EXECUTION COPY
$400,000,000
CREDIT AGREEMENT
dated as of
October 17, 2003
among
XXXXXX RESTAURANTS, INC.,
as Borrower
The Banks Listed Herein,
SUNTRUST BANK, as Syndication Agent,
BANK OF AMERICA, N.A., as Documentation Agent,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Administrative Agent
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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...............12
SECTION 1.03 Terms Generally...................................12
SECTION 1.04 Use of Defined Terms..............................12
ARTICLE II THE CREDITS............................................12
SECTION 2.01 Commitments to Make Loans.........................12
SECTION 2.02 Method of Borrowing Loans.........................13
SECTION 2.03 Continuation and Conversion Elections.............14
SECTION 2.04 Notes.............................................15
SECTION 2.05 Maturity of Loans.................................15
SECTION 2.06 Interest Rates....................................15
SECTION 2.07 Fees..............................................17
SECTION 2.08 Optional Termination or Reduction of Commitments..18
SECTION 2.09 Termination of Commitments........................18
SECTION 2.10 Optional Prepayments..............................18
SECTION 2.11 Mandatory Prepayments.............................19
SECTION 2.12 General Provisions as to Payments.................19
SECTION 2.13 Computation of Interest and Fees..................22
ARTICLE III CONDITIONS TO BORROWINGS...............................22
SECTION 3.01 Conditions to First Borrowing.....................22
SECTION 3.02 Conditions to All Borrowings......................23
SECTION 3.03 Determinations Under Section 3.01.................24
ARTICLE IV REPRESENTATIONS AND WARRANTIES.........................24
SECTION 4.01 Organization; Power; Qualification................24
SECTION 4.02 Subsidiaries and Capitalization...................24
SECTION 4.03 Authorization of Agreement, Loan Documents and
Borrowing....................................25
SECTION 4.04 Compliance of Agreement, Loan Documents
and Borrowing with Laws, Etc......................25
SECTION 4.05 Compliance with Law; Governmental Approvals.......25
SECTION 4.06 Tax Returns and Payments..........................26
SECTION 4.07 Intellectual Property Matters.....................26
SECTION 4.08 Environmental Matters.............................26
SECTION 4.09 ERISA.............................................26
SECTION 4.10 Margin Stock......................................27
SECTION 4.11 Government Regulation.............................27
SECTION 4.12 Financial Statements..............................27
SECTION 4.13 Title to Properties...............................27
SECTION 4.14 Debt and Liens....................................28
SECTION 4.15 Litigation........................................26
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SECTION 4.16 Absence of Defaults...............................28
SECTION 4.17 Accuracy and Completeness of Information..........28
SECTION 4.18 Insolvency........................................29
SECTION 4.19 Insurance.........................................29
ARTICLE V COVENANTS..............................................29
SECTION 5.01 Financial Information and Notices.................29
SECTION 5.02 Preservation of Corporate Existence and Related
Matters......................................32
SECTION 5.03 Maintenance of Property...........................32
SECTION 5.04 Insurance.........................................32
SECTION 5.05 Accounting Methods and Financial Records..........32
SECTION 5.06 Payment and Performance of Obligations............32
SECTION 5.07 Compliance with Laws, Approvals and Agreements....33
SECTION 5.08 Compliance with ERISA.............................33
SECTION 5.09 Conduct of Business...............................33
SECTION 5.10 Loans or Advances.................................33
SECTION 5.11 Investments.......................................33
SECTION 5.12 Visits and Inspections............................33
SECTION 5.13 Limitations on Liens..............................34
SECTION 5.14 Limitations on Mergers, Liquidations and Sales
of Assets....................................35
SECTION 5.15 Certain Accounting Changes........................36
SECTION 5.16 Change in Fiscal Year.............................36
SECTION 5.17 Restrictive Agreements............................36
SECTION 5.18 Acquisitions......................................36
SECTION 5.19 Ratio of Consolidated Total Debt to Consolidated
Total Capitalization.........................36
SECTION 5.20 Limitation on Priority Debt.......................36
ARTICLE VI DEFAULTS...............................................36
SECTION 6.01 Events of Default.................................36
ARTICLE VII THE ADMINISTRATIVE AGENT...............................39
SECTION 7.01 Appointment, Powers and Immunities................39
SECTION 7.02 Reliance by Administrative Agent..................39
SECTION 7.03 Defaults..........................................40
SECTION 7.04 Rights of Administrative Agent and its
Affiliates as a Bank.........................40
SECTION 7.05 Indemnification...................................40
SECTION 7.06 CONSEQUENTIAL DAMAGES.............................40
SECTION 7.07 Payee of Note Treated as Owner....................41
SECTION 7.08 Non-Reliance on Administrative Agent and
Other Banks..................................41
SECTION 7.09 Failure to Act....................................41
SECTION 7.10 Resignation of Administrative Agent...............41
SECTION 7.11 Other Agents......................................42
ARTICLE VIII CHANGE IN CIRCUMSTANCES; COMPENSATION..................42
SECTION 8.01 Basis for Determining Interest Rate Inadequate
or Unfair....................................42
SECTION 8.02 Illegality........................................42
SECTION 8.03 Increased Cost and Reduced Return.................43
SECTION 8.04 Base Rate Loans Substituted for Affected
Euro-Dollar Loans............................44
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SECTION 8.05 Compensation......................................45
SECTION 8.06 Replacement of Banks..............................45
ARTICLE IX MISCELLANEOUS..........................................46
SECTION 9.01 Notices...........................................46
SECTION 9.02 No Waivers........................................46
SECTION 9.03 Expenses; Documentary Taxes; Indemnification......46
SECTION 9.04 Setoffs; Sharing of Set-Offs......................48
SECTION 9.05 Amendments and Waivers............................49
SECTION 9.06 Independence of Covenants.........................50
SECTION 9.07 Successors and Assigns............................50
SECTION 9.08 Confidentiality...................................52
SECTION 9.09 Representation by Banks...........................53
SECTION 9.10 Obligations Several...............................53
SECTION 9.11 Survival of Certain Obligations...................53
SECTION 9.12 Governing Law.....................................53
SECTION 9.13 Severability......................................53
SECTION 9.14 Interest..........................................53
SECTION 9.15 Interpretation....................................54
SECTION 9.16 Arbitration; Waiver of Jury Trial.................54
SECTION 9.17 Counterparts......................................55
SECTION 9.18 Source of Funds - ERISA...........................55
Schedule 1.01 Commitments
Schedule 3.01 Calculation of Upfront Fees
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 Note
EXHIBIT B Form of Opinion of Counsel for the Borrower
EXHIBIT C Form of Closing Certificate
EXHIBIT D Form of Secretary's Certificate
EXHIBIT E Form of Officer's Compliance Certificate
EXHIBIT F Form of Assignment and Acceptance
EXHIBIT G Form of Notice of Borrowing
EXHIBIT H Form of Notice of Continuation or Conversion
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CREDIT AGREEMENT
THIS CREDIT AGREEMENT dated as of October 17, 2003 among XXXXXX
RESTAURANTS, INC., a Florida corporation, the BANKS party hereto, and WACHOVIA
BANK, NATIONAL ASSOCIATION, as Administrative Agent.
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 London Interbank Offered Rate" has the meaning set forth in
Section 2.06(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 hereunder, and
its successors and permitted assigns in such capacity.
"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.
"Administrative Agent's Letter Agreement" means, collectively, those
certain letter agreements, each dated as of August 19, 2003, 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.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Applicable Facility Fee Rate" has the meaning set forth in Section
2.07(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 Utilization Fee Rate" has the meaning set forth in Section
2.07(b).
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.07(c) in the form attached hereto as Exhibit F.
"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 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 a borrowing hereunder consisting of Loans made to the
Borrower at the same time by the Banks pursuant to Article II. A Borrowing is a
"Base Rate Borrowing" if such Loans are Base Rate Loans or a "Euro-Dollar
Borrowing" if such Loans are Euro-Dollar Loans.
"Capital 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.
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"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 October 17, 2003.
"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 Acceptance (whether as transferor Bank or as
Assignee thereunder), the amount of such Bank's Commitment after giving effect
to such Assignment and Acceptance, in each case as such amount may be reduced
from time to time pursuant to Section 2.08. The initial aggregate Commitment is
$400,000,000.00.
"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 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 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 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
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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 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.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
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"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in North Carolina are authorized or required by
law to close.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"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-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan that bears or is to bear interest at a rate
based upon the Adjusted London Interbank Offered Rate, and to be made as a
Euro-Dollar loan pursuant to a Notice of Borrowing or continued as or converted
into a Euro-Dollar Loan pursuant to a Notice of Continuation or Conversion.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section 2.06(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 29, 1999, among the Borrower, the lenders party thereto, and Wachovia
Bank, N.A., as administrative agent, as the same has been amended or modified
from time to time.
"Foreign Bank" has the meaning set forth in Section 2.12(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 Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Wachovia on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
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"Fiscal Year" means any fiscal year of the Borrower.
"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.
"Interest Period" means with respect to each Euro-Dollar Borrowing, the
period commencing on the date of such Borrowing and ending on the numerically
corresponding day in the first, second, third or sixth month thereafter, as the
Borrower may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to clause (c) below) which would otherwise
end on a day which is not a Euro-Dollar Business Day shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case such Interest Period shall end on
the next preceding Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar Business Day
of a calendar month (or on a day for which there is no numerically corresponding
day in the
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appropriate subsequent calendar month) shall, subject to clause (c) below, end
on the last Euro-Dollar Business Day of the appropriate subsequent calendar
month; and
(c) no Interest Period may be selected which begins before the Termination
Date and would otherwise end after the Termination Date.
"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 Agent.
"IRS" means the United States Internal Revenue Service and any successor
Federal agency having similar powers.
"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.
"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 Base Rate Loan or a Euro-Dollar Loan, and "Loans" means Base
Rate Loans or Euro-Dollar Loans, or any or all of them, as the context shall
require.
"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, 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
2.06(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.
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"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 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:
(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.
"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 2.12(d).
"Note" means a promissory note of the Borrower, substantially in the form
of Exhibit A hereto, evidencing the obligation of the Borrower to repay the
Loans made by a Bank, together with all amendments, consolidations,
modifications, renewals and supplements thereto, and "Notes" means the 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 2.03.
"Officer's Compliance Certificate" has the meaning set forth in Section
5.01(b).
-8-
"Participant" has the meaning set forth in Section 9.07(b).
"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).
"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
-9-
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)
Domestic 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 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 Domestic Business Day, the next
succeeding Domestic 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(g).
"Related Fund" means, with respect to any Bank that is a fund that invests
in commercial loans, any other fund that invests in commercial loans and is
managed or advised by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
"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 aggregate outstanding principal
amount of the Notes.
"S&P" means Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies, Inc.
-10-
"SEC" means the Securities and Exchange Commission or any successor agency.
"Secretary's Certificate" has the meaning set forth in Section 3.01(e).
"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.
"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.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means October 17, 2008.
"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 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 aggregate outstanding principal amount of its
Loans.
"Wachovia" means Wachovia Bank, National Association, a national banking
association and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Borrower.
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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 "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.
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 Loans to the Borrower from time
to time before the Termination Date; provided that, immediately after each such
Loan is made, the aggregate outstanding principal amount of Loans by such Bank
shall not exceed the amount of its Commitment, provided further that the
aggregate principal amount of all Loans at any one time
-12-
outstanding shall not exceed the aggregate amount of the Commitments of all of
the Banks at such time. Each Euro-Dollar 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 Borrowing may be in the aggregate amount of the Total
Unused Commitments), and each 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 extent
permitted by Section 2.10, prepay Loans and reborrow under this Section at any
time before the Termination Date.
SECTION 2.02 Method of Borrowing Loans.
(a) The Borrower shall give the Administrative Agent notice in the form
attached hereto as Exhibit G (a "Notice of Borrowing") prior to 11:00 a.m.
(Charlotte, North Carolina time) on the Domestic Business Day of each Base Rate
Borrowing and at least three (3) Euro-Dollar Business Days before each
Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a Domestic Business Day
in the case of a Base Rate Borrowing or a Euro-Dollar Business Day in the
case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are to be Base Rate
Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Borrowing and such Notice of Borrowing shall not thereafter be
revocable by the Borrower.
(c) Not later than 1:00 p.m. (Charlotte, North Carolina time) on the date
of each Borrowing, each Bank shall (except as provided in subsection (d) of this
Section) make available its ratable share of such Borrowing, in Federal or other
funds immediately available in Charlotte, North Carolina, to the Administrative
Agent at its address referred to in or specified pursuant to Section 9.01.
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 address referred to
in Section 9.01, no later than 4:00 p.m. (local time at such address) on the
Domestic Business Day before the date of a Borrowing stating that such Bank will
not make a Loan in connection with such Borrowing, the Administrative Agent
shall be entitled to assume that such Bank will make a Loan in connection with
such 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
Borrowing to the Borrower for the account of such Bank. If the Administrative
Agent makes such Bank's ratable share available to the Borrower and such
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Bank does not in fact make its ratable share of such 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 Borrowing until such sum shall be paid in full at a
rate per annum equal to (x) the Federal Funds Rate from the date such payment is
due until the third Domestic 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 Borrowing, together with all interest pursuant to
the foregoing, it will have no interest in or rights with respect to such
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 Loan hereunder on a day on which the Borrower
is to repay all or any part of an outstanding Loan from such Bank, such Bank
shall apply the proceeds of its new 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
2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement,
no Euro-Dollar Borrowing may be made if there shall have occurred a Default,
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
Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar Loans,
such Loans shall be made as Base Rate Loans. If the Borrower is otherwise
entitled under this Agreement to repay any Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Loans using its own moneys and fails to give a
Notice of Borrowing in connection with such new Borrowing, a new Borrowing shall
be deemed to be made on the date such Loans mature in an amount equal to the
principal amount of the Loans so maturing, and the Loans comprising such new
Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, (i) there
shall not be more than eight (8) 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.
SECTION 2.03 Continuation and Conversion Elections. By delivering a notice
(a "Notice of Continuation or Conversion"), which shall be substantially in the
form of Exhibit H, to the Administrative Agent on or before 12:00 p.m.
(Charlotte, North Carolina time), on a Domestic Business Day (or Euro-Dollar
Business Day, in the case of Euro-Dollar Loans outstanding), the Borrower may
from time to time irrevocably elect, by notice on the same Domestic Business Day
as the date of such conversion in the case of a conversion to a Base Rate
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Loan or three (3) Euro-Dollar Business Days prior to the date of such
continuation or conversion in the case of a continuation of or conversion to a
Euro-Dollar Loan, that all, or any portion in an aggregate principal 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 Euro-Dollar Loans or (ii) in the case of
Euro-Dollar Loans, converted into Base Rate Loans or continued as Euro-Dollar
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, and (y) no portion of the outstanding principal amount of any Loans
may be continued as, or be converted into, any Euro-Dollar Loan when any Default
has occurred and is continuing. In the absence of delivery of a Notice of
Continuation or Conversion with respect to any Euro-Dollar Loan at least three
(3) Euro-Dollar Business Days before the last day of the then current Interest
Period with respect thereto, such Euro-Dollar Loan shall, on such last day,
automatically convert to a Base Rate Loan.
SECTION 2.04 Notes.
(a) Upon the request of any Bank, made through the Administrative Agent,
the Loans of each Bank shall be evidenced by a single 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 receipt of each Bank's Note pursuant to Section 3.01(b), the
Administrative Agent shall deliver such Note to such Bank. Each Bank shall
record, and prior to any transfer of its Note 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 Note, such Loan is a Base Rate Loan or a
Euro-Dollar 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 2.05 Maturity of Loans. All Loans shall mature, and the principal
amount thereof shall be due and payable, on the Termination Date.
SECTION 2.06 Interest Rates.
(a) "Applicable Margin" shall be the rate per annum set forth below
opposite the applicable Pricing Level:
.............................. ......................... ........................
Pricing Level Base Rate Loans Euro-Dollar Loans
.............................. ......................... ........................
Level I 0% 0.450%
.............................. ......................... ........................
Level II 0% 0.500%
.............................. ......................... ........................
Level III 0% 0.600%
.............................. ......................... ........................
Level IV 0% 0.825%
.............................. ......................... ........................
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Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent and shall be effective for Interest Periods applicable to
Euro-Dollar 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 Euro-Dollar 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 Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of 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
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means, for the Interest Period of such Euro-Dollar Loan, the rate per annum
determined on the basis of the offered rate for deposits in Dollars of amounts
equal or comparable to the principal amount of such Euro-Dollar Loan offered for
a term comparable to such Interest Period, which rates appear on Telerate Page
3750 effective as of 11:00 A.M., London time, two (2) Euro-Dollar 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 Agent, at approximately 10:00
A.M., New York City time, two (2) Euro-Dollar Business Days prior to the first
day of such Interest Period, for deposits in Dollars offered by leading European
banks for a period comparable to such Interest Period in an amount comparable to
the principal amount of such Euro-Dollar Loan.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
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(d) Any overdue principal of and, to the extent permitted by law, overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
(e) 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.
(f) 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 2.07 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 .100%
............................ ..........................
Level II .125%
............................ ..........................
Level III .150%
............................ ..........................
Level IV .175%
............................ ..........................
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. 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
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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:
............................ ....................................................
Pricing Level Less than 50% Greater than or equal to 50%
............................ ................. ..................................
Level I 0% 0.125%
............................ ................. ..................................
Level II 0% 0.125%
............................ ................. ..................................
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 2.08 Optional Termination or Reduction of Commitments. The Borrower
may, upon at least three (3) Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or 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 2.07) 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 2.09 Termination of Commitments. The Commitments shall terminate on
the Termination Date and any Loans then outstanding (together with accrued
interest thereon) shall be due and payable on such date.
SECTION 2.10 Optional Prepayments.
(a) The Borrower may, upon at least one (1) Domestic 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
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 Euro-Dollar Loan, upon three (3)
Euro-Dollar Business Days' prior written notice the Borrower may prepay in
minimum amounts of $5,000,000 or any
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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
Euro-Dollar Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to this Section 2.10,
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 2.11 Mandatory Prepayments. On each date on which the conditions
set forth in Section 2.01 are not satisfied (including, without limitation,
because the Commitments are reduced or terminated pursuant to Section 2.08 or
Section 2.09), the Borrower shall repay or prepay such principal amount of the
outstanding Loans, if any (together with interest accrued thereon and any
amounts due under Section 8.05(a)), as may be necessary so that after such
payment the aggregate unpaid principal amount of the Loans does not exceed the
aggregate amount of the Commitments as then reduced. Each such payment or
prepayment shall be applied to repay or prepay ratably the Loans of the several
Banks; provided that such prepayment shall be applied, first, to Base Rate Loans
outstanding on the date of such prepayment (in direct order of maturity) and
then, to the extent necessary, to Euro-Dollar Loans outstanding on the date of
such prepayment (in direct order of maturity).
SECTION 2.12 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of fees hereunder, without any setoff, counterclaim or any
deduction whatsoever, not later than 11:00 a.m. (Charlotte, North Carolina time)
on the date when due, in Federal or other funds immediately available in
Charlotte, North Carolina, to the Administrative Agent at its address referred
to in Section 9.01. 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.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or of fees shall be due on a day that is not a Domestic Business Day, the
date for payment thereof shall be extended to the next succeeding Domestic
Business Day. Whenever any payment of principal of, or interest on, the
Euro-Dollar Loans shall be due on a day that is not a Euro-Dollar Business Day,
the date for payment thereof shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business Day falls in another
calendar month, in which case the date for payment thereof shall be the next
preceding Euro-Dollar Business Day. If the date for any payment of principal is
extended by operation of law or otherwise, interest thereon shall be payable for
such extended time.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Loan or
fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or
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withholdings of any nature now or at anytime hereafter imposed by any
governmental authority or by any taxing authority thereof or therein excluding
in the case of each Bank, taxes imposed on or measured by its net income, and
franchise taxes imposed on it, by the jurisdiction under the laws of which such
Bank is organized or any political subdivision thereof and, in the case of each
Bank, taxes imposed on its income, and franchise taxes imposed on it, by the
jurisdiction of such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts, levies, duties,
deductions or withholdings of any nature being "Taxes"). In the event that the
Borrower is required by Applicable Law to make any such withholding or deduction
of Taxes with respect to any Loan, fee or other amount, or any such Loan, fee or
other amount is subject to Taxes payable by any Bank, the Borrower shall pay
such amount, deduction or withholding to the applicable taxing authority, shall
promptly furnish to any Bank in respect of which such deduction or withholding
is made all receipts and other documents evidencing such payment and shall pay
to such Bank additional amounts as may be necessary in order that the amount
received by such Bank after the required withholding or other payment shall
equal the amount such Bank would have received had no such withholding or other
payment been made. If no payment, withholding or deduction of Taxes is payable
in respect of any Loan or fee relating thereto, the Borrower shall furnish any
Bank, at such Bank's request, a certificate from each applicable taxing
authority or an opinion of counsel acceptable to such Bank, in either case
stating that such payments are exempt from or not subject to 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 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 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.
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(e) Upon the request of the Borrower, any 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 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 to pay any
additional amounts to any Bank in respect of U.S. Federal withholding tax
pursuant to Section 2.12 (d) or Section 2.12 (e) to the extent that the
obligation to pay such additional amounts would not have arisen but for a
failure by such Bank to comply with the provisions of such Sections. Should a
Bank become subject to Taxes because of its failure to deliver a form required
hereunder, the Borrower shall, at such Bank's expense, take such steps as such
Bank shall reasonably request to assist such Bank to recover such Taxes.
(g) Each of the Banks agrees that upon the occurrence of any circumstances
entitling such Bank to indemnification or additional amounts pursuant to this
Section, such 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 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 receives a refund of any Taxes paid by the
Borrower pursuant to this Section 2.12, it will pay to the Borrower the amount
of such refund promptly 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 2.12 shall be applicable with respect to any Participant, Assignee
or other Transferee, and any calculations required by such provisions (i) shall
be made based upon the circumstances of such Participant, Assignee or other
Transferee, and (ii) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Notes.
(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 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 on such due date an amount
equal to the amount then due such 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 shall repay to the Administrative Agent forthwith on demand such
amount distributed to such Bank, together with interest thereon, for each day
from the date such amount is distributed to such Bank until the date such Bank
repays such amount to the Administrative Agent, at the Federal Funds Rate for
the first three (3) Domestic Business Days after the date such payment is due
and at the Base Rate thereafter.
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SECTION 2.13 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). Interest on Base Rate Loans based on
the Federal Funds Rate and interest on Euro-Dollar Loans shall be computed on
the basis of a year of 360 days and paid for the actual number of days elapsed,
calculated as to each Interest Period from and including the first day thereof
to but excluding the last day thereof. Facility fees and any other fees payable
hereunder shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day).
SECTION 2.14 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.
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 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 Note for the
account of each Bank complying with the provisions of Section 2.04;
(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 B and covering such additional matters
relating to the transactions contemplated hereby as the Administrative Agent 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 C
hereto, signed by a principal
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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 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 D 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 for the account of each Bank of an
upfront fee calculated as set forth in Schedule 3.01 hereto;
(g) receipt by the Administrative Agent of evidence satisfactory to the
Administrative Agent, if any is required in addition to Section 2.14, that the
Borrower has repaid in full all amounts outstanding under the Existing Credit
Agreement, and that the Existing Credit Agreement is terminated; and
(h) receipt by the Administrative Agent of such other documents and items
as the Administrative Agent, the Banks or their counsel may reasonably request.
SECTION 3.02 Conditions to All Borrowings. The obligation of each Bank to
make a Loan on the occasion of each Borrowing is subject to the satisfaction of
the following conditions:
(a) receipt by the Administrative Agent of a Notice of Borrowing as
required by Section 2.02;
(b) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement (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 (i) the aggregate
outstanding principal amount of the Loans of each Bank will not exceed the
amount of its Commitment and
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(ii) the aggregate outstanding principal amount of the Loans will not exceed the
aggregate amount of the Commitments of all of the Banks as of such date.
Each Borrowing 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 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 Euro-Dollar 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 Euro-Dollar 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 Euro-Dollar 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 Euro-Dollar 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 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 prior to the Closing Date,
specifying its objection thereto.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent 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 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
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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 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.
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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 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
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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 25, 2003, and the related statements of income and
retained earnings and cash flows for the Fiscal Year then ended and unaudited
combined balance sheet of the Borrower and its Consolidated Subsidiaries as of
August 24, 2003, and related unaudited interim statements of income and retained
earnings and cash flows for the fiscal period then ended, copies of which have
been furnished to the Administrative Agent and each of the Banks, fairly
represent the assets, liabilities and financial position of the Borrower and its
Consolidated Subsidiaries as at such dates, and the results of the operations
and changes of financial position for the periods then ended. All such financial
statements, including any related schedules and notes thereto, have been
prepared in accordance with GAAP, subject, in the case of unaudited financial
statements, to year-end adjustments and the absence of footnotes. As of the
respective dates 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 25, 2003, 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,
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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 25, 2003, 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 25, 2003 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 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 and
each of the Banks (including without limitation a copy of Form 10-K for the
Borrower's Fiscal Year ended May 25, 2003, 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
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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 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 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:
(a) Financial Statements and Projections.
(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
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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) Domestic
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 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 treasurer of the Borrower in the form of Exhibit
E 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;
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(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;
(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.
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(d) Notice of Change of Debt Rating. Promptly, but in no event later than
five (5) Domestic 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 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 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 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.
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
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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 or any Bank
upon request such additional information about any Plan or Multiemployer Plan as
may be reasonably requested by the Administrative Agent 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 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 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,
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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;
(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;
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(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 to $25,000,000.
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;
(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.
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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 0.55 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 $25,000,000 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) Domestic Business
Days of the date when due any fee or other amount payable hereunder; or
(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
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(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 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
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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, and (ii) 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 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 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.
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ARTICLE VII
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment, Powers and Immunities. 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 any Bank; (b) makes no warranty or representation to any Bank and
shall not be responsible to the Banks for any recitals, statements,
representations or warranties contained in this Agreement or any other Loan
Document, or in any certificate or other document referred to or provided for
in, or received by any Bank under, this Agreement or any other Loan Document, or
for the validity, effectiveness, genuineness, enforceability or sufficiency of
this Agreement or any other Loan Document or any other document referred to or
provided for herein or therein or for any failure by the Borrower to perform any
of its obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Banks,
and then only on terms and conditions satisfactory to the 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 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 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 any Bank.
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.
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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 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 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 Banks.
SECTION 7.04 Rights of Administrative Agent and its Affiliates as a Bank.
With respect to its Commitment and the Loans made by it and any of its
Affiliates, Wachovia (and any successor acting as Administrative Agent
hereunder) in its capacity as a Bank hereunder, and any Affiliate of Wachovia in
its capacity as a Bank hereunder, shall have the same rights and powers
hereunder as any other Bank and may exercise the same as though it were not
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 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 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 BORROWER
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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. Each
Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own analysis and decisions in taking or not
taking action under this Agreement or any of the other Loan Documents. The
Administrative Agent shall not be required to keep itself (or any Bank) informed
as to the performance or observance by the Borrower of this Agreement or any of
the other Loan Documents or any other document referred to or provided for
herein or therein or to inspect the properties or books of the Borrower or any
other Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any other Person (or any of their Affiliates) which may come into
the possession of the 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 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 Banks and the Borrower.
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
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and (i) the retiring Administrative Agent shall be discharged from its duties
and obligations hereunder 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 and each Bank hereby acknowledges
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.
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 Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(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 Euro-Dollar
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 Euro-Dollar Loans specified in such notice, or
to permit continuations of or conversions into Euro-Dollar Loans, shall be
suspended. Unless the Borrower notifies the Administrative Agent at least two
(2) Euro-Dollar Business Days before the date of any Borrowing of Euro-Dollar
Loans for which a Notice of Borrowing has previously been given, or continuation
or conversion into such Euro-Dollar 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, or such Euro-Dollar Loan shall be
converted to a Base Rate Loan.
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 (any such event
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being referred to as a "Change of Law"), or compliance by any Bank (or its
Lending Office) with any request or directive (whether or not having the force
of law) of any Governmental Authority shall make it unlawful or impossible for
any Bank (or its Lending Office) to make, maintain or fund its Euro-Dollar Loans
and such Bank shall so notify the Administrative Agent, the Administrative Agent
shall forthwith give notice thereof to the other Banks and the Borrower,
whereupon until such Bank notifies the Borrower and the Administrative Agent
that the circumstances giving rise to such suspension no longer exist, the
obligation of such Bank to make or permit continuations of or conversions into
Euro-Dollar Loans shall be suspended. Before giving any notice to the
Administrative Agent pursuant to this Section 8.02, such Bank shall designate a
different Lending Office if such designation will avoid the need for giving such
notice and will not, in the judgment of such Bank, be otherwise disadvantageous
to such Bank. If such Bank shall determine that it may not lawfully continue to
maintain and fund any of its outstanding Euro-Dollar Loans to maturity and shall
so specify in such notice, the Borrower shall immediately prepay in full the
then outstanding principal amount of each Euro-Dollar Loan of such Bank,
together with accrued interest thereon and any amount due such Bank pursuant to
Section 8.05(a). Concurrently with prepaying each such Euro-Dollar Loan, the
Borrower shall borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable contemporaneously with
the related Euro-Dollar Loans of the other Banks), and such Bank shall make such
a Base Rate Loan.
SECTION 8.03 Increased Cost and Reduced Return.
(a) If after the date hereof, a Change of Law or compliance by any Bank (or
its Lending Office) with any request or directive (whether or not having the
force of law) of any Authority:
(i) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding, with respect to any Euro-Dollar Loan, any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office); or
(ii) shall impose on any Bank (or its Lending Office) or the London
interbank market any other condition affecting its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Loan, or to reduce the amount
of any sum received or receivable by such Bank (or its Lending Office) under
this Agreement or under its Notes with respect thereto, by an amount deemed by
such Bank to be material, then, within fifteen (15) days after written demand by
such Bank (with a copy to the Administrative Agent) specifying in reasonable
detail such Bank's calculations as to the amount owed to such Bank, the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
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.
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(b) If any 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 any Bank (or its Lending Office or the
bank holding company of which such 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 Bank's (or such bank holding company's) capital as a consequence
of its obligations hereunder to a level below that which such Bank (or such bank
holding company) could have achieved but for such adoption, change or compliance
(taking into consideration such Bank's (or such bank holding company's) policies
with respect to capital adequacy) by an amount deemed by such Bank to be
material, then from time to time, within fifteen (15) days after written demand
by such Bank specifying in reasonable detail such Bank's calculations as to the
amount owed to such Bank, the Borrower shall pay to such Bank such additional
amount or amounts as will compensate such Bank for such reduction, 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) 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 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 Bank, be otherwise disadvantageous to such Bank. A certificate
of any Bank claiming compensation under this Section and setting forth the
additional amount or amounts to be paid to it hereunder shall be conclusive in
the absence of manifest error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION 8.04 Base Rate Loans Substituted for Affected Euro-Dollar Loans. If
(i) the obligation of any Bank to make or maintain Euro-Dollar Loans has been
suspended pursuant to Section 8.02 or (ii) any Bank has demanded compensation
under Section 8.03, and the Borrower shall, by at least five (5) Euro-Dollar
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, Euro-Dollar 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
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
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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
incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09, Section 2.10,
Section 8.02 or otherwise) of a Euro-Dollar Loan on a date other than the last
day of an Interest Period for such Euro-Dollar Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan on the date
for such prepayment specified in the relevant notice of prepayment hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the date
for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part specified
in the applicable Notice of Borrowing delivered pursuant to Section 2.02;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as reasonably determined by such Bank) such Bank
would have paid on 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
Euro-Dollar Reserve Percentage), or gives notice under Section 8.02 that it can
no longer participate in Euro-Dollar 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
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any Notice Bank shall continue to be entitled to the indemnification provisions
contained elsewhere herein.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01 Notices. 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
(a) If to the Borrower, to it at 0000 Xxxx Xxxxxxx Xxxxx, Xxxxxxx, Xxxxxxx
00000, Attention: Xxxxxxx X. Xxxxx, III, Vice President and Treasurer, Facsimile
number: (000) 000-0000, Telephone number: (000) 000-0000, 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;
(b) 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, and (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, Loan Syndications - Agency Management, Facsimile number: (000) 000-0000;
and
(c) 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 (i) 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, (ii) 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 (iii) 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.
SECTION 9.02 No Waivers. No failure or delay by the Administrative Agent or
any Bank in exercising any right, power or privilege hereunder or under any Note
or other Loan Document shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 9.03 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of special counsel for
the Administrative Agent, in
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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 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 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 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 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 or any of the Banks to
enforce this Agreement or any of the other Loan Documents) or other proceeding
(including, without limitation, any threatened investigation or proceeding)
relating to the foregoing, and the Borrower shall reimburse the Administrative
Agent 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, 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.
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SECTION 9.04 Setoffs; Sharing of Set-Offs.
(a) The Borrower hereby grants to the Administrative Agent 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 or any such Bank or otherwise in the
possession or control of the Administrative Agent 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 or any such Bank, whether now existing or hereafter established,
authorizing the Administrative Agent 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 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 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 or any such Bank as soon as the
same may be put in transit to it by mail or carrier or by other bailee.
(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
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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;
(iv) fourth, to pay interest due in respect of Loans;
(v) fifth, to the ratable payment or prepayment of principal
outstanding on Loans in such order as the Administrative Agent may
determine in its sole discretion; and
(vi) sixth, 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 Euro-Dollar 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 (vi) 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. 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); 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 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 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
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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 (viii) release any guaranty given to support
payment of the Loans or (ix) change Section 9.07(c) without the consent of each
Bank that has assigned all or a portion of its Commitment or Loans to one or
more Related 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.
SECTION 9.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (excluding,
however, any of the Borrower's competitors and any of their respective
Affiliates) (each such qualifying Person, a "Participant") participating
interests in any Loan owing to such Bank, any Note held by such Bank, any
Commitment hereunder or any other interest of such Bank hereunder. In the event
of any such sale by a Bank of a participating interest to a Participant, such
Bank's obligations under this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank shall remain
the holder of any such Note for all purposes under this Agreement, and the
Borrower and the Administrative Agent shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under this
Agreement. In no event shall a Bank that sells a participation be obligated to
the Participant to take or refrain from taking any action hereunder except that
such Bank may agree that it will not (except as provided below), without the
consent of the Participant, agree to (i) the change of any date fixed for the
payment of principal of or interest on the related Loan or Loans, (ii) the
change of the amount of any principal, interest or fees due on any date fixed
for the payment thereof with respect to the related Loan or Loans, (iii) the
change of the principal of the related Loan or Loans, (iv) any change in the
rate at which either interest is payable thereon or (if the Participant is
entitled to any part thereof) any fee is payable hereunder from the rate at
which the Participant is entitled to receive interest or such fee (as the case
may be) in respect of such participation, (v) the release or substitution of all
or any substantial part of the collateral (if any) held as security for the
Loans, or (vi) the release of any guaranty given to support payment of the
Loans. Each Bank selling a participating interest in any Loan, Note, Commitment
or other interest under this Agreement shall, within ten (10) Domestic Business
Days of such sale, provide the Borrower and the Administrative Agent with
written notification stating that such sale has occurred and identifying the
Participant and the interest purchased by such Participant. The Borrower agrees
that each Participant shall be entitled to the benefits of Article VIII with
respect to its participation in Loans outstanding from time to time.
(c) Upon written notice to the Borrower delivered at least one (1) Domestic
Business Day prior to the proposed date of assignment, any Bank may at any time
assign to one or more banks or financial institutions (excluding, however, any
of the Borrower's competitors and any
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of their respective Affiliates) (each such qualifying bank or financial
institution, an "Assignee") all, or a proportionate part of all, of its rights
and obligations under this Agreement, the Notes and the other Loan Documents,
and such Assignee shall assume all such rights and obligations, pursuant to an
Assignment and Acceptance, executed by such Assignee, such transferor Bank and
the Administrative Agent (and, in the case of: (i) an Assignee that is not then
a Bank or an Affiliate of a Bank; and (ii) an assignment not made during the
existence of a Default, by the Borrower); provided that (i) no interest may be
sold by a Bank pursuant to this paragraph (c) unless the Assignee shall agree to
assume ratably equivalent portions of the transferor Bank's Commitment, (ii) the
amount of the Commitment of the assigning Bank being assigned pursuant to such
assignment (determined as of the effective date of the assignment) shall be
equal to or greater than $5,000,000, (iii) no interest may be sold by a Bank
pursuant to this paragraph (c) to any Assignee that is not then a Bank or an
Affiliate of a Bank without the consent of the Borrower, which consent shall not
be unreasonably withheld, provided that the Borrower's consent shall not be
necessary with respect to any assignment made during the existence of a Default
and (iv) no interest may be sold by a Bank pursuant to this paragraph (c) to any
Assignee that is not then a Bank or an Affiliate of a Bank, without the consent
of the Administrative Agent, which consent shall not be unreasonably withheld,
provided, that although the Administrative Agent's consent may not be necessary
with respect to an Assignee that is then a Bank or an Affiliate of a Bank, no
such assignment shall be effective until the conditions set forth in the
following sentence are satisfied. Upon (A) execution of the Assignment and
Acceptance by such transferor Bank, such Assignee, the Administrative Agent and
(if applicable) the Borrower, (B) delivery of an executed copy of the Assignment
and Acceptance to the Borrower and the Administrative Agent, (C) payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and (D) payment by the assigning
Bank of a processing and recordation fee of $3,500 to the Administrative Agent,
such Assignee shall for all purposes be a Bank party to this Agreement and shall
have all the rights and obligations of a Bank under this Agreement to the same
extent as if it were an original party hereto with a Commitment as set forth in
such instrument of assumption, and the transferor Bank shall be released from
its obligations hereunder to a corresponding extent, and no further consent or
action by the Borrower, the Banks or the Administrative Agent shall be required.
Upon the consummation of any transfer to an Assignee pursuant to this paragraph
(c), the transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower authorizes each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
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(f) Anything in this Section 9.07 to the contrary notwithstanding, any Bank
may assign and pledge all or any portion of the Loans and/or obligations owing
to it to any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans and/or obligations
made by the Borrower to the assigning and/or pledging Bank in accordance with
the terms of this Agreement shall satisfy the Borrower's obligations hereunder
in respect of such assigned Loans and/or obligations to the extent of such
payment. No such assignment shall release the assigning and/or pledging Bank
from its obligations hereunder.
(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 Acceptance delivered to it and a register for the
recordation of the names and addresses of the Banks, and the Commitments of, and
principal amount 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,
at any reasonable time and from time to time upon reasonable prior notice.
SECTION 9.08 Confidentiality. Each Bank agrees to exercise its best efforts
to keep any information delivered or made available by the Borrower to it which
is clearly indicated to be confidential information, confidential from anyone
other than persons employed or retained by such Bank who are or are expected to
become engaged in evaluating, approving, structuring or administering the Loans;
provided, however, that nothing herein shall prevent any Bank from disclosing
such information (i) to any other Bank or to an Affiliate of such Bank, (ii)
upon the order of any court or administrative agency, (iii) upon the request or
demand of any regulatory agency or authority having jurisdiction over such Bank,
(iv) which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, or under any
Hedging Agreement to which any Bank or their respective Affiliates may be a
party or the credit support therefor (vii) to such 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, 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 no 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. Notwithstanding anything herein to the contrary, any party subject to
confidentiality obligations hereunder or under any related document (and any
employee, representative or other agent of such party) may disclose to any and
all persons, without limitation of any kind, such party's U.S. federal income
tax treatment and the U.S. federal income tax structure of the transactions
contemplated herein, including marketing documents, relating to such party and
all materials of any kind (including opinions and other tax
-52-
analyses) that are provided to it relating to such tax treatment and tax
structure. However, no such party shall disclose any information relating to
such tax treatment and tax structure to the extent nondisclosure is reasonably
necessary to comply with applicable securities laws. 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. 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 each Bank hereunder
are several, and no Bank shall be responsible for the obligations or commitment
of any other Bank hereunder. Nothing contained in this Agreement and no action
taken by the Banks pursuant hereto shall be deemed to constitute the Banks to be
a partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Bank shall be a separate and
independent debt, and each Bank shall be entitled to protect and enforce its
rights arising out of this Agreement or any other Loan Document and it shall not
be necessary for any other Bank to be joined as an additional party in any
proceeding for such purpose.
SECTION 9.11 Survival of Certain Obligations. Sections 8.03(a), 8.03(b),
8.05 and 9.03, and the obligations of the Borrower thereunder, shall survive,
and shall continue to be enforceable notwithstanding, the termination of this
Agreement and the Commitments and the payment in full of the principal of and
interest on all Loans.
SECTION 9.12 Governing Law. This Agreement and each Note shall be construed
in accordance with and governed by the law of the State of North Carolina.
SECTION 9.13 Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14 Interest. In no event shall the amount of interest, 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
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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 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 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 for,
charged or received by the Administrative Agent 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 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 Arbitration; Waiver of Jury Trial.
(a) Arbitration.
(i) Upon demand of any party hereto, whether made before or after
institution of any judicial proceeding, any claim or controversy arising
out of or relating to this Agreement or any other Loan Document (a
"Dispute") shall be resolved by binding arbitration conducted under and
governed by the Commercial Financial Disputes Arbitration Rules (the
"Arbitration Rules") of the American Arbitration Association (the "AAA")
and the Federal Arbitration Act. Disputes may include, without limitation,
tort claims, counterclaims, a dispute as to whether a matter is subject to
arbitration, claims brought as class actions, or claims arising from
documents executed in the future. A judgment upon the award may be entered
in any court having jurisdiction. Notwithstanding the foregoing, this
arbitration provision does not apply to disputes under or related to
Hedging Agreements.
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(ii) All arbitration hearings shall be conducted in Charlotte, North
Carolina. A hearing shall begin within 90 days of demand for arbitration
and all hearings shall conclude within 120 days of demand for arbitration.
These time limitations may not be extended unless a party shows cause for
extension and then for no more than a total of 60 days. The expedited
procedures set forth in Rule 51 et seq. of the Arbitration Rules shall be
applicable to claims of less than $1,000,000.00. Arbitrators shall be
licensed attorneys selected from the Commercial Financial Dispute
Arbitration Panel of the AAA. The parties do not waive applicable Federal
or state substantive law except as provided herein.
(iii) Notwithstanding the preceding binding arbitration provisions,
the parties agree to preserve, without diminution, certain remedies that
any party may exercise before or after an arbitration proceeding is
brought. The parties shall have the right to proceed in any court of proper
jurisdiction or by self-help to exercise or prosecute the following
remedies, as applicable: (i) all rights to foreclose against any real or
personal property or other security by exercising a power of sale or under
applicable law by judicial foreclosure including a proceeding to confirm
the sale; (ii) all rights of self-help including peaceful occupation of
real property and collection of rents, set-off, and peaceful possession of
personal property; (iii) obtaining provisional or ancillary remedies
including injunctive relief, sequestration, garnishment, attachment,
appointment of receiver and filing an involuntary bankruptcy proceeding;
and (iv) when applicable, a judgment by confession of judgment. Any claim
or controversy with regard to any party's entitlement to such remedies is a
Dispute.
(iv) The parties agree that they shall not have a remedy of punitive
or exemplary damages against other parties in any Dispute and hereby waive
any right or claim to punitive or exemplary damages they have now or which
may arise in the future in connection with any Dispute whether the Dispute
is resolved by arbitration or judicially.
(b) WAIVER OF JURY TRIAL. THE PARTIES ACKNOWLEDGE THAT BY AGREEING TO
BINDING ARBITRATION THEY HAVE, TO THE EXTENT PERMITTED BY APPLICABLE LAW,
IRREVOCABLY WAIVED ANY RIGHT THEY MAY HAVE TO JURY TRIAL WITH REGARD TO A
DISPUTE.
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
BORROWER:
XXXXXX RESTAURANTS, INC.
By:/s/ Xxxxxxx X. Xxxxx, III
--------------------------------
Name: Xxxxxxx X. Xxxxx, III
Title: Vice President and Treasurer
Signature Page to Credit Agreement
Page 1 of 10
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
Signature Page to Credit Agreement
Page 2 of 10
BANKS:
BANK OF AMERICA, N.A., as
Documentation Agent and as a Bank
By: /s/ Chitt Swamidasan
-------------------------------
Name: Chitt Swamidasan
Title: Principal
Signature Page to Credit Agreement
Page 3 of 10
SUNTRUST BANK, as Syndication Agent
and as a Bank
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
Signature Page to Credit Agreement
Page 4 of 10
COMERICA BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxx, Xx.
-------------------------------
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
Signature Page to Credit Agreement
Page 5 of 10
FIFTH THIRD BANK, as a Bank
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Signature Page to Credit Agreement
Page 6 of 10
XXXXX FARGO BANK, NATIONAL
ASSOCIATION, as a Bank
By: /s/ Xxxx Xxxxxxxxx
------------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
By: /s/ Xxxxxxx X. Xxxxx
--------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Vice President
Signature Page to Credit Agreement
Page 7 of 10
U.S. BANK NATIONAL ASSOCIATION, as a
Bank
By: /s/ Xxxxxxx X. Xxxx
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Vice President
Signature Page to Credit Agreement
Page 8 of 10
CITIBANK, N.A., as a Bank
By: /s/ Xxxxx X. Xxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
Signature Page to Credit Agreement
Page 9 of 10
FLEET NATIONAL BANK, as a Bank
By: /s/ Xxxxxx X. XxxXxxxxxx
-------------------------------
Name: Xxxxxx X. XxxXxxxxxx
Title: Director
Signature Page to Credit Agreement
Page 10 of 10
SCHEDULE 1.01
Commitments
................................................................................
Bank Commitment
................................................................................
Wachovia Bank $80,000,000
................................................................................
SunTrust Bank 55,000,000
................................................................................
Bank of America 55,000,000
................................................................................
Comerica Bank 35,000,000
................................................................................
Fleet National Bank 35,000,000
................................................................................
Citibank 35,000,000
................................................................................
Fifth Third Bank 35,000,000
................................................................................
Xxxxx Fargo Bank 35,000,000
................................................................................
US Bank 35,000,000
................................................................................
TOTAL COMMITMENT: $400,000,000.00
................................................................................
SCHEDULE 3.01
Calculation of Upfront Fees
................................................ .........................
Committed Amount Fee (bps)
................................................ .........................
Greater than or equal to $55,000,000 0.125%
................................................ .........................
Greater than or equal to $35,000,000 but less 0.100%
than $55,000,000
................................................ .........................
Total Upfront Fees (dollars): $447,500
................................................ .........................
SCHEDULE 4.02
Material Subsidiaries
Material Subsidiary Incorporated In % of Total Revenues* % of Total Assets*
------------------- --------------- ------------------- -----------------
GMRI, Inc. Florida 83.58% 74.98%
March 27, 1968
GMRI Texas L.P. Texas 6.72%
December 19, 1997
---------------------
*For the Fiscal Quarter ended August 24, 2003
SCHEDULE 4.08
Environmental Matters
NONE
SCHEDULE 4.09
ERISA Disclosure
NONE
SCHEDULE 4.14
Xxxxxx Restaurants, Inc.
Consolidated Total Debt Calculation
As of Xxxxxx 00, 0000
(Xx xxxxxxxxx)
x) Interest Bearing Debt:
10 year, 6.375 % unsecured notes, due Feb 2006 $150,000
20 year, 7.125% unsecured debentures, due Feb 2016 100,000
10 year, 7.45% unsecured notes, due Apr 2011 75,000
5 year, 8.375% unsecured notes, due Sept 2005 150,000
5 year, 5.750% unsecured notes, due Mar 2007 150,000
ESOP Loan, variable rate, due Dec 2018 33,145
Short term commercial paper -
Other, fixed rate debt -
Subtotal ---------
$ 658,145
(b) Deferred Purchase Price Obligations -
(c) Consolidated Capitalized Lease Obligations -
(d) Liens 4,729 (1)
(e) Banker's Acceptances -
(f) Consolidated Operating Lease Obligations 63,357 (2)
Capitalization Factor 6.25
-------
Product 395,981
(g) Net Obligations on Hedging Agreements -
(h) Guarantees and Contingent Liabilities 4,057 (3)
----------
Total $1,062,912
==============
Notes:
(1) See Attachment 1.
(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.
Attachment 1 to Schedule 4.14
Liens
Restaurant Concept / # Location Name Lienor Date Amount
---------------------- ------------- ------ ---- ------
RL #0000 Xxxxxxx, XX XXXX Mechanical 4/30/03 $104,305.07
RL #0000 Xxxxxxx, XX XXXX Mechanical 6/02/03 104,305.07
RL #0000 Xxxxxx, XX XX Xxxxxx 5/01/00 106,261.73
RL #0000 Xxxxxx, XX XX Xxxxxx 5/09/00 106,261.73
RL #0000 Xxxxxx, XX Lakewood Carpentry 08/29/00 170,516.00
BB #0000 Xxxxxx Xxxx, XX X.X Xxxxxxxx Concrete & 7/15/03 202,031.32
Construction, Inc.
RL #0000 Xxxxxxxx, XX NJD Wiring 4/09/03 219,272.95
RL #0000 Xxxxxx Xxxx, XX Landsville Development 6/25/01 259,855.00
BB #0000 Xxxxxxxx Xxxxx, XX Xxxxxxx & Xxxxx 01/31/01 1,004,437.00
All Liens Less than $100,000 2,452,020.45
------------
Total $ 4,729,266.32
Attachment 2
to
Schedule 4.14
Xxxxxx Restaurants, Inc.
Guarantees And Contingent Liabilities
Ending August 24, 2003
CONCEPT PROPERTY STATUS GUARANTEE OR TOTAL LIABILITY
CONTINGENT LIABILITY
XXXX XXXXXXXX Xxxx #00 Lease assigned to El Torito. Rent increases $1,000 per year $ 44,000
Winston-Salem, NC Term of original lease is Until 16th lease year then
4/83 through 4/04. $2,000. 17th lease year rent is
$58,000
XXXX XXXXXXXX Xxxx #00 Lease assigned to El Torito. Rent increases 4% per year 424,535
Daytona Beach, FL Term of original lease is through end of term. 18th
4/82 through 4/08. lease year rent is $72,790.
XXXX XXXXXXXX Xxxx #00 Lease assigned to El Torito. Annual rent years: 1-5 is 16,250
Tampa, FL Term of original lease is $50,000, 6-10 is $55,000,11-15 is
8/83 through 12/03. $60,000 and 16-20 is $65,000.
XXXX XXXXXXXX Xxxx #00 Lease assigned to El Torito. Annual rent years: 1-5 is 7,500
Evansville, IN Term of original lease is $28,000,6-10 is $35,000, 11-15 is
11/82 through 11/02. $40,000 and 16-20 is $45,000.
RED LOBSTER Unit #242 Land lease assigned to $30,000 per year through 3/30/07 107,500
Nashville, TN Allied Partners (1)
RED LOBSTER Unit #527 Land lease assigned to $236,456 per year through 4/27/11 1,812,830
Norwalk, CA Country Harvest Buffet (2)
Restaurants
CHINA COAST Unit #6025 Lease assigned to Xxxxxx'x Seafood. Annual rent years: 1-5 is $80,000, 582,667
Indianapolis, IN Term of original lease is 6-10 is $92,000, 11-15 is
10/93 through 3/09. $105,800
DARRYLS Unit #1871 Property was sold and lease $7,500 per year through 5/09 43,125
Birmingham, AL assigned to New Orleans Cafe.
OLIVE GARDEN Unit #1308 Land lease assigned to Hof's Hut Annual rent years: 1-5 is $84,000, 1,018,328
Tustin, CA Restaurants. Term of original lease 6-10 is $96,600, 11-15 is $111,090
1/92 through 1/12. and 16-20 is $127,754
TOTAL $4,056,735
(1) The contingent liability has increased to 3/30/07 due to two
automatic lease extensions (5 years per extension).
(2) Annual rate increases by CPI 10/28/01 - 10/27/06 and 10/28/06 -
4/27/11. Most recent annual rate of $236,456 was used to calculate
total liability.
SCHEDULE 4.15
Litigation Disclosure
NONE
EXHIBIT A
NOTE
$____________ Charlotte, North Carolina
______________, 2003
For value received, XXXXXX RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of _____________________________ (the
"Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Loan 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 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 Loans 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 Note is one of the Notes referred to in the Credit Agreement dated as
of October 17, 2003 among the Borrower, the banks listed on the signature pages
thereof and their successors and assigns, and Wachovia Bank, National
Association, as Administrative Agent (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 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 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
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
.................................................................................
Amount of
Type of Interest Amount of Principal Maturity Notation
Date Loan* Rate Loan Repaid Date Made By
---- ----- ---- ------- ------ ---------- -------
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
............ ............ .......... .......... ........... .......... ..........
------------------------
* I.e., a Base Rate or Euro-Dollar Loan
A-3
EXHIBIT B
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 October 17, 2003, among the Borrower, the banks listed on the signature
pages thereof and Wachovia Bank, National Association, as Administrative Agent.
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,
B-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.
B-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 North Carolina 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 North Carolina 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,
B-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.
B-4
EXHIBIT C
CLOSING CERTIFICATE
OF
XXXXXX RESTAURANTS, INC.
Reference is made to the Credit Agreement (the "Credit Agreement") dated as
of October 17, 2003, among Xxxxxx Restaurants, Inc. (the "Borrower"), Wachovia
Bank, National Association, as Administrative Agent and as a Bank, and certain
other Banks listed on the signature pages thereof. Capitalized terms used herein
have the meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(d) 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 ____ day of _________________, 2003.
XXXXXX RESTAURANTS, INC.
By: _______________________
Print: _______________________
Title: _______________________
EXHIBIT X
XXXXXX RESTAURANTS, INC.
SECRETARY'S CERTIFICATE
The undersigned, _____________, _______ Secretary of Xxxxxx Restaurants,
Inc., a Florida corporation (the "Borrower"), hereby certifies that he has been
duly elected, qualified and is acting in such capacity and that, as such, he 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 October 17, 2003 among the Borrower, Wachovia Bank, National
Association, as Administrative Agent and as a Bank, and certain other Banks
listed on the signature pages thereof, 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
___________ __, 2003 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 signed
the Credit Agreement, the Notes and other Loan Documents to which the Borrower
is a party, and his signature appearing on the Credit Agreement, the Notes and
the other Loan Documents to which the Borrower is a party is his genuine
signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
____ day of ______________, 2003.
By: _______________________
Print: _______________________
Title: _______________________
EXHIBIT E
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 Banks
(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 October 17, 2003 (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: _______________________
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 ____%
Euro-Dollar 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: 0.55 to 1.00
Schedule 2
to
Officer's Compliance Certificate
.................................................................................
Material Subsidiary Incorporated In % of Total Revenues % of Total Assets
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
...................... .................. ..................... .................
EXHIBIT F
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Credit Agreement dated as of October 17, 2003
(together with all amendments and modifications thereto, the "Credit Agreement")
among Xxxxxx Restaurants, Inc., a Florida corporation (the "Borrower"), the
Banks (as defined in the Credit Agreement), and Wachovia Bank, National
Association, as Administrative Agent (the "Administrative Agent"). Terms defined
in the Credit Agreement are used herein with the same meaning.
_____________________________________________________ (the "Assignor") and
_____________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without recourse
to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a ______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ______% interest (which on the
Effective Date hereof is $_______________) in the Assignor's Commitment and a
______% interest (which on the Effective Date hereof is $_______________) in the
Loans owing to the Assignor and a ______% interest in the Note held by the
Assignor (which on the Effective Date hereof is $------------------).
2. The Assignor (i) has delivered written notice to the Borrower of the
assignment to be made pursuant to this Assignment and Acceptance, as required
pursuant to Section 9.07(c) of the Credit Agreement, (ii) makes no
representation or warranty other than as set forth in clause (i) of this
paragraph and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, any other instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder, that such
interest is free and clear of any adverse claim and that as of the date hereof
its Commitment (without giving effect to assignments thereof which have not yet
become effective) is $_________________ and the aggregate outstanding principal
amount of Loans owing to it (without giving effect to assignments thereof which
have not yet become effective) is $_________________; (iii) makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of the Borrower or the performance or observance by the
Borrower of any of its obligations under the Credit Agreement, any other Loan
Document or any other instrument or document furnished pursuant thereto; and
(iv) attaches the Note referred to in paragraph 1 above and requests that the
Administrative Agent exchange such Note as follows: [a new Note dated
_______________, ____ in the principal amount of _________________ payable to
the order of the Assignee] [new Notes as follows: a Note dated
_________________, ____ in the principal amount of $_______________ payable to
the order of the Assignor and a Note dated ______________, ____ in the principal
amount of $______________ payable to the order of the Assignee].
F-1
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.12(a) thereof (or any more recent financial statements of the Borrower
delivered pursuant to Section 5.01(a)(i) or (ii) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the 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 Credit Agreement; (iii) confirms that it
is a bank or financial institution; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank; (vi) specifies as its Lending Office
(and address for notices) the office set forth beneath its name on the signature
pages hereof, (vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its corporate powers
and have been duly authorized by all necessary corporate action[, and (viii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such taxes at a rate reduced by an applicable tax treaty].*
4. The Effective Date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent [and to the Borrower for
execution by the Borrower]**.
5. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent rights and
obligations have been transferred to it by this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent its rights and obligations have been transferred to the Assignee by
this Assignment and Acceptance, relinquish its rights (other than under Section
8.03 and Section 9.03 of the Credit Agreement) and be released from its
obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the interest assigned
hereby to the Assignee. The Assignor and Assignee shall make all appropriate
adjustments in payments for periods prior to such acceptance by the
Administrative Agent directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed in
accordance with, the laws of the State of North Carolina.
--------------------------------
*If the Assignee is organized under the laws of a jurisdiction outside the
United States.
**If required under the Credit Agreement.
F-2
[NAME OF ASSIGNOR]
By: _______________________
Print: _______________________
Title: _______________________
[NAME OF ASSIGNEE]
By: _______________________
Print: _______________________
Title: _______________________
Lending Office:
[Address]
WACHOVIA BANK, NATIONAL
ASSOCIATION, as Administrative
Agent
By: _______________________
Print: _______________________
Title: _______________________
[XXXXXX RESTAURANTS, INC.]**
By: _______________________
Print: _______________________
Title: _______________________
F-3
EXHIBIT G
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 October 17, 2003 by and among
Xxxxxx Restaurants, Inc., the Banks from time to time parties
thereto, and Wachovia Bank, National Association, as
Administrative Agent
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 [Euro-Dollar Borrowing][Base Rate Borrowing]
in the aggregate principal amount of $___________ to be made on ________, ____,
and for interest to accrue thereon at the rate established by the Credit
Agreement for [Euro-Dollar Loans] [Base Rate Loans]. [The Interest Period with
respect to such Euro-Dollar 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: _______________________
EXHIBIT H
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 October 17, 2003 by and among
Xxxxxx Restaurants, Inc., the Banks from time to time parties
thereto, and Wachovia Bank, National Association, as
Administrative Agent.
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 2.03 of the Credit Agreement.
With respect to the [Base Rate Loans] [Euro-Dollar Loans] in the aggregate
amount of $___________ [which has an Interest Period ending on _____________],
the Borrower hereby requests that such loan be [converted to a] [Base Rate Loan]
[Euro-Dollar Loan] [continued as a] [Euro-Dollar Loan] in the aggregate
principal amount of $__________ to be made on such date, and for interest to
accrue thereon at the rate established by the Credit Agreement for [Base Rate
Loans] [Euro-Dollar Loans]. [The Interest Period with respect to such
Euro-Dollar 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: _______________________
Title: _______________________
