and the Commitments and the payment in full of the principal
of and interest on all Loans and Reimbursement Obligations.
SECTION 9.12 Governing Law. THIS AGREEMENT AND THE NOTES AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT AND THE NOTES SHALL BE GOVERNED
BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE STATE OF
NEW YORK WITHOUT REGARD TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF OTHER THAN
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK.
SECTION 9.13 Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14 Interest. In no event shall the amount of interest, and all
charges, amounts or fees contracted for, charged or collected pursuant to this
Agreement, the Notes or the other Loan Documents and deemed to be interest under
applicable law (collectively, "Interest") exceed the highest rate of interest
allowed by applicable law (the "Maximum Rate"), and in the event any such
payment is inadvertently received by any Bank, then the excess sum (the
"Excess") shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have the Excess returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under applicable law.
The right to accelerate maturity of any of the Loans does not include the right
to accelerate any interest that has not otherwise accrued on the date of such
acceleration, and the Administrative Agent and the Banks do not intend to
collect any unearned interest in the event of any such acceleration. All monies
paid to the Administrative Agent, the Issuing Bank or the Banks hereunder or
under any of the Notes or the other Loan Documents, whether at maturity or by
prepayment, shall be subject to rebate of unearned interest as and to the extent
required by applicable law. By the execution of this Agreement, the Borrower
covenants, to the fullest extent permitted by law, that (i) the credit or return
of any Excess shall constitute the acceptance by the Borrower of such Excess,
and (ii) the Borrower shall not seek or pursue any other remedy, legal or
equitable, against the Administrative Agent, the Issuing Bank or any Bank, based
in whole or in part upon contracting for charging or receiving any Interest in
excess of the Maximum Rate. For the purpose of determining whether or not any
Excess has been contracted
76
for, charged or received by the Administrative Agent, the Issuing Bank or any
Bank, all interest at any time contracted for, charged or received from the
Borrower in connection with this Agreement, the Notes or any of the other Loan
Documents shall, to the extent permitted by applicable law, be amortized,
prorated, allocated and spread in equal parts throughout the full term of the
Commitments. The Borrower, the Administrative Agent, the Issuing Bank and each
Bank shall, to the maximum extent permitted under applicable law, (i)
characterize any non-principal payment as an expense, fee or premium rather than
as Interest and (ii) exclude voluntary prepayments and the effects thereof. The
provisions of this Section shall be deemed to be incorporated into each Note and
each of the other Loan Documents (whether or not any provision of this Section
9.14 is referred to therein). All such Loan Documents and communications
relating to any Interest owed by the Borrower and all figures set forth therein
shall, for the sole purpose of computing the extent of obligations hereunder and
under the Notes and the other Loan Documents be automatically recomputed by the
Borrower, and by any court considering the same, to give effect to the
adjustments or credits required by this Section 9.14.
SECTION 9.15 Interpretation. No provision of this Agreement or any of the
other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16 Jurisdiction, Etc.; Waiver of Jury Trial.
(a) Each of the parties hereto hereby irrevocably and unconditionally
submits, for itself and its property, to the nonexclusive jurisdiction of any
New York State court or federal court of the United States of America sitting in
New York City, and any appellate court from any thereof, in any action or
proceeding arising out of or relating to this Agreement, the Notes or the other
Loan Documents to which it is a party, or for recognition or enforcement of any
judgment, and each of the parties hereto hereby irrevocably and unconditionally
agrees that all claims in respect of any such action or proceeding may be heard
and determined in any such New York State court or, to the extent permitted by
law, in such federal court. Each of the parties hereto agrees that a final
judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Agreement shall affect any right that any party
may otherwise have to bring any action or proceeding relating to this Agreement,
the Notes or the other Loan Documents to which it is a party in the courts of
any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement, the Notes or the other
Loan Documents to which it is a party in any New York State or federal court.
Each of the parties hereto irrevocably waives, to the fullest extent permitted
by law, the defense of an inconvenient forum to the maintenance of such action
or proceeding in any such court.
(c) Each of the Borrower, the Administrative Agent, the Issuing Bank and
the Banks hereby irrevocably waives all right to trial by jury in any action,
proceeding or counterclaim (whether based on contract, tort or otherwise)
arising out of or relating to this Agreement, the Notes or the other Loan
Documents to which it is a party or the actions of the Administrative
77
Agent, the Issuing Bank or any Bank in the negotiation, administration,
performance or enforcement thereof.
SECTION 9.17 Counterparts. This Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if the
signatures thereto and hereto were upon the same instrument.
SECTION 9.18 Source of Funds - ERISA. Each of the Banks hereby severally
(and not jointly) represents to the Borrower that no part of the funds to be
used by such Bank to fund the Loans hereunder from time to time constitutes (i)
assets allocated to any separate account maintained by such Bank in which any
employee benefit plan (or its related trust) has any interest nor (ii) any other
assets of any employee benefit plan. As used in this Section, the terms
"employee benefit plan" and "separate account" shall have the respective
meanings assigned to such terms in Section 3 of ERISA.
SECTION 9.19 Judgment Currency. If, for the purposes of obtaining judgment
in any court, it is necessary to convert a sum due hereunder or any other Loan
Document in one currency into another currency, the rate of exchange used shall
be that at which in accordance with normal banking procedures the Administrative
Agent could purchase the first currency with such other currency on the Business
Day preceding that on which final judgment is given. The obligation of the
Borrower in respect of any such sum due from them to the Administrative Agent,
the Issuing Bank or the Banks hereunder or under the other Loan Documents shall,
notwithstanding any judgment in a currency (the "Judgment Currency") other than
that in which such sum is denominated in accordance with the applicable
provisions of this Agreement (the "Agreement Currency"), be discharged only to
the extent that on the Business Day following receipt by the Administrative
Agent of any sum adjudged to be so due in the Judgment Currency, the
Administrative Agent may in accordance with normal banking procedures purchase
the Agreement Currency with the Judgment Currency. If the amount of the
Agreement Currency so purchased is less than the sum originally due to the
Administrative Agent, the Issuing Bank and/or the Banks from the Borrower in the
Agreement Currency, the Borrower agrees, as a separate obligation and
notwithstanding any such judgment, to indemnify the Administrative Agent, the
Banks or such other Person to whom such obligation was owing against such loss.
If the amount of the Agreement Currency so purchased is greater than the sum
originally due to the Administrative Agent, the Issuing Bank and/or the Banks in
such currency, the Administrative Agent, the Issuing Bank and the Banks agree to
return the amount of any excess to the Borrower (or to any other Person who may
be entitled thereto under applicable Law).
SECTION 9.20 FIN 46. For purposes of determining compliance with the
financial covenants in this Agreement, the application of Financial Accounting
Standards Board Interpretation No. 46 shall be disregarded with respect to
financial consolidation of any entity that is not a Subsidiary of the Borrower.
SECTION 9.21 USA Patriot Act. Each of the Administrative Agent, the Issuing
Bank and any Bank that is subject to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56) (signed into law October 26, 2001)) (the "Act")
hereby notifies the Borrower that pursuant to the requirements of the Act, it is
required to obtain, verify and record information that identifies the Borrower,
which information includes the name and address of the Borrower
78
and other information that will allow such Bank to identify the Borrower in
accordance with the Act.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.]
79
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
BORROWER:
XXXXXX RESTAURANTS, INC.
By: /s/ Xxxxxxx X. Xxxxx, III
------------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: Senior Vice President and
Treasurer
ADMINISTRATIVE AGENT:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent and as a Bank
By: /s/Xxxxx X. Xxxxxxx, III
------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Director
ISSUING BANK:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Issuing Bank
By: /s/ Xxxxx X. Xxxxxxx, III
--------------------------------
Name: Xxxxx X. Xxxxxxx, III
Title: Director
BANKS:
BANK OF AMERICA, N.A., as a
Syndication Agent and as a Bank
By: /s/ Xxxxxxx X. X'Xxxx
------------------------------
Name: Xxxxxxx X. X'Xxxx
Title: Director
SUNTRUST BANK, as a Syndication Agent
and as a Bank
By: /s/ Xxxxxxx Xxxxxxx
-------------------------------
Name: Xxxxxxx Xxxxxxx
Title: Managing Director
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
as a Documentation Agent and as a Bank
By: /s/ Xxxxx Xxxxx
----------------------------------
Name: Xxxxx Xxxxx
Title: Vice-President
By: /s/ Xxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Vice-President
COMERICA BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxx, Xx.
--------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
FIFTH THIRD BANK, as a Bank
By: /s/ Xxxxxxxxxxx X. Xxxxxx
--------------------------------
Name: Xxxxxxxxxxx X. Xxxxxx
Title: Vice President
U.S. BANK NATIONAL ASSOCIATION,
as a Bank
By: /s/ Xxxxxxx X. XxXxxx
--------------------------------
Name: Xxxxxxx X. XxXxxx
Title: Assistant Vice President
SCHEDULE 1.01
Commitments
................................................................................
Bank Commitment
................................................................................
Wachovia Bank $115,000,000.00
................................................................................
SunTrust Bank $ 75,000,000.00
................................................................................
Bank of America $100,000,000.00
................................................................................
Comerica Bank $ 45,000,000.00
................................................................................
Fifth Third Bank $ 45,000,000.00
................................................................................
Xxxxx Fargo Bank $ 75,000,000.00
................................................................................
US Bank $ 45,000,000.00
................................................................................
TOTAL COMMITMENT: $500,000,000.00
................................................................................
SCHEDULE 4.02
Material Subsidiaries
Shares Authorized Shares issued
Common Preferred and outstanding
---------- ---------- ----------------
Borrower:
Xxxxxx Restaurants, Inc. 500,000,000 25,000,000(1) 154,403,570 (2)
No par value No par value
Material Subsidiary:
GMRI, Inc. (3) 50,000 0 23,970 (4)
$1.00 par value
---------
(1) Of which 2,000,000 shares have been designated as Series A Participating
Cumulative Preferred Stock.
(2) As of July 1, 2005, excluding 117,030,318 shares held in the Company's
treasury.
(3) Incorporated in Florida March 27, 1968. As of May 29, 2005, represented
83.58% of Borrower's total revenues and 76.91% of Borrower's total assets.
(4) As of Closing Date. All shares held by Xxxxxx Restaurants, Inc.
Outstanding options, warrants or rights to purchase capital stock:
X. Xxxxxx Restaurants, Inc. -
1. Employee stock options. As of May 29, 2005, the Borrower had
options outstanding to purchase 20,579,002 shares of Borrower's common stock
held by directors, officers and employees, of which options to purchase
11,879,660 shares were exercisable at a weighted average exercise price of
$13.28 per share. Further information concerning stock options outstanding under
the Borrower's stock plans can be found in Note 16 to the Borrower's financial
statements found in the Form 10-K filed with the SEC on July 29, 2005. As
described in that footnote, at May 29, 2005, the Borrower also had 436,870 stock
units outstanding that were granted at a value equal to the market price of
Borrower's common stock at the grant date and will be settled in cash at the end
of their vesting periods at the then market price of Borrower's common stock.
Such stock units are not, however, actually convertible into or exchangeable for
stock.
2. Shareholder Rights Agreement. The Borrower has a Shareholder
Rights Agreement, pursuant to which each share of common stock has associated
with it one right to purchase one-thousandth of a share of our Series A
Participating Cumulative Preferred Stock at a purchase price of $120, subject to
adjustment. The rights are exercisable when, and not transferable apart from our
common stock until, a person or group has acquired 15 percent or more, or makes
a tender offer for 15 percent or more, of Borrower's common stock. The
Shareholder Rights Agreement is described in greater detail in Note 11 to the
financial statements contained in the Borrower's Form 10-K filed with the SEC on
July 29, 2005.
B. GMRI, Inc. - None.
SCHEDULE 4.08
Environmental Matters
None.
SCHEDULE 4.09
ERISA Disclosure.
The Borrower currently maintains the Xxxxxx Retirement Income Plan which in 1997
was converted to become a cash balance plan. That plan was submitted in a timely
manner to the Internal Revenue Service for a favorable determination letter. To
date, no final determination letter has been received because the IRS is holding
all cash balance plan conversions pending legal clarification as to the status
of these plans. The Borrower also is in the process of updating and republishing
its Summary Plan Descriptions and Summary Annual Reports with respect to its
ERISA covered plans.
SCHEDULE 4.14
Xxxxxx Restaurants, Inc.
Consolidated Total Debt Calculation
As of Xxxxxx 00, 0000
(Xx xxxxxxxxx)
x) Interest Bearing Debt
8.375% senior notes due 2005 $150,000
6.375% notes due 2006 150,000
5.75% medium-term notes due 2007 150,000
7.45% medium-term notes due 2011 75,000
7.125% debentures due 2016 100,000
4.875% senior notes due 2010 150,000
6% senior notes due 2035 150,000
ESOP loan, variable rate due December 2018 25,023
Short term commercial paper -
Other, fixed rate debt -
Subtotal $950,023
b) Deferred Purchase Price Obligations -
c) Consolidated Capitalized Lease Obligations -
d) Liens 2,825(1)
e) Banker's Acceptances -
f) Consolidated Operating Lease Obligations 73,306 (2)
Capitalization Factor 6.25
------------
Product 458,164
g) Net Obligations on Hedging Agreements -
h) Guarantees and Contingent Liabilities 1,768(3)
Total $1,412,781
-----------
Notes:
(1) See Attachment 1 (updated as of July 29, 2005).
(2) For four fiscal quarters immediately preceding closing date and annual rent
of subleased property not included in the total rent and lease expense or
in the contingent liability total.
(3) See Attachment 2 (updated quarterly, as of May 29, 2005).
Attachment 1 to Schedule 4.14
Liens
As of July 29, 2005
Restaurant Location Date
Concept/ # Name Lienor Filed Amount
Liens over $100,000:
XX0000 Xxxxxx Xxxxx, XX Caymus Construction 6/24/04 $ 144,545
XX0000 X. Xxxxxxxx, XX MSB Landscaping 7/19/05 478,308
d/b/a Site Tech.
XX0000 X. Xxxxxxxx, XX Tilcon 7/8/05 104,723
Connecticut, Inc.
XX0000 Xxx Xxxxxxx, XX K-D Construction 6/14/05 114,369
X00-0000 Xxxxxxxxx Xxxxx Xxxxxxxxx 2/1/05 432,809
Springs, FL
XX0000 Xxxxxxxxxxxx, XX Xxxxxx Construction 5/2/05 103,573
XX000 Xxxxx Xxxxxxx, XX First Capital Corp. 8/25/03 289,557
All liens less than $100,000: 1,157,075
---------
Total: 2,824,959
Attachment 2
To
Schedule 4.14
Xxxxxx Restaurants, Inc.
Guarantees and Contingent Liabilities
As of May 29, 2005
Total
Concept/Property Status Contingent Liability Liability
----------------- ----------------- ---------------------- ----------
Casa Gallardo #25 Lease assigned to Rent increases 4%/year $279,832
Daytona Beach, Fl El Torito through 4/08
China Coast#6025 Lease assigned to Annual rent years 1-5 is 405,566
Indianapolis, IN Xxxxxx'x Seafood $80,000; 6-10 is $92,000
11-15 is 105,800 through
3/09
Darryls#1871 Property was sold $11,000/year through 5/09 44,000
Birmingham, AL & lease assigned to
New Orleans Cafe
Olive Garden#1308 Land lease assigned Annual rent changed in 791,920
Tustin, CA to Hof's Hut Rest. Assignment of Lease;
Year 5 $79,200;
6-10 $91,800;
11-15 $106,290;
16-20 $122,954
Red Lobster#242 Land lease assigned $30,000/year through 55,000
Nashville, TN to llied Partners. 3/30/07
Red Lobster#429 Building lease $153,249/year through 191,561
Pittsburgh, PA assigned to Atria's 8/26/06
Xxxxxxxx Township
--------
Total: $1,767,880
===========
SCHEDULE 4.15
Litigation Disclosure
NONE.
EXHIBIT A
DOLLAR NOTE
$ Charlotte, North Carolina
------------- August 16, 2005
For value received, XXXXXX RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of _____________________________ (the
"Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Syndicated Loan denominated in Dollars made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates and in
the amounts provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Dollar Note on the dates and at
the rate or rates provided for in the Credit Agreement. Interest on any overdue
principal of and, to the extent permitted by law, overdue interest on the
principal amount hereof shall bear interest at the Default Rate, as provided for
in the Credit Agreement. All such payments of principal and interest shall be
made in lawful money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank, National Association, 000 Xxxxx
Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, or such other address as may be
specified from time to time pursuant to the Credit Agreement.
All Syndicated Loans denominated in Dollars made by the Bank, the
respective maturities thereof, the interest rates from time to time applicable
thereto and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make, or any error of the
Bank in making, any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Dollar Note is one of the Syndicated Notes referred to in the Credit
Agreement dated as of August 16, 2005 among the Borrower, the banks listed on
the signature pages thereof and their successors and assigns, and Wachovia Bank,
National Association, as Administrative Agent and Issuing Bank (as the same may
be amended or modified from time to time, the "Credit Agreement"). Terms defined
in the Credit Agreement are used herein with the same meanings. Reference is
made to the Credit Agreement for provisions for the prepayment and the repayment
hereof and the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Dollar Note or any portion
hereof is collected by law or through an attorney at law, to pay all reasonable
costs of collection, including, without limitation, reasonable attorneys' fees.
A-1
IN WITNESS WHEREOF, the Borrower has caused this Dollar Note to be duly
executed under seal, by its duly authorized officer as of the day and year first
above written.
XXXXXX RESTAURANTS, INC.
By:
-----------------------
Print:
-----------------------
Title:
-----------------------
A-2
Dollar Note (cont'd)
SYNDICATED LOANS DENOMINATED IN DOLLARS AND PAYMENTS OF PRINCIPAL
......... ........ ........... ........... ........... ............ .............
Amount of
Type of Interest Amount of Principal Maturity Notation
Date Loan* Rate Loan Repaid Date Made By
------ ------- --------- ---------- ----------- ---------- -----------
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
......... ........ ........... ........... ........... ............ .............
-------------------
1 ie.e., a Base Rate or Eurocurrency Loan.
A-3
EXHIBIT B
ALTERNATIVE CURRENCY NOTE
Charlotte, North Carolina
August 16, 2005
For value received, XXXXXX RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of _____________________________ (the
"Bank"), for the account of its Lending Office, the outstanding principal amount
of each Syndicated Loan denominated in an Alternative Currency made by the Bank
to the Borrower pursuant to the Credit Agreement referred to below, on the dates
and in the amounts provided in the Credit Agreement. The Borrower promises to
pay interest on the unpaid principal amount of this Alternative Currency Note on
the dates and at the rate or rates provided for in the Credit Agreement.
Interest on any overdue principal of and, to the extent permitted by law,
overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Wachovia Bank,
National Association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, or
such other address as may be specified from time to time pursuant to the Credit
Agreement.
All Syndicated Loans denominated in an Alternative Currency made by the
Bank, the respective maturities thereof, the interest rates from time to time
applicable thereto and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make, or any error
of the Bank in making, any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Alternative Currency Note is one of the Syndicated Notes referred to
in the Credit Agreement dated as of August 16, 2005 among the Borrower, the
banks listed on the signature pages thereof and their successors and assigns,
and Wachovia Bank, National Association, as Administrative Agent and Issuing
Bank (as the same may be amended or modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment and the repayment hereof and the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Syndicated Note or any portion
hereof is collected by law or through an attorney at law, to pay all reasonable
costs of collection, including, without limitation, reasonable attorneys' fees.
B-1
IN WITNESS WHEREOF, the Borrower has caused this Alternative Currency Note
to be duly executed under seal, by its duly authorized officer as of the day and
year first above written.
XXXXXX RESTAURANTS, INC.
By:
-----------------------
Print:
-----------------------
Title:
-----------------------
B-2
Alternative Currency Note (cont'd)
SYNDICATED LOANS DENOMINATED IN ALTERNATIVE CURRENCIES AND PAYMENTS OF PRINCIPAL
......... ........... ........... ........... ........... ............ ..........
Amount of
Alternative Interest Amount of Principal Maturity Notation
Date Currency Rate Loan Repaid Date Made By
---- ---------- --------- ---------- ----------- ---------- ---------
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
......... ........... ........... ........... ........... ............ ..........
B-3
EXHIBIT C
MONEY MARKET DOLLAR NOTE
$ Charlotte, North Carolina
--------------- August 16, 2005
For value received, XXXXXX RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of _____________________________ (the
"Bank"), for the account of its Lending Office, the principal sum of
________________________ DOLLARS ($_________________), or such lesser amount as
shall equal the unpaid principal amount of each Money Market Loan denominated in
Dollars made by the Bank to the Borrower pursuant to the Credit Agreement
referred to below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid principal amount
of this Money Market Dollar Note on the dates and at the rate or rates provided
for in the Credit Agreement. Interest on any overdue principal of and, to the
extent permitted by law, overdue interest on the principal amount hereof shall
bear interest at the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful money of the
United States in Federal or other immediately available funds at the office of
Wachovia Bank, National Association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx
Xxxxxxxx, or such other address as may be specified from time to time pursuant
to the Credit Agreement.
All Money Market Loans denominated in Dollars made by the Bank, the
respective maturities thereof, the interest rates from time to time applicable
thereto and all repayments of the principal thereof shall be recorded by the
Bank and, prior to any transfer hereof, endorsed by the Bank on the schedule
attached hereto, or on a continuation of such schedule attached to and made a
part hereof; provided that the failure of the Bank to make, or any error of the
Bank in making, any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Money Market Dollar Note is one of the Money Market Notes referred to
in the Credit Agreement dated as of August 16, 2005 among the Borrower, the
banks listed on the signature pages thereof and their successors and assigns,
and Wachovia Bank, National Association, as Administrative Agent and Issuing
Bank (as the same may be amended or modified from time to time, the "Credit
Agreement"). Terms defined in the Credit Agreement are used herein with the same
meanings. Reference is made to the Credit Agreement for provisions for the
prepayment and the repayment hereof and the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Money Market Note or any
portion hereof is collected by law or through an attorney at law, to pay all
reasonable costs of collection, including, without limitation, reasonable
attorneys' fees.
C-1
IN WITNESS WHEREOF, the Borrower has caused this Money Market Dollar Note
to be duly executed under seal, by its duly authorized officer as of the day and
year first above written.
XXXXXX RESTAURANTS, INC.
By:
------------------------------------------------
Title:
---------------------------------------------
C-2
Money Market Dollar Note (cont'd)
MONEY MARKET LOANS DENOMINATED IN DOLLARS AND PAYMENTS OF PRINCIPAL
......... ........... ........... ............. ........... .............
Amount of
Interest Amount of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
---- ---------- ---------- ------------- ----------- ----------
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
C-3
EXHIBIT D
MONEY MARKET ALTERNATIVE CURRENCY NOTE
Charlotte, North Carolina
August 16, 2005
For value received, XXXXXX RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of _____________________________ (the
"Bank"), for the account of its Lending Office, the principal sum each Money
Market Loan denominated in an Alternative Currency made by the Bank to the
Borrower pursuant to the Credit Agreement referred to below, on the dates and in
the amounts provided in the Credit Agreement. The Borrower promises to pay
interest on the unpaid principal amount of this Money Market Alternative
Currency Note on the dates and at the rate or rates provided for in the Credit
Agreement. Interest on any overdue principal of and, to the extent permitted by
law, overdue interest on the principal amount hereof shall bear interest at the
Default Rate, as provided for in the Credit Agreement. All such payments of
principal and interest shall be made in lawful money of the United States in
Federal or other immediately available funds at the office of Wachovia Bank,
National Association, 000 Xxxxx Xxxxxxx Xxxxxx, Xxxxxxxxx, Xxxxx Xxxxxxxx, or
such other address as may be specified from time to time pursuant to the Credit
Agreement.
All Money Market Loans denominated in an Alternative Currency made by the
Bank, the respective maturities thereof, the interest rates from time to time
applicable thereto and all repayments of the principal thereof shall be recorded
by the Bank and, prior to any transfer hereof, endorsed by the Bank on the
schedule attached hereto, or on a continuation of such schedule attached to and
made a part hereof; provided that the failure of the Bank to make, or any error
of the Bank in making, any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit Agreement.
This Money Market Alternative Currency Note is one of the Money Market
Notes referred to in the Credit Agreement dated as of August 16, 2005 among the
Borrower, the banks listed on the signature pages thereof and their successors
and assigns, and Wachovia Bank, National Association, as Administrative Agent
and Issuing Bank (as the same may be amended or modified from time to time, the
"Credit Agreement"). Terms defined in the Credit Agreement are used herein with
the same meanings. Reference is made to the Credit Agreement for provisions for
the prepayment and the repayment hereof and the acceleration of the maturity
hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Money Market Note or any
portion hereof is collected by law or through an attorney at law, to pay all
reasonable costs of collection, including, without limitation, reasonable
attorneys' fees.
D-1
IN WITNESS WHEREOF, the Borrower has caused this Money Market Alternative
Currency Note to be duly executed under seal, by its duly authorized officer as
of the day and year first above written.
XXXXXX RESTAURANTS, INC.
By:
------------------------------------------------
Title:
---------------------------------------------
D-2
Money Market Alternative Currency Note (cont'd)
MONEY MARKET LOANS DENOMINATED IN AN ALTERNATIVE CURRENCY AND
PAYMENTS OF PRINCIPAL
......... ........... .............. ............. ........... .............
Amount of
Loan and Amount of
Interest Alternative Principal Maturity Notation
Date Rate Currency Repaid Date Made By
---- ---------- -------------- ------------- ----------- ----------
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... .............. ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
......... ........... ........... ............. ........... ............
D-3
EXHIBIT E
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Administrative Agent, Referred to Below
c/o Wachovia Bank, National Association, as Administrative Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Dear Sirs:
I have acted as counsel for Xxxxxx Restaurants, Inc., a Florida corporation
(the "Borrower"), in my capacity as Senior Associate General Counsel of the
Borrower, in connection with the Credit Agreement (the "Credit Agreement") dated
as of August 16, 2005, among the Borrower, the banks listed on the signature
pages thereof and Wachovia Bank, National Association, as Administrative Agent
and Issuing Bank. Terms defined in the Credit Agreement are used herein as
therein defined.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. As to questions of fact relating to the Borrower material to this
opinion, I have relied upon representations of appropriate officers of the
Borrower. I have assumed for purposes of my opinions set forth below, with the
permission of the Administrative Agent and the Banks and without verification:
(a) the authenticity of all documents submitted to me as originals,
(b) the genuineness of all signatures,
(c) the legal capacity of natural persons,
(d) the conformity to originals of all documents submitted to me as copies
and the authenticity of the originals of such copies,
(e) the accuracy as to factual matters of the representations and
warranties of the Borrower contained in the Credit Agreement,
(f) that all conditions precedent to the effectiveness of the Credit
Agreement have been satisfied or waived,
E-1
(g) that the execution and delivery of the Credit Agreement by each Bank
and by the Administrative Agent have been duly authorized by each Bank
and by the Administrative Agent, and
(h) that the Credit Agreement is enforceable against the Administrative
Agent and the Bank in accordance with its terms.
I am qualified to practice in the State of Florida and do not purport to be
an expert on any laws other than the laws of the United States and the State of
Florida and this opinion is rendered only with respect to such laws. I have made
no independent investigation of the laws of any other jurisdiction.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing and in
good standing under the laws of the State of Florida and has all corporate
powers required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes (i) are within the Borrower's corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) require no
action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument which to my knowledge is binding upon the Borrower, and (v)
to my knowledge, except as provided in the Credit Agreement, do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
3. The Credit Agreement constitutes a valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms, and the
Notes constitute valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms.
4. To my knowledge, there is no action, suit or proceeding pending, or
threatened, against or affecting the Borrower or any of its Material
Subsidiaries before any court or arbitrator or any governmental body, agency or
official in which there is a reasonable possibility of an adverse decision which
could materially adversely affect the business, consolidated financial position
or consolidated results of operations of the Borrower and its Consolidated
Subsidiaries, considered as a whole, or which in any manner questions the
validity or enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Material Subsidiaries is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation, and has all corporate powers and all material
governmental licenses, authorizations, consents and approvals required to carry
on its business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
E-2
7. Neither the Borrower nor any of its Subsidiaries is a "holding company,"
or a "subsidiary company" of a "holding company," or an "affiliate" of a
"holding company" or of a "subsidiary company" of a "holding company," as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
8. The choice of New York law to govern the Credit Agreement, the Notes and
the other Loan Documents in which such choice is stipulated is a valid and
effective choice of law under the law of the State of Florida, and adherence to
existing judicial precedents generally would require a court sitting in the
State of Florida to abide by such choice of law. Such courts might not give
effect to such choice of law provisions if giving effect to such provisions were
determined to be contrary to a fundamental policy of the State of Florida at
such time, but I am not aware of any existing precedent refusing to give effect
to a choice of law provision in a substantial commercial contract on purely
public policy grounds. I am not aware of any provision of the Credit Agreement,
the Notes or the other Loan Documents which would violate a fundamental policy
of the State of Florida. In addition, I have assumed for the purposes of this
opinion that in selecting New York law the parties are acting in good faith and
without an intent to evade the law of Florida.
My opinions set forth above are subject to the following additional
qualifications:
(a) I express no opinion as to the effect of the law of any jurisdiction
(other than the State of Florida and the United States) wherein any Bank may be
located which limits rates of interest which may be charged or collected by such
Bank.
(b) I wish to point out that the provisions of the Credit Agreement that
permit the Administrative Agent or any Bank to take action or make
determinations, or to benefit from indemnities and similar undertakings of the
Borrower, may be subject to a requirement that such action or inaction by the
Administrative Agent or a Bank which may give rise to a request for payment
under such an undertaking be taken or not taken on a reasonable basis and in
good faith.
(c) My opinions are subject to the effect of bankruptcy, insolvency,
reorganization, arrangement, moratorium, fraudulent transfer, statutes of
limitation, or other similar laws and judicial decisions affecting or relating
to the rights of creditors generally, and are further subject to the effect of
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, estoppel, election of
remedies and other similar doctrines affecting the enforcement of agreements
generally (regardless of whether enforcement is considered in a proceeding at
law or in equity). In addition, the availability of specific performance,
injunctive relief, the appointment of a receiver or other equitable remedies is
subject to the discretion of the tribunal before which any proceeding therefor
may be brought.
(d) I express no opinion as to the enforceability of provisions of the
Credit Agreement to the extent it contains:
(i) choice of law or forum selection provisions except as set forth in
paragraph 8, above,
(ii) waivers by the Borrower of any statutory or constitutional rights
or remedies,
E-3
(iii) grants to the Administrative Agent or the Banks of powers of
attorney,
(iv) cumulative remedies to the extent such cumulative remedies
purport to compensate, or would have the effect of compensating, the party
entitled to the benefits thereof in an amount in excess of the actual loss
suffered by such party,
(v) obligations of the Borrower to pay any prepayment premium, default
interest rate, early termination fee or other form of liquidated damages,
if the payment of such premium, interest rate, fee or damages may be
construed as unreasonable in relation to actual damages or disproportionate
to actual damages suffered by the Banks as a result of such prepayment,
default or termination,
(vi) terms purporting to establish evidentiary standards, or
(vii) terms to the effect that provisions in the Credit Agreement may
not be waived or modified except in writing may be limited under certain
circumstances.
(e) I express no opinion as to compliance or the effect of noncompliance by
the Administrative Agent or any Bank with any state or federal laws or
regulations applicable to the Administrative Agent or such Bank in connection
with the transactions described in the Credit Agreement.
The opinions expressed herein are based on an analysis of existing laws and
court decisions and cover certain matters not directly addressed by such
authorities. This opinion is solely for the benefit of the addressees hereof in
connection with the transaction described in the first paragraph of this letter,
may not be relied upon by the addressee hereof for any other purpose, and may
not be relied upon or used by, circulated, quoted, or referred to, nor may
copies hereof be delivered to, another person, other than the Administrative
Agent's and the Banks' participants and assigns permitted under the Agreement,
for any purpose without my prior written approval; provided that copies hereof
may be provided by a Bank to its auditors and counsel and to any governmental
agency or authority having jurisdiction over such Bank. I disclaim any
obligation to update this opinion letter for events occurring or coming to my
attention, or any changes in the law taking effect, after the date hereof.
Very truly yours,
----------------------------------
Xxxxxxx X. Xxxxx
Senior Associate General Counsel
Xxxxxx Restaurants, Inc.
E-4
EXHIBIT F
MONEY MARKET QUOTE REQUEST
[Date]
To: Wachovia Bank, National Association
as Administrative Agent
From: Xxxxxx Restaurants, Inc.
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Credit Agreement (the "Credit Agreement")
dated as of August 16, 2005, among Xxxxxx Restaurants, Inc., the banks listed on
the signature pages thereof, and Wachovia Bank, National Association, as
Administrative Agent and Issuing Bank, we hereby give notice that we request
Money Market Quotes for the following proposed Money Market Borrowing(s)
Date of Borrowing: Principal Amount* Applicable Currency Interest Period**
------------------ ----------------- ------------------- -----------------
Terms used herein have the meanings assigned to them in the Credit Agreement.
XXXXXX RESTAURANTS, INC.
By:
----------------------------------------
Title:
-------------------------------------
----------------------------
1 Amount must be $5,000,000 or a larger multiple of $1,000,000. Also, if
Alternative Currency is used, Principal Amount is the Dollar Equivalent.
2 A period of 7 to 180 days.
F-1
EXHIBIT G
MONEY MARKET QUOTE
Wachovia Bank, National Association
as Administrative Agent
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention:
Re: Money Market Quote to Xxxxxx Restaurants, Inc. (the "Borrower")
This Money Market Quote is given in accordance with Section 2.03(c)(ii) of
the Credit Agreement (the "Credit Agreement") dated as of August 16, 2005, among
Xxxxxx Restaurants, Inc., the banks listed on the signature pages thereof (the
"Banks"), and Wachovia Bank, National Association, as Administrative Agent and
Issuing Bank. Terms defined in the Credit Agreement are used herein as defined
therein.
In response to the Borrower's invitation dated ____________ __, ____, we
hereby make the following Money Market Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing:1
4. We hereby offer to make Money Market Loan(s) in the following minimum
and maximum principal amounts, for the following Interest Periods and at the
following rates:
Minimum Maximum
Principal Principal Applicable
Amount2 Amount2 Interest Period3 Currency Interest Rate
------ --------- ---------------- ------------- -------------
-----------------------
1 As specified in the related Money Market Quote Request.
2 The principal amound bid for each Interest period may not exceed the principal
amount requested. Bids must be made for at least $[5,000,000] or a larger
multiple of $[1,000,000].
3 A period of 7 to 180 days.
G-1
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Money Market Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to the third sentence
of Section 2.03(e) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:
---------------------- --------------------------------------
Authorized Officer
G-2
EXHIBIT H
CLOSING CERTIFICATE
OF
XXXXXX RESTAURANTS, INC.
Reference is made to the Credit Agreement (the "Credit Agreement") dated as
of August 16, 2005, among Xxxxxx Restaurants, Inc. (the "Borrower"), the banks
listed on the signature pages thereof, and Wachovia Bank, National Association,
as Administrative Agent and Issuing Bank. Capitalized terms used herein have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01 of the Credit Agreement, ___________________, the
duly authorized ____________________ of the Borrower, hereby certifies to the
Administrative Agent and the Banks that: (i) no Default has occurred and is
continuing on the date hereof; and (ii) the representations and warranties of
the Borrower contained in Article IV of the Credit Agreement are true on and as
of the date hereof.
Certified as of the 16th day of August, 2005.
XXXXXX RESTAURANTS, INC.
By:
------------------------------
Print:
--------------------------
Title:
--------------------------
H-1
EXHIBIT I
XXXXXX RESTAURANTS, INC.
SECRETARY'S CERTIFICATE
The undersigned, _____________, in [his/her] capacity as Secretary of
Xxxxxx Restaurants, Inc., a Florida corporation (the "Borrower"), hereby
certifies that [he/she] has been duly elected, qualified and is acting in such
capacity and that, as such, [he/she] is familiar with the facts herein certified
and is duly authorized to certify the same, and hereby further certifies, in
connection with the Credit Agreement dated as of August ___, 2005 among the
Borrower, the banks listed on the signature pages thereof, and Wachovia Bank,
National Association, as Administrative Agent and Issuing Bank, that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of Florida, the
Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on
___________ __, 2005 approving, and authorizing the execution and delivery of,
the Credit Agreement, the Notes (as such term is defined in the Credit
Agreement) and the other Loan Documents (as such term is defined in the Credit
Agreement) to which the Borrower is a party. Such resolutions have not been
repealed or amended and are in full force and effect, and no other resolutions
or consents have been adopted by the Board of Directors of the Borrower in
connection therewith.
4. ____________, who as ________________________ of the Borrower signed
the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
[he/she] signed the Credit Agreement, the Notes and other Loan Documents to
which the Borrower is a party, and [his/her] signature appearing on the Credit
Agreement, the Notes and the other Loan Documents to which the Borrower is a
party is [his/her] genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set [his/her] hand as of
the 16th day of August, 2005.
XXXXXX RESTAURANTS, INC.
By:
------------------------------
Print:
--------------------------
Title:
--------------------------
I-1
EXHIBIT J
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of XXXXXX RESTAURANTS, INC., a corporation
organized under the laws of Florida (the "Borrower"), hereby certifies to
Wachovia Bank, National Association (the "Administrative Agent"), and the
Issuing Bank and the Banks (each as defined in the Credit Agreement described
below) as follows:
1. This Certificate is delivered to you pursuant to Section 5.01(b) of the
Credit Agreement, dated as of August 16, 2005 (the "Credit Agreement"), among
the Borrower, the Banks listed therein, and the Administrative Agent. Terms
defined in the Credit Agreement are used herein as therein defined.
2. I have reviewed the financial statements of the Borrower and its
Consolidated Subsidiaries dated as of _________________ and for the
_____________ period[s] then ended and such statements fairly present the
financial condition of the Borrower and its Consolidated Subsidiaries as of the
dates indicated and the results of its operations and cash flows for the
period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and the
related Loan Documents and have made, or caused to be made under my supervision,
a review in reasonable detail of the transactions and the condition of the
Borrower and its Consolidated Subsidiaries during the accounting period covered
by the financial statements referred to in Paragraph 2 above. Such review has
not disclosed the existence during or at the end of such accounting period of
any condition or event that constitutes a Default, nor do I have any knowledge
of the existence of any such condition or event as at the date of this
Certificate [except, {if such condition or event existed or exists, describe the
nature and period of existence thereof and what action the Company has taken, is
taking and proposes to take with respect thereto}].
4. The Pricing Level and the Applicable Margin are set forth on the
attached Schedule 1, the Borrower is in compliance with the covenant contained
in Section 5.19 of the Credit Agreement as shown on such Schedule 1, and the
Borrower and its Subsidiaries, as applicable, are in compliance with the other
covenants and restrictions contained in Article V of the Loan Agreement.
5. Schedule 2 sets forth a list of Material Subsidiaries and the percent of
total revenues of the Borrower and its Subsidiaries and percent of total assets
of the Borrower and its Subsidiaries which each such Material Subsidiary
represents.
WITNESS the following signature as of the ______ day of ____________, 20__.
XXXXXX RESTAURANTS, INC.
By:
------------------------------
Print:
--------------------------
Title:
--------------------------
J-1
Schedule 1
to
Officer's Compliance Certificate
1. Pricing Level
(a) Debt Rating of the Company's Senior Debt by
(i) S&P ___________
(ii) Xxxxx'x ___________
(b) Pricing Level: ___________
(c) Applicable Margin:
(i) Base Rate Loan ____%
Eurocurrency Loan ____%
(ii) Applicable Facility Fee Rate ____%
2. Ratio of Consolidated Total Debt to Consolidated Total Capitalization
(Section 5.19)
Ratio of Consolidated Total Debt
to Consolidated Total Capitalization:
(a) Consolidated Total Debt as of the end of the Fiscal Quarter
ending on or immediately prior to the date hereof: $___________
(b) Consolidated Total Capitalization as of the end of the Fiscal
Quarter ending on or immediately prior to the date hereof:
$___________
(c) Ratio of (a) to (b): ___________
(d) Maximum Ratio permitted: 0.65 to 1.00
J-2
Schedule 2
to
Officer's Compliance Certificate
..................... .................. ......... ........... ..................
Material Subsidiary Incorporated In % of Total Revenues % of Total Assets
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
..................... .................. ..................... ..................
J-3
EXHIBIT K
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the "Assignment and Assumption") is dated as of
the Effective Date set forth below and is entered into by and between
[the][each]1 Assignor identified in item 1 below ([the][each, an] "Assignor")
and [the][each]2 Assignee identified in item 2 below ([the][each, an]
"Assignee"). [It is understood and agreed that the rights and obligations of
[the Assignors][the Assignees]3 hereunder are several and not joint.]4
Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (as amended, the "Credit
Agreement"), receipt of a copy of which is hereby acknowledged by [the][each]
Assignee. The Standard Terms and Conditions set forth in Annex 1 attached hereto
are hereby agreed to and incorporated herein by reference and made a part of
this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the][each] Assignor hereby irrevocably sells and
assigns to [the Assignee][the respective Assignees], and [the][each] Assignee
hereby irrevocably purchases and assumes from [the Assignor][the respective
Assignors], subject to and in accordance with the Standard Terms and Conditions
and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignor's][the
respective Assignors'] rights and obligations in [its capacity as a Bank][their
respective capacities as Banks] under the Credit Agreement and any other
documents or instruments delivered pursuant thereto to the extent related to the
amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor][the respective Assignors] under the
respective facilities identified below (including without limitation any letters
of credit, guarantees, and swingline loans included in such facilities) and (ii)
to the extent permitted to be assigned under applicable law, all claims, suits,
causes of action and any other right of [the Assignor (in its capacity as a
Bank)][the respective Assignors (in their respective capacities as Banks)]
against any Person, whether known or unknown, arising under or in connection
with the Credit Agreement, any other documents or instruments delivered pursuant
thereto or the loan transactions governed thereby or in any way based on or
related to any of the foregoing, including, but not limited to, contract claims,
tort claims, malpractice claims, statutory claims and all other claims at law or
in equity related to the rights and obligations sold and assigned pursuant to
clause (i) above (the rights and obligations sold and assigned by [the][any]
Assignor to [the][any] Assignee pursuant to clauses (i) and (ii) above being
referred to herein collectively as [the][an] "Assigned Interest"). Each such
sale and assignment is without recourse to [the][any] Assignor and, except as
expressly provided in this Assignment and Assumption, without representation or
warranty by [the][any] Assignor.
1. Assignor[s]: -------------------------------
------------------------------
1 For bracketed language here and elsewhere in this form relating to the
Assignor(s), if the assignment is from a single Assignor, choose the first
bracketed language. If the assignment is from multiple Assignors, choose the
second bracketed language.
2 For bracketed language here and elsewhere in this form relating to the
Assignee(s), if the assignment is to a single Assignee, choose the first
bracketed language. If the assignment is to multiple Assignees, choose the
second bracketed language.
3 Select as appropriate.
4 Include bracketed language if there are either multiple Assignors or multiple
Assignees.
K-1
--------------------------------
2. Assignee[s]: --------------------------------
--------------------------------
[for each Assignee, indicate [Affiliate][Approved Fund] of [identify Bank]
3. Borrower(s): Xxxxxx Restaurants, Inc., a
Florida corporation
4. Administrative Agent: Wachovia Bank,
National Association, as the administrative
agent under the Credit Agreement
5. Credit Agreement: The $500,000,000 Credit
Agreement dated as of August 16, 2005 among
Xxxxxx Restaurants, Inc., a Florida
corporation, the Banks parties thereto,
Wachovia Bank, National Association, as
Administrative Agent and Issuing Bank, and
the other agents parties thereto
6. Assigned Interest[s]:
-------------------- ------------------- -------------------- ---------------------- ----------------- -----------------
Assignor[s]5 Assignee[s]6 Aggregate Amount Amount of Percentage CUSIP Number
of Commitment/Loans Assigned of
Commitment/Loans Assigned8 Commitment/Loans8
for all Banks7
-------------------- ------------------- -------------------- ---------------------- ----------------- -----------------
$ $
%
-------------------- ------------------- -------------------- ---------------------- ----------------- -----------------
$ $
%
-------------------- ------------------- -------------------- ---------------------- ----------------- -----------------
$ $
%
-------------------- ------------------- -------------------- ---------------------- ----------------- -----------------
[7. Trade Date: ______________]9
Effective Date: _____________ ___, 20___ [TO BE INSERTED BY ADMINISTRATIVE AGENT
AND WHICH SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER
THEREFOR.]
-------------------------
5 List each Assignor, as appropriate.
6 List each Assignee, as appropriate.
7 Amount to be adjusted by the counterparties to take into account any payments
or prepayments made between the Trade Date and the Effective Date.
8 Set forth, to at least 9 decimals, as a percentage of the Committement/Loans
of all Banks thereunder.
9 To be completed if the Assignor(s) and the Assignee(s) intend that the minimum
assignment amount is to be determined as of the Trade Date.
K-2
The terms set forth in this Assignment and Assumption are hereby agreed to:
ASSIGNOR[S]10
[NAME OF ASSIGNOR]
By:
-----------------------------
Title:
--------------------------
[NAME OF ASSIGNOR]
By:
-----------------------------
Title:
--------------------------
ASSIGNEE[S]11
[NAME OF ASSIGNEE]
By:
-----------------------------
Title:
--------------------------
[NAME OF ASSIGNEE]
By:
-----------------------------
Title:
--------------------------
---------------------
10 Add additional signature blocks as needed.
11 Add additional signature blocks as needed.
K-3
[Consented to and]12 Accepted:
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
By:
-----------------------------
Title:
--------------------------
[Consented to:]13
[NAME OF RELEVANT PARTY]
By:
-----------------------------
Title:
--------------------------
----------------------
12 To be added only if the consent of the Administrative Agent is required by
the terms of the Credit Agreement.
13 To be added only if the consent of the Borrower and/or other parties (e.g.
Issuing Bank) is required by the terms of the Credit Agreement.
K-4
ANNEX 1
The $500,000,000 Credit Agreement dated as of August 16, 2005 among Xxxxxx
Restaurants, Inc., a Florida corporation, the Banks parties thereto, Wachovia
Bank, National Association, as Administrative Agent and Issuing Bank, and the
other agents parties thereto]
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The][Each] Assignor (a) represents and warrants that (i) it is
the legal and beneficial owner of [the][the relevant] Assigned Interest, (ii)
[the][such] Assigned Interest is free and clear of any lien, encumbrance or
other adverse claim and (iii) it has full power and authority, and has taken all
action necessary, to execute and deliver this Assignment and Assumption and to
consummate the transactions contemplated hereby; and (b) assumes no
responsibility with respect to (i) any statements, warranties or representations
made in or in connection with the Credit Agreement or any other Loan Document,
(ii) the execution, legality, validity, enforceability, genuineness, sufficiency
or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other
Person obligated in respect of any Loan Document or (iv) the performance or
observance by the Borrower, any of its Subsidiaries or Affiliates or any other
Person of any of their respective obligations under any Loan Document.
1.2. Assignee[s]. [The][Each] Assignee (a) represents and warrants that (i) it
has full power and authority, and has taken all action necessary, to execute and
deliver this Assignment and Assumption and to consummate the transactions
contemplated hereby and to become a Bank under the Credit Agreement, (ii) it
meets all the requirements to be an assignee under Section 9.07(c)(iii), (v) and
(vi) of the Credit Agreement (subject to such consents, if any, as may be
required under Section 9.01(c)(iii) of the Credit Agreement), (iii) from and
after the Effective Date, it shall be bound by the provisions of the Credit
Agreement as a Bank thereunder and, to the extent of [the][the relevant]
Assigned Interest, shall have the obligations of a Bank thereunder, (iv) it is
sophisticated with respect to decisions to acquire assets of the type
represented by the Assigned Interest and either it, or the person exercising
discretion in making its decision to acquire the Assigned Interest, is
experienced in acquiring assets of such type, (v) it has received a copy of the
Credit Agreement, and has received or has been accorded the opportunity to
receive copies of the most recent financial statements delivered pursuant to
Section 5.01 thereof, as applicable, and such other documents and information as
it deems appropriate to make its own credit analysis and decision to enter into
this Assignment and Assumption and to purchase [the][such] Assigned Interest,
(vi) it has, independently and without reliance upon the Administrative Agent or
any other Bank and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Assignment and Assumption and to purchase [the][such] Assigned Interest, and
(vii) if it is a Foreign Bank14, attached to the Assignment and Assumption is
any documentation required to be delivered by it pursuant to the terms of the
Credit Agreement, duly completed and executed by
----------------------
14 The concept of "Foreign Bank" should be conformed to the section in the
Credit Agreement governing withholding taxes and gross-up.
K-5
[the][such] Assignee; and (b) agrees that (i) it will, independently and without
reliance on the Administrative Agent, [the][any] Assignor or any other Bank, and
based on such documents and information as it shall deem appropriate at the
time, continue to make its own credit decisions in taking or not taking action
under the Loan Documents, and (ii) it will perform in accordance with their
terms all of the obligations which by the terms of the Loan Documents are
required to be performed by it as a Bank.
2. Payments. From and after the Effective Date, the Administrative Agent shall
make all payments in respect of [the][each] Assigned Interest (including
payments of principal, interest, fees and other amounts) to [the][the relevant]
Assignor for amounts which have accrued to but excluding the Effective Date and
to [the][the relevant] Assignee for amounts which have accrued from and after
the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of, the parties hereto and their respective successors and
assigns. This Assignment and Assumption may be executed in any number of
counterparts, which together shall constitute one instrument. Delivery of an
executed counterpart of a signature page of this Assignment and Assumption by
telecopy shall be effective as delivery of a manually executed counterpart of
this Assignment and Assumption. This Assignment and Assumption shall be governed
by, and construed in accordance with, the law of the State of New York.
K-6
EXHIBIT L
NOTICE OF BORROWING
__________, 20____
Wachovia Bank, National Association,
as Administrative Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of August 16, 2005 by and among Xxxxxx
Restaurants, Inc., the Banks from time to time parties thereto, and
Wachovia Bank, National Association, as Administrative Agent and
Issuing Bank
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of
the Credit Agreement.
The Borrower hereby requests a [Eurocurrency Borrowing][Base Rate
Borrowing] in the aggregate principal amount of ___________ [APPLICABLE
CURRENCY] to be made on ________, ____, and for interest to accrue thereon at
the rate established by the Credit Agreement for [Eurocurrency Loans] [Base Rate
Loans]. [The Interest Period with respect to such Eurocurrency Loan shall be for
[1 month] [2 months] [3 months] [6 months].]
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this ___ day of ___________, 20____.
XXXXXX RESTAURANTS, INC.
By:
------------------------------
Print:
--------------------------
Title:
--------------------------
L-1
EXHIBIT M
NOTICE OF CONTINUATION OR CONVERSION
_____________________, 20____
Wachovia Bank, National Association,
as Administrative Agent
One Wachovia Center
000 Xxxxx Xxxxxxx Xxxxxx
Xxxxxxxxx, Xxxxx Xxxxxxxx 00000-0000
Attention: Syndication Agency Services
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of August 16, 2005 by and among Xxxxxx
Restaurants, Inc., the Banks from time to time parties thereto, and
Wachovia Bank, National Association, as Administrative Agent and
Issuing Bank.
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Continuation or Conversion is delivered to you pursuant to
Section 2.04 of the Credit Agreement.
With respect to the [Base Rate Loans] [Eurocurrency Loans] in the aggregate
amount of __________ [APPLICABLE CURRENCY] [which has an Interest Period ending
on _____________], the Borrower hereby requests that such loan be [converted to
a] [Base Rate Loan] [Eurocurrency Loan] [continued as a] [Eurocurrency Loan] in
the aggregate principal amount of __________ [APPLICABLE CURRENCY] to be made on
such date, and for interest to accrue thereon at the rate established by the
Credit Agreement for [Base Rate Loans] [Eurocurrency Loans]. [The Interest
Period with respect to such Eurocurrency Loan shall be for [1 month] [2 months]
[3 months] [6 months]].
The Borrower has caused this Notice of Continuation or Conversion to be
executed and delivered by its duly authorized officer this ______ day of
____________, 20___.
XXXXXX RESTAURANTS, INC.
By:
------------------------------
Print:
--------------------------
M-1
EXHIBIT N
NOTICE IN RESPECT OF ISSUANCE OF LETTERS OF CREDIT
TO: The Banks party to the Credit Agreement, dated as of August 16, 2005
(the "Credit Agreement"), among Xxxxxx Restaurants, Inc., such Banks and
Wachovia Bank, National Association, as Administrative Agent (the
"Administrative Agent").
Pursuant to Section 2.16 of the Credit Agreement, the Issuing Bank hereby
certifies to the Banks that it has issued the following Letters of Credit
pursuant to Article II of the Credit Agreement:
-------------- -------------- ---------------- -------------------------
Face Applicable Date of
Number Amount Currency Issuance/Expiration
-------------- -------------- ---------------- -------------------------
-------------- -------------- ---------------- -------------------------
A copy of each of the Letters of Credit listed above has been attached
hereto.
Unless otherwise defined herein, terms defined in the Credit Agreement
shall have the same meaning in this notice.
Date: ______________, ____.
Wachovia Bank, National Association, as Issuing Bank
By:
------------------------------
Print:
--------------------------
Title:
--------------------------
N-1
