REVOLVING CREDIT
AND TERM LOAN AGREEMENT
dated as of July 26, 2002
among
RUBY TUESDAY, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent, Issuing Bank and
Swingline Lender
====================================================================
SUNTRUST CAPITAL MARKETS, INC.
as Lead Arranger and Book Manager
TABLE OF CONTENTS
Page
Schedules
Schedule 1.1 - Applicable Margin and Applicable Commitment
Fee Percentage
Schedule 4.14 - Subsidiaries
Schedule 7.1 - Outstanding Indebtedness
Schedule 7.2 - Existing Liens
Schedule 7.4 - Existing Investments
Exhibits
Exhibit A - Revolving Credit Note
Exhibit B - Term Note
Exhibit C - Swingline Note
Exhibit D - Form of Assignment and Acceptance
Exhibit E - Form of Subsidiary Guaranty Agreement
Exhibit F - Form of Indemnity, Subrogation and Contribution
Agreement
Exhibit 2.3 - Notice of Revolving Borrowing
Exhibit 2.6 - Notice of Swingline Borrowing
Exhibit 2.8 - Form of Continuation/Conversion
Exhibit 3.1(b)(iv) - Form of Secretary's Certificate of Ruby
Tuesday, Inc.
Exhibit 3.1(b)(vii) - Form of Officer's Certificate
REVOLVING CREDIT
AND TERM LOAN AGREEMENT
THIS REVOLVING CREDIT AND TERM LOAN AGREEMENT (this "Agreement") is made and
entered into as of July 26, 2002, by and among RUBY TUESDAY, INC., a Georgia
corporation (the "Borrower"), the several banks and other financial institutions
from time to time party hereto (the "Lenders"), and SUNTRUST BANK, in its
capacity as Administrative Agent for the Lenders (the "Administrative Agent"),
as Issuing Bank (the "Issuing Bank"), and as Swingline Lender (the "Swingline
Lender").
W I T N E S S E T H:
WHEREAS, the Borrower has requested that the Lenders (a) establish a
$200,642,560.02 revolving credit facility (which shall include a $10,000,000
swingline subcommitment and a $15,000,000 letter of credit subcommitment); and
(b) make a $70,423,886.37 term loan, in favor of the Borrower;
WHEREAS, subject to the terms and conditions of this Agreement, the
Lenders severally, to the extent of their respective Commitments as defined
herein, are willing to severally establish the requested revolving credit
facility and severally make the terms loans to the Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual
covenants herein contained, the Borrower, the Lenders, the Administrative Agent,
the Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. In addition to the other terms defined herein, the
following terms used herein shall have the meanings herein specified (to be
equally applicable to both the singular and plural forms of the terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest Period
for a Eurodollar Borrowing, the rate per annum obtained by dividing (i) LIBOR
for such Interest Period by (ii) a percentage equal to 1.00 minus the Eurodollar
Reserve Percentage.
"Adjusted Total Capital" shall mean, as of any date of determination,
the sum of (i) Adjusted Total Debt as of such date and (ii) Consolidated Net
Worth as of such date.
"Adjusted Total Debt" shall mean, as of any date of determination, (i)
all Indebtedness of the Borrower and its Subsidiaries on a consolidated basis,
including without limitation all Loans and LC Exposure, but excluding all
Indebtedness of the type described in subsection (xi) of the definition of
Indebtedness and excluding any Synthetic Lease Obligations to the extent that
such Synthetic Lease Obligations are included in clause (ii) below, plus (ii) to
the extent not included in clause (i), the present value of all lease
obligations arising under operating leases of Borrower and its Subsidiaries as
determined in accordance with GAAP, applying a discount rate of ten percent
(10%).
"Adjusted Total Debt to Adjusted Total Capital Ratio" shall mean, as of
any date of determination, the ratio of (i) Adjusted Total Debt as of such date
to (ii) Adjusted Total Capital as of such date.
"Adjusted Total Debt to EBITDAR Ratio" shall mean, as of any date of
determination, the ratio of (i) Adjusted Total Debt as of such date to (ii)
Consolidated EBITDAR as of such date, measured for the four Fiscal Quarter
period ending on such date.
"Administrative Agent" shall have the meaning assigned to such term in
the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to each Lender,
an administrative questionnaire in the form prepared by the Administrative Agent
and submitted to the Administrative Agent duly completed by such Lender.
"Affiliate" shall mean, as to any Person, any other Person that
directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"Aggregate Revolving Commitment Amount" shall mean the aggregate
principal amount of the Revolving Commitments of all Lenders from time to time.
On the Closing Date, the Aggregate Revolving Commitment Amount equals
$200,642,560.02.
"Aggregate Revolving Commitments" shall mean, collectively, all
Revolving Commitments of all Lenders at any time outstanding.
"American Caf" shall mean "American Caf", "Silverspoon" or "Mozzarella's
American Caf", previously an operating concept of the Borrower.
"Applicable Commitment Fee Percentage" shall mean, as of any date, the
percentage per annum determined by reference to the applicable Adjusted Total
Debt to EBITDAR Ratio in effect on such date as set forth on Schedule 1.1
attached hereto; provided, that a change in the Applicable Commitment Fee
Percentage resulting from a change in the Adjusted Total Debt to EBITDAR Ratio
shall be effective on the second Business Day after the date the Borrower is
required to deliver the financial statements required by Section 5.1(a) or (b)
and the compliance certificate required by Section 5.1 (c); provided, further,
that if at any time the Borrower shall have failed to deliver such financial
statements and such certificate, the Applicable Commitment Fee Percentage shall
be at Level IV until such time as such financial statements and certificate are
delivered, at which time the Applicable Commitment Fee Percentage shall be
determined as provided above. Notwithstanding the foregoing, the Applicable
Commitment Fee Percentage from the Closing Date until the first financial
statement and compliance certificate are required to be delivered shall be at
Level II.
"Applicable Lending Office" shall mean, for each Lender and for each
Type of Loan, the "Lending Office" of such Lender (or an Affiliate of such
Lender) designated for such Type of Loan in the Administrative Questionnaire
submitted by such Lender or such other office of such Lender (or an Affiliate of
such Lender) as such Lender may from time to time specify to the Administrative
Agent and the Borrower as the office by which its Loans of such Type are to be
made and maintained.
"Applicable Margin" shall mean, as of any date, the percentage per annum
determined by reference to the applicable Adjusted Total Debt to EBITDAR Ratio
in effect on such date as set forth on Schedule 1.1 attached hereto; provided,
that a change in the Applicable Margin resulting from a change in such ratio
shall be effective on the second Business Day after which the Borrower is
required to deliver the financial statements required by Section 5.1(a) or (b)
and the compliance certificate required by Section 5.1(c); provided, further,
that if at any time the Borrower shall have failed to deliver such financial
statements and such certificate, the Applicable Margin shall be at Level IV
until such time as such financial statements and certificate are delivered, at
which time the Applicable Margin shall be determined as provided above.
Notwithstanding the foregoing, the Applicable Margin from the Closing Date until
the first financial statement and compliance certificate are required to be
delivered shall be at Level II.
"Approved Fund" means any Person (other than a natural Person) that is
(or will be) engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary course of its
business and that is administered or managed by (a) a Lender, (b) an Affiliate
of a Lender or (c) an entity or an Affiliate of an entity that administers or
manages a Lender.
"Assignment and Acceptance" shall mean an assignment and acceptance
entered into by a Lender and an assignee (with the consent of any party whose
consent is required by Section 10.4(b)) and accepted by the Administrative
Agent, in the form of Exhibit D attached hereto or any other form approved by
the Administrative Agent.
"Availability Period" shall mean the period from the Closing Date to the
Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the rate which the
Administrative Agent announces from time to time as its prime lending rate, as
in effect from time to time, or (ii) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (1/2%) per annum. The Administrative
Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above, or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate or the Federal Funds
Rate shall be effective from and including the date such change is publicly
announced as being effective and without notice to the Borrower.
"Borrower" shall have the meaning in the introductory paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans of the same
Class and Type, made, converted or continued on the same date and in case of
Eurodollar Loans, as to which a single Interest Period is in effect, or (ii) a
Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday, Sunday or
other day on which commercial banks in Atlanta, Georgia are authorized or
required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"Capital Expenditures" shall mean for any period, without duplication,
(a) the additions to property, plant and equipment and other capital
expenditures of the Borrower and its Subsidiaries that are (or would be) set
forth on a consolidated statement of cash flows of the Borrower for such period
prepared in accordance with GAAP and (b) Capital Lease Obligations incurred by
the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all obligations of
such Person to pay rent or other amounts under any lease (or other arrangement
conveying the right to use) real or personal property, or a combination thereof,
which obligations are required to be classified and accounted for as capital
leases on a balance sheet of such Person under GAAP, and the amount of such
obligations shall be the capitalized amount thereof determined in accordance
with GAAP.
"Change in Control" shall mean the occurrence of one or more of the
following events: (a) any sale, lease, exchange or other transfer (in a single
transaction or a series of related transactions) of all or substantially all of
the assets of the Borrower to any Person or "group" (within the meaning of the
Securities Exchange Act of 1934 and the rules of the Securities and Exchange
Commission thereunder in effect on the date hereof), (b) the acquisition of
ownership, directly or indirectly, beneficially or of record, by any Person or
"group" (within the meaning of the Securities Exchange Act of 1934 and the rules
of the Securities and Exchange Commission thereunder as in effect on the date
hereof) of 30% or more of the outstanding shares of the voting stock of the
Borrower; or (c) occupation of a majority of the seats (other than vacant seats)
on the board of directors of the Borrower by Persons who were neither (i)
nominated by the current board of directors nor (ii) appointed by directors so
nominated.
"Change in Law" shall mean (i) the adoption of any applicable law, rule
or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.18(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, are Revolving Loans,
Swingline Loans or Term Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment, a Swingline
Commitment, a LC Commitment or a Term Loan Commitment.
"Closing Date" shall mean the date on which the conditions precedent set
forth in Section 3.1 and Section 3.2 have been satisfied or waived in accordance
with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as amended and in
effect from time to time.
"Commitment" shall mean a Revolving Commitment, a Swingline Commitment,
a LC Commitment or a Term Loan Commitment or any combination thereof (as the
context shall permit or require).
"Consolidated Companies" shall mean, collectively, the Borrower and any
of its Subsidiaries, and "Consolidated Company" shall mean, individually, the
Borrower or any of its Subsidiaries.
"Consolidated EBITDA" shall mean, for the Borrower and its Subsidiaries
for any period, an amount equal to the sum of (a) Consolidated Net Income for
such period plus (b) to the extent deducted in determining Consolidated Net
Income for such period, (i) Consolidated Interest Expense, (ii) income tax
expense determined on a consolidated basis in accordance with GAAP, (iii)
depreciation and amortization determined on a consolidated basis in accordance
with GAAP and (iv) all other non-cash charges determined on a consolidated basis
in accordance with GAAP, in each case for such period.
"Consolidated EBITDAR" shall mean, for the Borrower and its Subsidiaries
for any period, an amount equal to the sum of (a) Consolidated EBITDA plus (b)
Consolidated Lease Expense, in each case for such period.
"Consolidated EBITR" shall mean, for the Borrower and its Subsidiaries
for any period, an amount equal to the sum of (a) Consolidated Net Income for
such period plus (b) to the extent deducted in determining Consolidated Net
Income for such period, (i) Consolidated Interest Expense, (ii) income tax
expense determined on a consolidated basis in accordance with GAAP, (iii) all
other non-cash charges, determined on a consolidated basis in accordance with
GAAP, and (iv) Consolidated Lease Expense, in each case for such period.
"Consolidated Fixed Charges" shall mean, for the Borrower and its
Subsidiaries for any period, the sum (without duplication) of (a) Consolidated
Interest Expense for such period and (b) Consolidated Lease Expense for such
period.
"Consolidated Interest Expense" shall mean, for the Borrower and its
Subsidiaries for any period determined on a consolidated basis in accordance
with GAAP, the sum of (i) total interest expense, including without limitation
the interest component of any payments in respect of Capital Leases Obligations
capitalized or expensed during such period (whether or not actually paid during
such period) plus (ii) the net amount payable (or minus the net amount
receivable) under Hedging Agreements during such period (whether or not actually
paid or received during such period).
"Consolidated Lease Expense" shall mean, for any period, the aggregate
amount of fixed and contingent rental and operating lease expense payable by the
Borrower and its Subsidiaries with respect to leases of real and personal
property (excluding Capital Lease Obligations) determined on a consolidated
basis in accordance with GAAP for such period.
"Consolidated Net Income" shall mean, for any period, the net income (or
loss) of the Borrower and its Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets, (iii) any equity interest of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary on the date that such Person's
assets are acquired by the Borrower or any Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, (i) the total
assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus the sum of
(i) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP and (ii) the amount of any write-up in the book value of
any assets resulting from a revaluation thereof or any write-up in excess of the
cost of such assets acquired reflected on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any provision of any
security issued by such Person or of any agreement, instrument or undertaking
under which such Person is obligated or by which it or any of the property in
which it has an interest is bound.
"Control" shall mean the power, directly or indirectly, either to (i)
vote 5% or more of securities having ordinary voting power for the election of
directors (or persons performing similar functions) of a Person or (ii) direct
or cause the direction of the management and policies of a Person, whether
through the ability to exercise voting power, by contract or otherwise. The
terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"Default" shall mean any condition or event that, with the giving of
notice or the lapse of time or both, would constitute an Event of Default.
"Default Interest" shall have the meaning set forth in Section 2.13(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the United
States of America.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a Lender;
(c) an Approved Fund; and (d) any other Person (other than a natural Person)
approved by the Administrative Agent, the Issuing Bank, and unless (x) such
Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed). If the consent of the Borrower to an
assignment or to an Eligible Assignee is required hereunder (including a consent
to an assignment which does not meet the minimum assignment thresholds specified
in paragraph (b)(i) of Section 10.4), the Borrower shall be deemed to have given
its consent five Business Days after the date notice thereof has actually been
delivered by the assigning Lender (through the Administrative Agent) to the
Borrower, unless such consent is expressly refused by the Borrower prior to such
fifth Business Day.
"Employee Benefit Plans" shall mean, collectively, Borrower's
Employee Stock Purchase Plan, the Xxxxxxxx Incorporated Long Term Incentive
Plan, the 1984 Xxxxxxxx Incorporated Long Term Incentive Plan, the 1987 Stock
Bonus and Non-Qualified Stock Option Plan, the 1989 Non-Qualified Stock
Incentive Plan, the Ruby Tuesday, Inc. 1996 Stock Incentive Plan, the Ruby
Tuesday, Inc. 1996 Non-Executive Stock Incentive Plan, the Ruby Tuesday, Inc.
Stock Incentive and Deferred Compensation Plan for Directors, the Ruby Tuesday,
Inc. Salary Deferral Plan, the Ruby Tuesday, Inc. Deferred Compensation Plan and
any salary deferral or deferred compensation plan of any Subsidiary or
franchisee of Borrower pursuant to which the equity securities of Borrower or
any Subsidiary are the subject of rights to acquire such equity securities, an
investment option under such plan or a matching contribution under such plan; in
each case as any such plan may be amended, modified or replaced by successor
plan thereto.
"Environmental Laws" shall mean all laws, rules, regulations, codes,
ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material.
"Environmental Liability" shall mean any liability, contingent or
otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974,
as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or not
incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as defined in
Section 4043 of ERISA or the regulations issued thereunder with respect to a
Plan (other than an event for which the 30-day notice period is waived); (b) the
existence with respect to any Plan of an "accumulated funding deficiency" (as
defined in Section 412 of the Code or Section 302 of ERISA), whether or not
waived; (c) the filing pursuant to Section 412(d) of the Code or Section 303(d)
of ERISA of an application for a waiver of the minimum funding standard with
respect to any Plan; (d) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability under Title IV of ERISA with respect to the
termination of any Plan; (e) the receipt by the Borrower or any ERISA Affiliate
from the PBGC or a plan administrator appointed by the PBGC of any notice
relating to an intention to terminate any Plan or Plans or to appoint a trustee
to administer any Plan; (f) the incurrence by the Borrower or any of its ERISA
Affiliates of any liability with respect to the withdrawal or partial withdrawal
from any Plan or Multiemployer Plan; or (g) the receipt by the Borrower or any
ERISA Affiliate of any notice, or the receipt by any Multiemployer Plan from the
Borrower or any ERISA Affiliate of any notice, concerning the imposition of
Withdrawal Liability or a determination that a Multiemployer Plan is, or is
expected to be, insolvent or in reorganization, within the meaning of Title IV
of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing, refers to
whether such Loan, or the Loans comprising such Borrowing, bears interest at a
rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of the
maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article VIII.
"Excluded Taxes" shall mean with respect to the Administrative Agent,
any Lender, the Issuing Bank or any other recipient of any payment to be made by
or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the case of any
Lender, in which its Applicable Lending Office is located, (b) any branch
profits taxes imposed by the United States of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new Applicable Lending Office, other than
taxes that have accrued prior to the designation of such lending office that are
otherwise not Excluded Taxes, and (iii) is attributable to such Foreign Lender's
failure to comply with Section 2.20(e).
"Existing Credit Agreement" shall mean that certain Revolving Credit
Agreement, dated as of October 11, 2000, by and among the Borrower, the Lenders
and the Administrative Agent, as amended, restated, supplemented or otherwise
modified from time to time.
"Existing Synthetic Lease" shall mean, collectively, (i) Master
Agreement, dated as of May 30, 1997, among the Borrower, as lessee, Atlantic
Financial Group, Ltd., as lessor, certain financial institutions parties thereto
as lenders, and SunTrust Bank, as agent; (ii) Lease Agreement, dated as of May
30, 1997, between the Borrower and Atlantic Financial Group, Ltd; (iii) Master
Agreement, dated as of June 3, 1999, among the Borrower, as lessee, Atlantic
Financial Group, Ltd., as lessor, certain financial institutions party thereto
as lenders and SunTrust Bank, as agent; (iv) Master Lease Agreement, dated as of
June 3, 1999, between Atlantic Financial Group, Ltd., as lessor, and the
Borrower, as lessee; (v) Master Agreement, dated as of October 11, 2000, among
the Borrower, as lessee, Atlantic Financial Group, Ltd., as lessor, certain
financial institutions parties thereto as lenders, and SunTrust Bank, as agent;
(vi) Lease Agreement, dated as of October 11, 2000, between the Borrower and
Atlan Financial Group, Ltd; (vii) Master Agreement, dated as of April 30, 2001,
among the Borrower, as lessee, Atlantic Financial Group, Ltd., as lessor,
certain financial institutions parties thereto as Lenders, and SunTrust Bank, as
agent; and (viii) Lease Agreement, dated as of April 30, 2001, between the
Borrower and Atlantic Financial Group, Ltd.
"Federal Funds Rate" shall mean, for any day, the rate per annum
(rounded upwards, if necessary, to the next 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with member banks
of the Federal Reserve System arranged by Federal funds brokers, as published by
the Federal Reserve Bank of New York on the next succeeding Business Day or if
such rate is not so published for any Business Day, the Federal Funds Rate for
such day shall be the average rounded upwards, if necessary, to the next 1/100th
of 1% of the quotations for such day on such transactions received by the
Administrative Agent from three Federal funds brokers of recognized standing
selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of July 26,
2002, executed by SunTrust Capital Markets, Inc. and SunTrust Bank and accepted
by Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower or the
Consolidated Companies, as applicable.
"Fixed Charge Coverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Consolidated EBITR to (b) Consolidated Fixed
Charges, in each case measured for the four Fiscal Quarter period ending on such
date.
"Foreign Lender" shall mean any Lender that is not a United States
person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is organized under
the laws of a jurisdiction other than one of the fifty states of the United
States or the District of Columbia.
"Franchise Partner Program" shall mean the optional financing and
business structuring program offered by the Borrower to a limited number of
qualified restaurant operators, such operators to be determined by the Borrower
in its sole discretion, which provided such restaurant operators a business
structure for organizing, owning and funding the establishment and operation of
restaurants doing business under operating concepts owned by the Borrower.
"GAAP" shall mean generally accepted accounting principles in the United
States applied on a consistent basis and subject to the terms of Section 1.3.
"Governmental Authority" shall mean the government of the United States
of America, any other nation or any political subdivision thereof, whether state
or local, and any agency, authority, instrumentality, regulatory body, court,
central bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or pertaining to
government.
"Guarantor" shall mean each Subsidiary Loan Party now or hereafter a
party to the Subsidiary Guaranty Agreement or any Subsidiary that becomes a
party to the Subsidiary Guaranty Agreement pursuant to Section 5.11, and their
respective successors and permitted assigns.
"Guaranty" of or by any Person (the "guarantor") shall mean any
obligation, contingent or otherwise, of the guarantor guaranteeing or having the
economic effect of Guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor ") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guaranty" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guaranty shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guaranty is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive substances or
wastes and all hazardous or toxic substances, wastes or other pollutants,
including petroleum or petroleum distillates, asbestos or asbestos containing
materials, polychlorinated biphenyls, radon gas, infectious or medical wastes
and all other substances or wastes of any nature regulated pursuant to any
Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap agreements,
currency future or option contracts, commodity agreements and other similar
agreements or arrangements designed to protect against fluctuations in interest
rates, currency values or commodity values, in each case to which any Borrower
or any Subsidiary is a party.
"Hostile Acquisition" shall mean any Investment resulting in control of
a Person involving a tender offer or proxy contest that has not been recommended
or approved by the board of directors of the Person that is the subject of the
Investment prior to the first public announcement or disclosure relating to such
Investment.
"Indebtedness" of any Person shall mean, without duplication (i)
all obligations of such Person for borrowed money, (ii) all obligations of such
Person evidenced by bonds, debentures, notes or other similar instruments, (iii)
all obligations of such Person in respect of the deferred purchase price of
property or services (other than trade payables incurred in the ordinary course
of business; provided, that for purposes of Section 8.1(f), trade payables
overdue by more than 120 days shall be included in this definition except to the
extent that any of such trade payables are being disputed in good faith and by
appropriate measures), (iv) all obligations of such Person under any conditional
sale or other title retention agreement(s) relating to property acquired by such
Person, (v) all Capital Lease Obligations of such Person, (vi) all obligations,
contingent or otherwise, of such Person in respect of letters of credit,
acceptances or similar extensions of credit, (vii) all Guarantees of such Person
of the type of Indebtedness described in clauses (i) through (vi) above, (viii)
all Indebtedness of a third party secured by any Lien on property owned by such
Person, whether or not such Indebtedness has been assumed by such Person, (ix)
all obligations of such Person, contingent or otherwise, to purchase, redeem,
retire or otherwise acquire for value any common stock of such Person, (x)
Off-Balance Sheet Liabilities and (xi) all obligations under Hedging Agreements.
The Indebtedness of any Person shall include the Indebtedness of any partnership
or joint venture in which such Person is a general partner or a joint venturer,
except to the extent that the terms of such Indebtedness provide that such
Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity and Contribution Agreement" shall mean the Indemnity,
Subrogation and Contribution Agreement as amended, restated, supplemented or
otherwise modified from time to time substantially in the form of Exhibit F,
among the Borrower, the Subsidiary Loan Parties and the Administrative Agent.
"Information Memorandum" shall mean the Confidential Information
Memorandum dated August 2000 relating to the Borrower and the transactions
contemplated by this Agreement and the other Loan Documents.
"Interest Period" shall mean (i) with respect to any Eurodollar
Borrowing, a period of one, two, three or six months, and (ii) with respect to a
Swingline Loan, a period of such duration not to exceed 10 days, as the Borrower
may request and the Swingline Lender may agree in accordance with Section 2.6;
provided, that:
(i) the initial Interest Period for such Borrowing shall commence on the date of
such Borrowing (including the date of any conversion from a Borrowing of another
Type), and each Interest Period occurring thereafter in respect of such
Borrowing shall commence on the day on which the next preceding Interest Period
expires;
(ii) if any Interest Period would otherwise end on a day other than a Business
Day, such Interest Period shall be extended to the next succeeding Business Day,
unless such Business Day falls in another calendar month, in which case such
Interest Period would end on the next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a calendar
month or on a day for which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall end on the last Business
Day of the calendar month in which such Interest Period ends;
(iv) each principal installment of the Term Loans shall have an Interest Period
ending on each installment payment date and the remaining principal balance (if
any) of the Term Loans shall have an Interest Period determined as set forth in
clauses (i) through (iii) above; and
(v) no Interest Period may extend beyond the Revolving Commitment Termination
Date.
"Issuing Bank" shall mean SunTrust Bank or any other Lender, each in its
capacity as an issuer of Letters of Credit pursuant to Section 2.23.
"LC Commitment" shall mean that portion of the Aggregate Revolving
Commitment Amount that may be used by the Borrower for the issuance of Letters
of Credit in an aggregate face amount not to exceed $15,000,000.
"LC Disbursement" shall mean a payment made by the Issuing Bank pursuant
to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all applications,
agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the aggregate
undrawn amount of all outstanding Letters of Credit at such time, plus (ii) the
aggregate amount of all LC Disbursements that have not been reimbursed by or on
behalf of the Borrower at such time. The LC Exposure of any Lender shall be its
Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the opening
paragraph of this Agreement and shall include, where appropriate, the Swingline
Lender.
"Letter of Credit" shall mean any letter of credit issued pursuant to
Section 2.23 by the Issuing Bank for the account of the Borrower pursuant to the
LC Commitment.
"LIBOR" shall mean, for any applicable Interest Period with respect to
any Eurodollar Loan, the British Bankers' Association Interest Settlement Rate
per annum for deposits in Dollars for a period equal to such Interest Period
appearing on the display designated as Page 3750 on the Dow Xxxxx Markets
Service (or such other page on that service or such other service designated by
the British Banker's Association for the display of such Association's Interest
Settlement Rates for Dollar deposits) as of 11:00 a.m. (London, England time) on
the day that is two Business Days prior to the first day of the Interest Period
or if such Page 3750 is unavailable for any reason at such time, the rate which
appears on the Reuters Screen ISDA Page as of such date and such time; provided,
that if the Administrative Agent determines that the relevant foregoing sources
are unavailable for the relevant Interest Period, LIBOR shall mean the rate of
interest determined by the Administrative Agent to be the average (rounded
upward, if necessary, to the nearest 1/100th of 1%) of the rates per annum at
which deposits in Dollars are offered to the Administrative Agent two (2)
Business Days preceding the first day of such Interest Period by leading banks
in the London interbank market as of 10:00 a.m. for delivery on the first day of
such Interest Period, for the number of days comprised therein and in an amount
comparable to the amount of the Eurodollar Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest, lien
(statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"L&N" shall mean "L&N Seafood" or L&N Seafood Grill".
"Loan Documents" shall mean, collectively, this Agreement, the Notes (if
any), the LC Documents, the Fee Letter, all Notices of Borrowing, the Subsidiary
Guaranty Agreement, the Indemnity and Contribution Agreement, all Notices of
Conversion/Continuation and any and all other instruments, agreements, documents
and writings executed in connection with any of the foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan Parties.
"Loans" shall mean all Revolving Loans, Swingline Loans and Term Loans
in the aggregate or any of them, as the context shall require.
"Margin Regulations" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"Material Adverse Effect" shall mean, 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 singularly 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 on, (i) the business,
results of operations, financial condition, assets, liabilities or prospects of
the Borrower and its Subsidiaries taken as a whole, (ii) the ability of the Loan
Parties to perform any of their respective obligations under the Loan Documents,
(iii) the rights and remedies of the Administrative Agent, the Issuing Bank,
Swingline Lender, and the Lenders under any of the Loan Documents or (iv) the
legality, validity or enforceability of any of the Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other than the Loans
and Letters of Credit) or obligations in respect of one or more Hedging
Agreements, of any one or more of the Borrower and the Subsidiaries in an
aggregate principal amount exceeding $2,500,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect to any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" shall mean (i) each Loan Party other than the
Borrower, and (ii) each other Subsidiary of the Borrower, now existing or
hereafter established or acquired, that at any time prior to the Maturity Date
or the Revolving Commitment Termination Date, has or acquires total assets in
excess of $5,000,000, or that accounted for or produced more than 5% of the
Consolidated Net Income (Loss) of the Borrower on a consolidated basis during
any of the three most recently completed fiscal years of the Borrower, or that
is otherwise material to the operations or business of the Borrower or another
Material Subsidiary.
"Maturity Date" shall mean, with respect to the Term Loans, the
earlier of (i) October 2, 2003 or (ii) the date on which the principal amount of
all outstanding Term Loans have been declared or automatically have become due
and payable (whether by acceleration or otherwise).
"Moody's" shall mean Xxxxx'x Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section
4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Revolving Credit Notes, the
Swingline Note and the Term Notes.
"Notices of Borrowing" shall mean, collectively, the Notices of
Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice given by the
Borrower to the Administrative Agent in respect of the conversion or
continuation of an outstanding Borrowing as provided in Section 2.8(b) hereof.
"Notice of Revolving Borrowing" shall have the meaning as set forth in
Section 2.3(a).
"Notice of Swingline Borrowing" shall have the meaning as set forth in
Section 2.6(a).
"Obligations" shall mean all amounts owing by the Borrower to the
Administrative Agent, the Issuing Bank or any Lender (including the Swingline
Lender) pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest (including any
interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all obligations arising under Hedging Agreements relating to the
foregoing to the extent permitted hereunder, and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i) any
repurchase obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person in accordance with GAAP.
"OSHA" shall mean the Occupational Safety and Health Act of 1970, as
amended from time to time, and any successor statute.
"Other Taxes" shall mean any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section 10.4(c).
"Payment Office" shall mean the office of the Administrative Agent
located at 000 Xxxxxxxxx Xx., X.X., 00xx Xxxxx, Xxxxxxx, Xxxxxxx 00000, or such
other location as to which the Administrative Agent shall have given written
notice to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation referred to
and defined in ERISA, and any successor entity performing similar functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes not yet due or which are being contested in
good faith by appropriate proceedings and with respect to which adequate
reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the ordinary
course of business for amounts not yet due or which are being contested in good
faith by appropriate proceedings and with respect to which adequate reserves are
being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in compliance
with workers' compensation, unemployment insurance and other social security
laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature, in each case in the ordinary course of business;
(v) judgment and attachment liens not giving rise to an Event of Default or
Liens created by or existing from any litigation or legal proceeding that are
currently being contested in good faith by appropriate proceedings and with
respect to which adequate reserves are being maintained in accordance with GAAP;
and
(vi) easements, zoning restrictions, rights-of-way and similar encumbrances on
real property imposed by law or arising in the ordinary course of business that
do not secure any monetary obligations and do not materially detract from the
value of the affected property or materially interfere with the ordinary conduct
of business of the Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and interest on which
are unconditionally Guaranteed by, the United States (or by any agency thereof
to the extent such obligations are backed by the full faith and credit of the
United States), in each case maturing within one year from the date of
acquisition thereof;
(ii) commercial paper having the highest rating, at the time of acquisition
thereof, of S&P or Moody's and in either case maturing within six months from
the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits maturing
within 180 days of the date of acquisition thereof issued or Guaranteed by or
placed with, and money market deposit accounts issued or offered by, any
domestic office of any commercial bank organized under the laws of the United
States or any state thereof which has a combined capital and surplus and
undivided profits of not less than $500,000,000;
(iv) fully collateralized repurchase agreements with a term of not more than 30
days for securities described in clause (i) above and entered into with a
financial institution satisfying the criteria described in clause (iii) above;
and
(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i) through (iv) above.
"Permitted Liens" means all Liens permitted under Section 7.2.
"Person" shall mean any individual, partnership, firm, corporation,
association, joint venture, limited liability company, trust or other entity, or
any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" shall mean (i) with respect to any Commitment of any
Lender at any time, a percentage, the numerator of which shall be such Lender's
Commitment (or if such Commitments have been terminated or expired or the Loans
have been declared to be due and payable, such Lender's Loan funded under such
Commitment), and the denominator of which shall be the sum of such Commitments
of all Lenders (or if such Commitments have been terminated or expired or the
Loans have been declared to be due and payable, all Loans of all Lenders funded
under such Commitments) and (ii) with respect to all Commitments of any Lender
at any time, the numerator of which shall be the sum of such Lender's Revolving
Commitment (or if the Revolving Commitments have been terminated or expired or
the Loans have been declared to be due and payable, such Lender's Revolving
Loan) and Term Loan and the denominator of which shall be the sum of all
Lenders' Revolving Commitments (or if the Revolving Commitments have been
terminated or expired or the Loans have been declared to be due and payable, all
Revolving Loans) and Term Loans.
"Regulation D" shall mean Regulation D of the Board of Governors of the
Federal Reserve System, as the same may be in effect from time to time, and any
successor regulations.
"Related Parties" shall mean, with respect to any specified Person, such
Person's Affiliates and the respective directors, officers, employees, agents
and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking, dumping,
injection, pouring, deposit, disposal, discharge, dispersal, leaching or
migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding at least 51%
of the aggregate outstanding Revolving Commitments and Term
Loans at such time or, if the Commitments are no longer in
effect, Lenders holding at least 51% of the aggregate
outstanding Loans. "Required Term Loan Lenders" shall mean, at
any time, Lenders holding at least 51% of the aggregate
outstanding Term Loans at such time.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer" shall mean any of the president, the chief
executive officer, the chief operating officer, the chief financial officer, the
treasurer or a vice president of the Borrower or such other representative of
the Borrower as may be designated in writing by any one of the foregoing with
the consent of the Administrative Agent; and, with respect to the financial
covenants only, the chief financial officer or the treasurer of the Borrower.
"Restricted Payment" shall have the meaning set forth in Section 7.5.
"Revolving Commitment" shall mean, with respect to each Lender, the
obligation of such Lender to make Revolving Loans to the Borrower and to
participate in Letters of Credit (subject to the terms herein) and Swingline
Loans in an aggregate principal amount not exceeding the amount set forth with
respect to such Lender on the signature pages to this Agreement, or in the case
of a Person becoming a Lender after the Closing Date, the amount of the assigned
"Revolving Commitment" as provided in the Assignment and Acceptance Agreement
executed by such Person as an assignee, as the same may be changed pursuant to
terms hereof.
"Revolving Commitment Termination Date" shall mean the earlier of (i)
October 10, 2005, or (ii) the date on which all amounts outstanding under this
Agreement have been declared or have automatically become due and payable
(whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any Lender at
any time, the sum of the outstanding principal amount of such Lender's Revolving
Loans, such Lender's LC Exposure and such Lender's Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the Borrower
payable to the order of a requesting Lender in the principal amount of such
Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Lenders" shall mean, at any time, Lenders holding
outstanding Revolving Loans and unused Revolving Commitments at such time or if
the Lenders have no Revolving Loans outstanding, then Lenders holding the
Revolving Commitments.
"Revolving Loan" shall mean a loan made by a Lender (other than the
Swingline Lender) to the Borrower under its Revolving Commitment, which may
either be a Base Rate Loan or a Eurodollar Loan.
"S&P" shall mean Standard & Poor's.
"Subsidiary" shall mean, with respect to any Person (the "parent"), any
corporation, partnership, joint venture, limited liability company, association
or other entity the accounts of which would be consolidated with those of the
parent in the parent's consolidated financial statements if such financial
statements were prepared in accordance with GAAP as of such date, as well as any
other corporation, partnership, joint venture, limited liability company,
association or other entity of which securities or other ownership interests
representing more than 50% of the equity or more than 50% of the ordinary voting
power, or in the case of a partnership, more than 50% of the general partnership
interests are, as of such date, are directly or indirectly owned, controlled
(intentionally lowercase) or held by the parent. Unless otherwise indicated, all
references to "Subsidiary" hereunder shall mean a Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary Guaranty
Agreement as amended, restated, supplemented or otherwise modified from time to
time, substantially in the form of Exhibit E, made by the Subsidiary Loan
Parties in favor of the Administrative Agent for the benefit of the Lenders.
"Subordinated Debt" shall mean all Indebtedness of Borrower subordinated
to all obligations of Borrower or any other Loan Party arising under this
Agreement, the Notes, and the Guaranty Agreement, created, incurred or assumed
on terms and conditions satisfactory in all respects to the Administrative Agent
and the Required Lenders, including without limitation, with respect to interest
rates, payment terms, maturities, amortization schedules, covenants, defaults,
remedies, and subordination provisions, as evidenced by the written approval of
the Administrative Agent and Required Lenders.
"Subsidiary Loan Party" shall mean any Material Subsidiary that is not a
Foreign Subsidiary.
"Swingline Commitment" shall mean the commitment of the Swingline Lender
to make Swingline Loans in an aggregate principal amount at any time outstanding
not to exceed $10,000,000.
"Swingline Exposure" shall mean, with respect to each Lender, the
principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.6, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank and its successors.
"Swingline Loan" shall mean a loan made to the Borrower by the Swingline
Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the Borrower payable
to the order of the Swingline Lender in the principal amount of the Swingline
Commitment, substantially the form of Exhibit C.
"Swingline Rate" shall have the meaning assigned to such term in Section
2.6.
"Synthetic Lease" means a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any Person,
the sum of (i) all remaining rental obligations of such Person as lessee under
Synthetic Leases which are attributable to principal and, without duplication,
(ii) all rental and purchase price payment obligations of such Person under such
Synthetic Leases assuming such Person exercises the option to purchase the lease
property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes, levies, imposts,
duties, deductions, charges or withholdings imposed by any Governmental
Authority.
"Term Loan Lenders" shall mean, at any time, Lenders holding
outstanding Term Loans at such time.
"Term Loan" shall have the meaning set forth in Section 2.4.
"Term Loan Commitment" shall mean, with respect to each Term
Loan Lender, the obligation of such Term Loan Lender to make a Term Loan
hereunder on the Closing Date, in a principal amount not exceeding the amount
set forth with respect to such Lender on the signature pages to this Agreement.
The aggregate principal amount of all Lenders' Term Loan Commitments is
$70,423,886.37.
"Term Note" shall mean a promissory note of the Borrower payable
to the order of a requesting Lender in the principal amount of such Lender's
Term Loan on the Closing Date, in substantially the form of Exhibit B.
"Tia's" shall mean Tia's Mexican Restaurants, previously an operating
concept of Tia's, LLC, a Delaware limited liability company.
"Type", when used in reference to a Loan or Borrowing, refers to whether
the rate of interest on such Loan, or on the Loans comprising such Borrowing, is
determined by reference to the Adjusted LIBO Rate or the Base Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer Plan as a
result of a complete or partial withdrawal from such Multiemployer Plan, as such
terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classifications of Loans and Borrowings. For purposes of this
Agreement, Loans may be classified and referred to by Class (e.g. a
"Revolving Loan", "Term Loan" or "Swingline Loan") or by Type (e.g. a
"Eurodollar Loan" or "Base Rate Loan") or by Class and Type (e.g. "Revolving
Eurodollar Loan"). Borrowings also may be classified and referred to by Class
(e.g. "Revolving Borrowing") or by Type (e.g. "Eurodollar Borrowing") or by
Class and Type (e.g. " Revolving Eurodollar Borrowing").
Section 1.3 Accounting Terms and Determination. Unless otherwise defined or
specified herein, all accounting terms 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 as
in effect from time to time, applied on a basis consistent (except for such
changes approved by the Borrower's independent public accountants) with the most
recent audited consolidated financial statement of the Borrower delivered
pursuant to Section 5.1(a); provided, that if the Borrower notifies the
Administrative Agent that the Borrower wishes to amend any covenant in Article
VI to eliminate the effect of any change in GAAP on the operation of such
covenant (or if the Administrative Agent notifies the Borrower that the Required
Lenders wish to amend Article VI for such purpose), then the Borrower's
compliance with such covenant shall be determined on the basis of GAAP in effect
immediately before the relevant change in GAAP became effective, until either
such notice is withdrawn or such covenant is amended in a manner satisfactory to
the Borrower and the Required Lenders; provided, further, that if the Borrower
notifies the Administrative Agent that the Borrower wishes to change its fiscal
year end in accordance with Section 7.12 and such change effects any covenant in
Article VI, then the Borrower's compliance with such covenant shall be
determined on the basis of the fiscal year end in effect immediately before such
requested change in fiscal year end became effective, until such covenant is
amended in a manner satisfactory to the Borrower and the Required Lenders.
Section 1.4 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". In the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the word "to" means "to but
excluding". Unless the context requires otherwise (i) 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 it was
originally executed or as it may from time to time be amended, supplemented or
otherwise modified (subject to any restrictions on such amendments, supplements
or modifications set forth herein), (ii) any reference herein to any Person
shall be construed to include such Person's successors and permitted assigns,
(iii) the words "hereof", "herein" and "hereunder" and words of similar import
shall be construed to refer to this Agreement as a whole and not to any
particular provision hereof, (iv) all references to Articles, Sections, Exhibits
and Schedules shall be construed to refer to Articles, Sections, Exhibits and
Schedules to this Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the Administrative
Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS AND TERM LOANS
Section 2.1 General Description of Facilities. Subject to and upon the terms and
conditions herein set forth, (i) the Revolving Lenders hereby establish in favor
of the Borrower a revolving credit facility pursuant to which the Revolving
Lenders severally agree (to the extent of such Lender's Revolving Commitment) to
make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.23,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with
Section 2.5, (iv) each Revolving Lender agrees to purchase a participation
interest in the Letters of Credit and the Swingline Loans pursuant to the terms
and conditions hereof; provided, that in no event shall the aggregate principal
amount of all outstanding Revolving Loans, Swingline Loans and outstanding LC
Exposure exceed at any time the Aggregate Revolving Commitment Amount from time
to time in effect and (v) each Term Loan Lender severally agrees to make a Term
Loan to the Borrower in a principal amount not exceeding such Lender's Term Loan
Commitment on the Closing Date. Section 2.2 Revolving Loans. Subject to the
terms and conditions set forth herein, each Revolving Lender severally agrees to
make Revolving Loans to the Borrower, from time to time during the Availability
Period, in an aggregate principal amount outstanding at any time that will not
result in (i) such Revolving Lender's Revolving Credit Exposure exceeding such
Revolving Lender's Revolving Commitment or (ii) the aggregate Revolving Credit
Exposures of all Revolving Lenders exceeding the Aggregate Revolving Commitment
Amount. During the Availability Period, the Borrower shall be entitled to
borrow, prepay and reborrow Revolving Loans in accordance with the terms and
conditions of this Agreement; provided, that the Borrower may not borrow or
reborrow should there exist a Default or Event of Default. Section 2.3 Procedure
for Revolving Borrowings. The Borrower shall give the Administrative Agent
written notice (or telephonic notice promptly confirmed in writing) of each
Revolving Borrowing substantially in the form of Exhibit 2.3 attached hereto (a
"Notice of Revolving Borrowing") (x) prior to 11:00 a.m. one (1) Business Day
prior to the requested date of each Base Rate Borrowing and (y) prior to 11:00
a.m. three (3) Business Days prior to the requested date of each Eurodollar
Borrowing. Each Notice of Revolving Borrowing shall be irrevocable and shall
specify: (i) the aggregate principal amount of such Borrowing, (ii) the date of
such Borrowing (which shall be a Business Day), (iii) the Type of such Revolving
Loan comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing,
the duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of each Eurodollar Borrowing shall be
not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate
principal amount of each Base Rate Borrowing shall not be less than $1,000,000
or a larger multiple of $100,000; provided, that Base Rate Loans made pursuant
to Section 2.6 or Section 2.23 may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each
Revolving Lender of the details thereof and the amount of such Lender's
Revolving Loan to be made as part of the requested Revolving Borrowing. Section
2.4 Term Loan Commitments. Subject to the terms and conditions set forth herein,
each Term Loan Lender severally agrees to make a single loan (each, a "Term
Loan") to the Borrower on the Closing Date in a principal amount not to exceed
the Term Loan Commitment of such Lender; provided, that if for any reason the
full amount of such Lender's Term Loan Commitment is not fully drawn on the
Closing Date, the undrawn portion thereof shall automatically be cancelled. The
Term Loans may be, from time to time, Base Rate Loans or Eurodollar Loans or a
combination thereof; provided that on the Closing Date all Term Loans shall be
Base Rate Loans. The execution and delivery of this Agreement by the Borrower
and the satisfaction of all conditions precedent pursuant to Section 3.1 shall
be deemed to constitute the Borrower's request to borrow the Term Loans in full
on the Closing Date. Section 2.5 Swingline Commitment. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower during the Availability Period in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving
Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. The Borrower shall be entitled
to borrow, repay and reborrow Swingline Loans in accordance with the terms and
conditions of this Agreement. Section 2.6 Procedure for Swingline Borrowing;
Etc. The Borrower shall give the Administrative Agent written notice (or
telephonic notice promptly confirmed in writing) of each Swingline Borrowing
substantially in the form of Exhibit 2.6 attached hereto ("Notice of Swingline
Borrowing") prior to 1:00 p.m. on the requested date of each Swingline
Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall
specify: (i) the principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Base Rate
or any other interest rate as agreed between the Borrower and the Swingline
Lender (the "Swingline Rate") and shall have an Interest Period (subject to the
definition thereof) as agreed between the Borrower and the Lender. The aggregate
principal amount of each Swingline Loan shall be not less than $100,000 or a
larger multiple of $50,000, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. The Swingline Lender will make the proceeds
of each Swingline Loan available to the Borrower in Dollars in immediately
available funds at the account specified by the Borrower in the applicable
Notice of Swingline Borrowing not later than 3:00 p.m. on the requested date of
such Swingline Loan. The Administrative Agent will notify the Revolving Lenders
on a quarterly basis if any Swingline Loans occurred during such quarter.
(b) The Swingline Lender, at any time and from time to time in its sole
discretion, may, on behalf of the Borrower (which hereby irrevocably authorizes
and directs the Swingline Lender to act on its behalf), give a Notice of
Revolving Borrowing to the Administrative Agent requesting the Revolving Lenders
(including the Swingline Lender) to make a Base Rate Loan in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Revolving Lender will
make the proceeds of its Base Rate Loan included in such Borrowing available to
the Administrative Agent for the account of the Swingline Lender in accordance
with Section 2.7, which will be used solely for the repayment of such Swingline
Loan.
(c) If for any reason a Base Rate Borrowing may not be (as determined in the
sole discretion of the Administrative Agent), or is not, made in accordance with
the foregoing provisions, then each Revolving Lender (other than the Swingline
Lender) shall purchase an undivided participating interest in such Swingline
Loan in an amount equal to its Pro Rata Share thereof on the date that such Base
Rate Borrowing should have occurred. On the date of such required purchase, each
Revolving Lender shall promptly transfer, in immediately available funds, the
amount of its participating interest to the Administrative Agent for the account
of the Swingline Lender. If such Swingline Loan bears interest at a rate other
than the Base Rate, such Swingline Loan shall automatically become a Base Rate
Loan on the effective date of any such participation and interest shall become
payable on demand.
(d) Each Revolving Lender's obligation to make a Base Rate Loan pursuant to
Section 2.6(b) or to purchase the participating interests pursuant to Section
2.6(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. If such amount is not in fact made
available to the Swingline Lender by any Revolving Lender, the Swingline Lender
shall be entitled to recover such amount on demand from such Lender, together
with accrued interest thereon for each day from the date of demand thereof at
the Federal Funds Rate. Until such time as such Lender makes its required
payment, the Swingline Lender shall be deemed to continue to have outstanding
Swingline Loans in the amount of the unpaid participation for all purposes of
the Loan Documents. In addition, such Lender shall be deemed to have assigned
any and all payments made of principal and interest on its Loans and any other
amounts due to it hereunder, to the Swingline Lender to fund the amount of such
Lender's participation interest in such Swingline Loans that such Lender failed
to fund pursuant to this Section, until such amount has been purchased in full.
Section 2.7 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it hereunder on
the proposed date thereof by wire transfer in immediately available funds by
11:00 a.m. to the Administrative Agent at the Payment Office; provided that the
Swingline Loans will be made as set forth in Section 2.6. The Administrative
Agent will make such Loans available to the Borrower by promptly crediting the
amounts that it receives, in like funds by the close of business on such
proposed date, to an account maintained by the Borrower with the Administrative
Agent or at the Borrower's option, by effecting a wire transfer of such amounts
to an account designated by the Borrower to the Administrative Agent.
(b) Unless the Administrative Agent shall have been notified by any Lender prior
to 5 p.m. one (1) Business Day prior to the date of a Borrowing in which such
Lender is participating that such Lender will not make available to the
Administrative Agent such Lender's share of such Borrowing, the Administrative
Agent may assume that such Lender has made such amount available to the
Administrative Agent on such date, and the Administrative Agent, in reliance on
such assumption, may make available to the Borrower on such date a corresponding
amount. If such corresponding amount is not in fact made available to the
Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate for up
to two (2) days and thereafter at the rate specified for such Borrowing. If such
Lender does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its Pro Rata Share of any Borrowing hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any default by such Lender hereunder. (c) All Borrowings shall be made by the
Lenders on the basis of their respective Pro Rata Shares. No Lender shall be
responsible for any default by any other Lender in its obligations hereunder,
and each Lender shall be obligated to make its Loans provided to be made by it
hereunder, regardless of the failure of any other Lender to make its Loans
hereunder.
Section 2.8 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in the
applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall NOT apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower shall give the
Administrative Agent prior written notice (or telephonic notice promptly
confirmed in writing) of each Borrowing substantially in the form of Exhibit 2.8
hereto (a "Notice of Conversion/Continuation") that is to be converted or
continued, as the case may be, (x) prior to 11:00 a.m. one (1) Business Day
prior to the requested date of a conversion into a Base Rate Borrowing and (y)
prior to 11:00 a.m. three (3) Business Days prior to a continuation of or
conversion into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing
to which such Notice of Continuation/Conversion applies and if different options
are being elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be
specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to
be a Eurodollar Borrowing, the Interest Period applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of "Interest Period". If any such Notice of Continuation/Conversion requests a
Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall
be deemed to have selected an Interest Period of one month. The principal amount
of any resulting Borrowing shall satisfy the minimum borrowing amount for
Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3. (c) If,
on the expiration of any Interest Period in respect of any Eurodollar Borrowing,
the Borrower shall have failed to deliver a Notice of Conversion/ Continuation,
then, unless such Borrowing is repaid as provided herein, the Borrower shall be
deemed to have elected to convert such Borrowing to a Base Rate Borrowing. No
Borrowing may be converted into, or continued as, a Eurodollar Borrowing if a
Default or an Event of Default exists, unless the Administrative Agent and each
of the Lenders shall have otherwise consented in writing. No conversion of any
Eurodollar Loans shall be permitted except on the last day of the Interest
Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the Administrative
Agent shall promptly notify each Lender of the details thereof and of such
Lender's portion of each resulting Borrowing. Section 2.9 Optional Reduction and
Termination of Commitments. (a) Unless previously terminated, all Revolving
Commitments shall terminate on the Revolving Commitment Termination Date. The
Term Loan Commitments shall terminate on the Closing Date upon the making of the
Term Loans pursuant to Section 2.4.
(b) Upon at least three (3) Business Days' prior written notice (or telephonic
notice promptly confirmed in writing) to the Administrative Agent (which notice
shall be irrevocable), the Borrower may reduce the Aggregate Revolving
Commitments in part or terminate the Aggregate Revolving Commitments in whole;
provided, however, that (i) any partial reduction shall apply to reduce
proportionately and permanently the Revolving Commitment of each Revolving
Lender, (ii) any partial reduction pursuant to this Section 2.9 shall be in an
amount of at least $5,000,000 and any larger multiple of $1,000,000, and (iii)
no such reduction shall be permitted which would reduce the Aggregate Revolving
Commitments to an amount less than the outstanding Revolving Credit Exposures of
all Lenders. Any such reduction in the Aggregate Revolving Commitments shall
result in a proportionate reduction (rounded to the next lowest integral
multiple of $100,000) in the Swingline Commitment and the LC Commitment. Section
2.10 Repayment of Loans. (a) The outstanding principal amount of all Revolving
Loans shall be due and payable (together with accrued and unpaid interest
thereon) on the Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be due and
payable (together with accrued and unpaid interest thereon) on the earlier of
(i) the last day of the Interest Period applicable to such Borrowing and (ii)
the Revolving Commitment Termination Date.
(c) The aggregate unpaid principal balance of the Term Loans shall be due
and payable (together with accrued and unpaid interest thereon) on the Maturity
Date.
Section 2.11 Evidence of Indebtedness. Each Lender shall maintain in accordance
with its usual practice appropriate records evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender from time
to time, including the amounts of principal and interest payable thereon and
paid to such Lender from time to time under this Agreement. The Administrative
Agent shall maintain appropriate records in which shall be recorded (i) the
Revolving Commitment and the Term Loan Commitment of each Lender, (ii) the
amount of each Loan made hereunder by each Lender, the Class and Type thereof
and the Interest Period applicable thereto, (iii) the date of each continuation
thereof pursuant to Section 2.8, (iv) the date of each conversion of all or a
portion thereof to another Type pursuant to Section 2.8, (v) the date and amount
of any principal or interest due and payable or to become due and payable from
the Borrower to each Lender hereunder in respect of such Loans and (vi) both the
date and amount of any sum received by the Administrative Agent hereunder from
the Borrower in respect of the Loans and each Lender's Pro Rata Share thereof.
The entries made in such records shall be prima facie evidence of the existence
and amounts of the obligations of the Borrower therein recorded; provided,
however, that the failure or delay of any Lender or the Administrative Agent in
maintaining or making entries into any such record or any error therein shall
not in any manner affect the obligation of the Borrower to repay the Loans (both
principal and unpaid accrued interest) of such Lender in accordance with the
terms of this Agreement. (b) At the request of any Lender (including the
Swingline Lender) at any time, the Borrower agrees that it will execute and
deliver to such Lender a Revolving Credit Note and a Term Note, if applicable,
and, in the case of the Swingline Lender only, a Swingline Note, payable to the
order of such Lender.
Section 2.12 Prepayments.
(a) The Borrower shall have the right at any time and from time to time to
prepay any Borrowing, in whole or in part, without premium or penalty, by giving
irrevocable written notice (or telephonic notice promptly confirmed in writing)
to the Administrative Agent no later than (i) in the case of prepayment of any
Eurodollar Borrowing, 12:00 noon not less than three (3) Business Days prior to
any such prepayment, (ii) in the case of any prepayment of any Base Rate
Borrowing, not less than one Business Day prior to the date of such prepayment,
and (iii) in the case of Swingline Borrowings, prior to 12:00 noon on the date
of such prepayment. Each such notice shall be irrevocable and shall specify the
proposed date of such prepayment and the principal amount of each Borrowing or
portion thereof to be prepaid. Upon receipt of any such notice, the
Administrative Agent shall promptly notify each Lender of the contents thereof
and of such Lender's Pro Rata Share of any such prepayment. If such notice is
given, the aggregate amount specified in such notice shall be due and payable on
the date designated in such notice, together with accrued interest to such date
on the amount so prepaid; provided, that if a Eurodollar Borrowing is prepaid on
a date other than the last day of an Interest Period applicable thereto, the
Borrower shall also pay all amounts required pursuant to Section 2.19. Each
partial prepayment of any Revolving Loan (other than a Swingline Loan) shall be
in a minimum amount of $5,000,000 and in integral multiples of $1,000,000, each
partial prepayment of any Swingline Loan shall be in a minimum amount of
$100,000 and integral multiples of $50,000, and each partial prepayment of any
Term Loan shall be in a minimum amount of $1,000,000 and in integral multiples
of $100,000. Each prepayment of a Borrowing shall be applied ratably to the
Loans comprising such Borrowing. (b) At any time prior to the Maturity Date,
immediately upon receipt by the Borrower or any of its Subsidiaries of cash
proceeds of any sale or disposition by the Borrower or such Subsidiary of any of
its assets (excluding (i) sales of inventory in the ordinary course of business,
(ii) sales of obsolete equipment, (iii) the sale, lease or transfer of assets of
any Subsidiary to the Borrower or any other Loan Party, and (iv) the sale of
assets where an amount equal to the net proceeds of such sale is invested into
the businesses of the Borrower and its Subsidiaries within 180 days after such
assets are sold) during such time, the Borrower shall prepay the Term Loans in
an amount equal to all such cash proceeds, net of commissions and other
reasonable and customary transaction costs, fees and expenses (including,
without limitation, taxes) properly attributable to such transaction and payable
by such Borrower in connection therewith (in each case, paid to non-Affiliates).
Any such prepayment shall be applied in accordance with Section 2.12(d).
(c) If, at any time prior to the Maturity Date, the Borrower or any of its
Subsidiaries issues any debt or equity securities (other than (i) Indebtedness
permitted under Section 7.1, (ii) equity securities issued by a Subsidiary of
the Borrower to the Borrower or another Subsidiary or (iii) equity securities
issued pursuant to the Employee Benefit Plans), then no later than the Business
Day following the date of receipt of the proceeds thereof, Borrower shall prepay
the Term Loans in an amount equal to all such proceeds, net of underwriting
discounts and commissions and other reasonable costs, fees and expenses paid to
non-Affiliates in connection therewith. Any such prepayment shall be applied in
accordance with Section 2.12(d).
(d) Any prepayments made by the Borrower pursuant to Sections 2.12(b) or (c)
above shall be applied as follows: first, to Administrative Agent's fees and
reimbursable expenses then due and payable pursuant to any of the Loan
Documents; second, to all other Fees and reimbursable expenses of the Lenders
and the Issuing Bank then due and payable pursuant to any of the Loan Documents,
pro rata to the Lenders and the Issuing Bank based on their respective Pro Rata
Shares of such fees and expenses; third, to interest then due and payable on the
Loans made to Borrower, pro rata to the Lenders based on their respective Pro
Rata Share of such Loans; and fourth, to the principal balance of the Term
Loans, until the same shall have been paid in full, pro rata to the Lenders
based on their respective Pro Rata Share of such Term Loans. For the avoidance
of doubt, any of such proceeds not required to be paid by the Borrower pursuant
to Sections 2.12(b) or (c) shall be retained by the Borrower or its
Subsidiaries. Section 2.13 Interest on Loans (a) The Borrower shall pay interest
on each Base Rate Loan at the Base Rate in effect from time to time, and the
Borrower shall pay interest on each Eurodollar Loan at the Adjusted LIBO Rate
for the applicable Interest Period in effect for such Loan, plus the Applicable
Margin in effect from time to time.
(b) The Borrower shall pay interest on each Swingline Loan at the Swingline
Rate.
(c) If an Event of Default has occurred or is continuing, and at any time after
acceleration of the Loans pursuant to the last paragraph of Section 8.1, the
Borrower shall pay interest ("Default Interest") with respect to all Eurodollar
Loans at the rate otherwise applicable for the then-current Interest Period plus
an additional 2% per annum until the last day of such Interest Period, and
thereafter, and with respect to all Base Rate Loans (including all Swingline
Loans) and all other Obligations hereunder (other than Loans), at an all-in rate
in effect for Base Rate Loans, plus an additional 2% per annum.
(d) Interest on the principal amount of all Loans shall accrue from and
including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each Fiscal Quarter and on the Revolving
Commitment Termination Date or the Maturity Date, as the case may be. Interest
on all outstanding Eurodollar Loans shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of any Eurodollar Loans
having an Interest Period in excess of three months or 90 days, respectively, on
each day which occurs every three months or 90 days, as the case may be, after
the initial date of such Interest Period, and on the Revolving Commitment
Termination Date or the Maturity Date, as the case may be. Interest on each
Swingline Loans shall be payable quarterly in arrears on the last day of each
Fiscal Quarter, and on the Revolving Commitment Termination Date. Interest on
any Loan which is converted into a Loan of another Type or which is repaid or
prepaid shall be payable on the date of such conversion or on the date of any
such repayment or prepayment (on the amount repaid or prepaid) thereof. All
Default Interest shall be payable on demand. (e) The Administrative Agent shall
determine each interest rate applicable to the Loans hereunder and shall
promptly notify the Borrower and the Lenders of such rate in writing (or by
telephone, promptly confirmed in writing). Any such determination shall be
conclusive and binding for all purposes, absent manifest error.
Section 2.14 Fees.
(a) The Borrower shall pay to the Administrative Agent for its own account
fees in the amounts and at the times previously agreed upon by the Borrower and
the Administrative Agent in the Fee Letter.
(b) The Borrower agrees to pay to the Administrative Agent for the account of
each Revolving Lender a commitment fee, which shall accrue at the Applicable
Commitment Fee Percentage (determined daily in accordance with Schedule 1.1) on
the daily amount of the unused Revolving Commitment of such Lender during the
Availability Period; provided, however, that if such Lender continues to have
any Revolving Credit Exposure after the Revolving Commitment Termination Date,
then the commitment fee shall continue to accrue on the daily amount of such
Lender's Revolving Credit Exposure from and after the Revolving Commitment
Termination Date to the date that all of such Lender's Revolving Credit Exposure
has been paid in full. Accrued commitment fees shall be payable in arrears on
the last day of each Fiscal Quarter and on the Revolving Commitment Termination
Date, commencing on the first such date after the Closing Date; provided,
further, however, that any commitment fees accruing after the Revolving
Commitment Termination Date shall be payable on demand. For purposes of
computing commitment fees with respect to the Revolving Commitments, the
Revolving Commitment of each Revolving Lender shall be deemed used to the extent
of the outstanding Revolving Loans and LC Exposure, but not Swingline Exposure,
of such Lender. (c) The Borrower agrees to pay (i) to the Administrative Agent,
for the account of each Revolving Lender, a letter of credit fee with respect to
such Lender's participation in each Letter of Credit, which shall accrue at the
Applicable Margin for Eurodollar Loans then in effect on the average daily
amount of such Lender's LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) attributable to such Letter of Credit during
the period from and including the date of issuance of such Letter of Credit to
but excluding the date on which such Letter of Credit expires or is drawn in
full (including without limitation any LC Exposure that remains outstanding
after the Revolving Commitment Termination Date) and (ii) to the Issuing Bank
for its own account a fronting fee, which shall accrue at the rate of 0.125% per
annum on the average daily amount of the LC Exposure (excluding any portion
thereof attributable to unreimbursed LC Disbursements) during the Availability
Period (or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Accrued letter of credit fees and fronting fees shall be
due and payable quarterly in arrears on the last day of each Fiscal Quarter,
commencing with the last day of the Fiscal Quarter in which the first Letter of
Credit is issued, and ending on the Revolving Commitment Termination Date, and
thereafter accrued letter of credit fees and fronting fees shall be payable on
demand.
Section 2.15 Computation of Interest and Fees. All computations of interest and
fees hereunder shall be made on the basis of a year of 360 days for the actual
number of days (including the first day but excluding the last day) occurring in
the period for which such interest or fees are payable (to the extent computed
on the basis of days elapsed). Each determination by the Administrative Agent of
an interest amount or fee hereunder shall be made in good faith and, except for
manifest error, shall be final, conclusive and binding for all purposes. Section
2.16 Inability to Determine Interest Rates. If prior to the commencement of any
Interest Period for any Eurodollar Borrowing, (i) the Administrative Agent shall
have determined (which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the relevant interbank
market, adequate means do not exist for ascertaining LIBOR for such Interest
Period, or (ii) the Administrative Agent shall have received notice from the
Required Lenders that the Adjusted LIBO Rate does not adequately and fairly
reflect the cost to such Lenders (or Lender, as the case may be) of making,
funding or maintaining their (or its, as the case may be) Eurodollar Loans for
such Interest Period, the Administrative Agent shall give written notice (or
telephonic notice, promptly confirmed in writing) to the Borrower and to the
Lenders as soon as practicable thereafter. In the case of Eurodollar Loans,
until the Administrative Agent shall notify the Borrower and the Lenders that
the circumstances giving rise to such notice no longer exist, (i) the
obligations of the Lenders to make Eurodollar Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
Section 2.17 Illegality. If any Change in Law shall make it unlawful or
impossible for any Lender to make, maintain or fund any Eurodollar Loan and such
Lender shall so notify the Administrative Agent, the Administrative Agent shall
promptly give notice thereof to the Borrower and the other Lenders, whereupon
until such Lender notifies the Administrative Agent and the Borrower that the
circumstances giving rise to such suspension no longer exist, the obligation of
such Lender to make Eurodollar Loans, or to continue or convert outstanding
Loans as or into Eurodollar Loans, shall be suspended. In the case of the making
of a Eurodollar Revolving Borrowing, such Lender's Revolving Loan shall be made
as a Base Rate Loan as part of the same Revolving Borrowing for the same
Interest Period and if the affected Eurodollar Loan is then outstanding, such
Loan shall be converted to a Base Rate Loan either (i) on the last day of the
then current Interest Period applicable to such Eurodollar Loan if such Lender
may lawfully continue to maintain such Loan to such date or (ii) immediately if
such Lender shall determine that it may not lawfully continue to maintain such
Eurodollar Loan to such date. Notwithstanding the foregoing, the affected Lender
shall, prior to giving such notice to the Administrative Agent, designate a
different Applicable Lending Office if such designation would avoid the need for
giving such notice and if such designation would not otherwise be
disadvantageous to such Lender in the good faith exercise of its discretion.
Section 2.18 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit or similar
requirement that is not otherwise included in the determination of the Adjusted
LIBO Rate hereunder against assets of, deposits with or for the account of, or
credit extended by, any Lender (except any such reserve requirement reflected in
the Adjusted LIBO Rate) or the Issuing Bank; (ii) impose on any Lender or on the
Issuing Bank or the eurodollar interbank market any other condition affecting
this Agreement or any Eurodollar Loans made by such Lender or any Letter of
Credit or any participation therein; or (iii) change the basis of taxation of
the overall net income or overall gross income by the United States or any
foreign jurisdiction or any political subdivision of either thereof under the
laws of which any Lender is organized or has its lending office.
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined that on or after the
date of this Agreement any Change in Law regarding capital requirements has or
would have the effect of reducing the rate of return on such Lender's or the
Issuing Bank's capital (or on the capital of such Lender's or the Issuing Bank's
parent corporation) as a consequence of its obligations hereunder or under or in
respect of any Letter of Credit to a level below that which such Lender or the
Issuing Bank or such Lender's or the Issuing Bank's parent corporation could
have achieved but for such Change in Law (taking into consideration such
Lender's or the Issuing Bank's policies or the policies of such Lender's or the
Issuing Bank's parent corporation with respect to capital adequacy) then, from
time to time, within five (5) Business Days after receipt by the Borrower of
written demand by such Lender (with a copy thereof to the Administrative Agent),
the Borrower shall pay to such Lender such additional amounts as will compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's parent
corporation for any such reduction suffered. (c) A certificate of a Lender or
the Issuing Bank setting forth the amount or amounts necessary to compensate
such Lender or the Issuing Bank or such Lender's or the Issuing Bank's parent
corporation, as the case may be, specified in paragraph (a) or (b) of this
Section shall be delivered to the Borrower (with a copy to the Administrative
Agent) and shall be conclusive, absent manifest error. The Borrower shall pay
any such Lender or the Issuing Bank, as the case may be, such amount or amounts
within 10 days after receipt thereof.
(d) Failure or delay on the part of any Lender or the Issuing Bank to demand
compensation pursuant to this Section shall not constitute a waiver of such
Lender's or the Issuing Bank's right to demand such compensation.
Section 2.19 Funding Indemnity. In the event of (a) the payment of any principal
of a Eurodollar Loan other than on the last day of the Interest Period
applicable thereto (including as a result of an Event of Default), (b) the
conversion or continuation of a Eurodollar Loan other than on the last day of
the Interest Period applicable thereto, or (c) the failure by the Borrower to
borrow, prepay, convert or continue any Eurodollar Loan on the date specified in
any applicable notice (regardless of whether such notice is withdrawn or
revoked) then, in any such event, the Borrower shall compensate each Lender,
within five (5) Business Days after written demand from such Lender, for any
loss, cost or expense attributable to such event. In the case of a Eurodollar
Loan, such loss, cost or expense shall be deemed to include an amount determined
by such Lender to be the excess, if any, of (A) the amount of interest that
would have accrued on the principal amount of such Eurodollar Loan if such event
had not occurred at the Adjusted LIBO Rate applicable to such Eurodollar Loan
for the period from the date of such event to the last day of the then current
Interest Period therefor (or in the case of a failure to borrow, convert or
continue, for the period that would have been the Interest Period for such
Eurodollar Loan) over (B) the amount of interest that would accrue on the
principal amount of such Eurodollar Loan for the same period if the Adjusted
LIBO Rate were set on the date such Eurodollar Loan was prepaid or converted or
the date on which the Borrower failed to borrow, convert or continue such
Eurodollar Loan. A certificate as to any additional amount payable under this
Section 2.19 submitted to the Borrower by any Lender (with a copy to the
Administrative Agent) shall be conclusive, absent manifest error. Section 2.20
Taxes.
(a) Any and all payments by or on account of any obligation of the Borrower
hereunder shall be made free and clear of and without deduction for any
Indemnified Taxes or Other Taxes; provided, however, that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from such payments,
then (i) the sum payable shall be increased as necessary so that after making
all required deductions (including deductions applicable to additional sums
payable under this Section) the Administrative Agent, any Lender or the Issuing
Bank (as the case may be) shall receive an amount equal to the sum it would have
received had no such deductions been made, (ii) the Borrower shall make such
deductions and (iii) the Borrower shall pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent, each Lender and
the Issuing Bank, within five (5) Business Days after written demand therefor,
for the full amount of any Indemnified Taxes or Other Taxes paid by the
Administrative Agent, such Lender or the Issuing Bank, as the case may be, on or
with respect to any payment by or on account of any obligation of the Borrower
hereunder (including Indemnified Taxes or Other Taxes imposed or asserted on or
attributable to amounts payable under this Section) and any penalties, interest
and reasonable expenses arising therefrom or with respect thereto, whether or
not such Indemnified Taxes or Other Taxes were correctly or legally imposed or
asserted by the relevant Governmental Authority. A certificate as to the amount
of such payment or liability delivered to the Borrower by a Lender or the
Issuing Bank, or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Bank, shall be conclusive absent manifest error.
(d) As soon as practicable after any payment of Indemnified Taxes or Other
Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to
the Administrative Agent the original or a certified copy of a receipt issued
by such Governmental Authority evidencing such payment, a copy of the return
reporting such payment or other evidence of such payment reasonably satisfactory
to the Administrative Agent.
(e) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the Code or any treaty to which the United States is a
party, with respect to payments under this Agreement shall deliver to the
Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan agreement
entered into in the ordinary course of its trade or business, within the meaning
of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
Section 2.21 Payments Generally; Pro Rata Treatment; Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made by it hereunder
(whether of principal, interest, fees or reimbursement of LC Disbursements, or
of amounts payable under Section 2.18, 2.19 or 2.20, or otherwise) prior to
12:00 noon, on the date when due, in immediately available funds, free and clear
of any defenses, rights of set-off, counterclaim, or withholding or deduction of
taxes. Any amounts received after such time on any date may, in the discretion
of the Administrative Agent, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest thereon. All such
payments shall be made to the Administrative Agent at the Payment Office, except
payments to be made directly to the Issuing Bank or Swingline Lender as
expressly provided herein and except that payments pursuant to Sections 2.18,
2.19 and 2.20 and 10.3 shall be made directly to the Persons entitled thereto.
The Administrative Agent shall distribute any such payments received by it for
the account of any other Person to the appropriate recipient promptly following
receipt thereof. If any payment hereunder shall be due on a day that is not a
Business Day, the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest, interest
thereon shall be made payable for the period of such extension. All payments
hereunder shall be made in Dollars. (b) If at any time insufficient funds are
received by and available to the Administrative Agent to pay fully all amounts
of principal, unreimbursed LC Disbursements, interest and fees then due
hereunder, such funds shall be applied (i) first, towards payment of interest
and fees then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such parties, and
(ii) second, towards payment of principal and unreimbursed LC Disbursements then
due hereunder, ratably among the parties entitled thereto in accordance with the
amounts of principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or counterclaim or
otherwise, obtain payment in respect of any principal of or interest on any of
its Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Loans and accrued interest thereon
than the proportion received by any other Lender, then the Lender receiving such
greater proportion shall purchase (for cash at face value) participations in the
Loans of other Lenders to the extent necessary so that the benefit of all such
payments shall be shared by the Lenders ratably in accordance with the aggregate
amount of principal of and accrued interest on their respective Loans; provided,
that (i) if any such participations are purchased and all or any portion of the
payment giving rise thereto is recovered, such participations shall be rescinded
and the purchase price restored to the extent of such recovery, without
interest, and (ii) the provisions of this paragraph shall not be construed to
apply to any payment made by the Borrower pursuant to and in accordance with the
express terms of this Agreement or any payment obtained by a Lender as
consideration for the assignment of or sale of a participation in any of its
Loans to any assignee or participant, other than to the Borrower or any
Subsidiary or Affiliate thereof (as to which the provisions of this paragraph
shall apply). The Borrower consents to the foregoing and agrees, to the extent
it may effectively do so under applicable law, that any Lender acquiring a
participation pursuant to the foregoing arrangements may exercise against the
Borrower rights of set-off and counterclaim with respect to such participation
as fully as if such Lender were a direct creditor of the Borrower in the amount
of such participation. (d) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the Borrower has made such payment on such date in accordance
herewith and may, in reliance upon such assumption, distribute to the Lenders or
the Issuing Bank, as the case may be, the amount or amounts due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank with interest thereon, for each day from and including
the date such amount is distributed to it to but excluding the date of payment
to the Administrative Agent, at the greater of the Federal Funds Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to be made by it
pursuant to Section 2.6(b), 2.7(b), 2.21(d), 2.23(d), or 10.3(d), then the
Administrative Agent may, in its discretion (notwithstanding any contrary
provision hereof), apply any amounts thereafter received by the Administrative
Agent for the account of such Lender to satisfy such Lender's obligations under
such Sections until all such unsatisfied obligations are fully paid. Section
2.22 Mitigation of Obligations; Replacement of Lenders.
(a) If any Lender requests compensation under Section 2.18, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to Section 2.20, then such
Lender shall use reasonable efforts to designate a different lending office for
funding or booking its Loans hereunder or to assign its rights and obligations
hereunder to another of its offices, branches or affiliates, if, in the sole
judgment of such Lender, such designation or assignment (i) would eliminate or
reduce amounts payable under Section 2.18 or Section 2.20, as the case may be,
in the future and (ii) would not subject such Lender to any unreimbursed cost or
expense and would not otherwise be disadvantageous to such Lender. The Borrower
hereby agrees to pay all costs and expenses incurred by any Lender in connection
with such designation or assignment.
(b) If any Lender requests compensation under Section 2.18, or if the Borrower
is required to pay any additional amount to any Lender or any Governmental
Authority of the account of any Lender pursuant to Section 2.20, or if any
Lender defaults in its obligation to fund Loans hereunder, then the Borrower
may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions set forth in
Section 10.4(b)) all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender); provided, that (i) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(in the case of such outstanding principal and accrued interest) and from the
Borrower (in the case of all other amounts) and (iii) in the case of a claim for
compensation under Section 2.18 or payments required to be made pursuant to
Section 2.20, such assignment will result in a reduction in future claims for
such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply. Section 2.23 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in reliance upon the
agreements of the other Revolving Lenders pursuant to Section 2.23(d), agrees to
issue, at the request of the Borrower, Letters of Credit for the account of the
Borrower on the terms and conditions hereinafter set forth; provided, however,
that (i) each Letter of Credit shall expire on the earlier of (A) the date one
year after the date of issuance of such Letter of Credit (or in the case of any
renewal or extension thereof, one year after such renewal or extension) and (B)
the date that is five (5) Business Days prior to the Revolving Commitment
Termination Date; and (ii) the Borrower may not request any Letter of Credit,
if, after giving effect to such issuance (A) the aggregate LC Exposure would
exceed the LC Commitment or (B) the aggregate LC Exposure, plus the aggregate
outstanding Revolving Loans and Swingline Loans of all Lenders would exceed the
Aggregate Revolving Commitment Amount. Upon the issuance of each Letter of
Credit each Revolving Lender shall be deemed to, and hereby irrevocably and
unconditionally agrees to, purchase from the Issuing Bank without recourse a
participation in such Letter of Credit equal to such Lender's Pro Rata Share of
the aggregate amount available to be drawn under such Letter of Credit. Each
issuance of a Letter of Credit shall be deemed to utilize the Revolving
Commitment of each Revolving Lender by an amount equal to the amount of such
participation. (b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be),
the expiration date of such Letter of Credit, the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount
of such Letter of Credit) will be subject to the further conditions that such
Letter of Credit shall be in such form and contain such terms as the Issuing
Bank shall approve and that the Borrower shall have executed and delivered any
additional applications, agreements and instruments relating to such Letter of
Credit as the Issuing Bank shall reasonably require; provided, however, that in
the event of any conflict between such applications, agreements or instruments
and this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any Letter of
Credit, the Issuing Bank will confirm with the Administrative Agent (by
telephone or in writing) that the Administrative Agent has received such notice
and if not, the Issuing Bank will provide the Administrative Agent with a copy
thereof. Unless the Issuing Bank has received notice from the Administrative
Agent on or before the Business Day immediately preceding the date the Issuing
Bank is to issue the requested Letter of Credit (1) directing the Issuing Bank
not to issue the Letter of Credit because such issuance is not then permitted
hereunder because of the limitations set forth in Section 2.23(a) or that one
or more conditions specified in Article III are not then satisfied, then,
subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing
Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to represent a
demand for payment under a Letter of Credit promptly following its receipt
thereof. The Issuing Bank shall notify the Borrower and the Administrative Agent
of such demand for payment and whether the Issuing Bank has made or will make a
LC Disbursement thereunder; provided, however, that any failure to give or delay
in giving such notice shall not relieve the Borrower of its obligation to
reimburse the Issuing Bank and the Revolving Lenders with respect to such LC
Disbursement. The Borrower shall be irrevocably and unconditionally obligated to
reimburse the Issuing Bank for any LC Disbursements paid by the Issuing Bank in
respect of such drawing, without presentment, demand or other formalities of any
kind. Unless the Borrower shall have notified the Issuing Bank and the
Administrative Agent prior to 11:00 a.m. on the Business Day immediately prior
to the date on which such drawing is honored that the Borrower intends to
reimburse the Issuing Bank for the amount of such drawing in funds other than
from the proceeds of Revolving Loans, the Borrower shall be deemed to have
timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Revolving Lenders to make a Base Rate Borrowing on the date on
which such drawing is honored in an exact amount due to the Issuing Bank;
provided, however, that for purposes solely of such Borrowing, the conditions
precedents set forth in Section 3.2 hereof shall not be applicable. The
Administrative Agent shall notify the Revolving Lenders of such Borrowing in
accordance with Section 2.3, and each Revolving Lender shall make the proceeds
of its Base Rate Loan included in such Borrowing available to the Administrative
Agent for the account of the Issuing Bank in accordance with Section 2.7. The
proceeds of such Borrowing shall be applied directly by the Administrative Agent
to reimburse the Issuing Bank for such LC Disbursement. (e) If for any reason a
Base Rate Borrowing may not be (as determined in the sole discretion of the
Administrative Agent), or is not, made in accordance with the foregoing
provisions, then each Revolving Lender (other than the Issuing Bank) shall be
obligated to fund the participation that such Lender purchased pursuant to
subsection (a) in an amount equal to its Pro Rata Share of such LC Disbursement
on and as of the date which such Base Rate Borrowing should have occurred. Each
Revolving Lender's obligation to fund its participation shall be absolute and
unconditional and shall not be affected by any circumstance, including without
limitation (i) any setoff, counterclaim, recoupment, defense or other right that
such Lender or any other Person may have against the Issuing Bank or any other
Person for any reason whatsoever, (ii) the existence of a Default or an Event of
Default or the termination of the Aggregate Revolving Commitments, (iii) any
adverse change in the condition (financial or otherwise) of the Borrower or any
of its Subsidiaries, (iv) any breach of this Agreement by the Borrower or any
other Lender, (v) any amendment, renewal or extension of any Letter of Credit or
(vi) any other circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing. On the date that such participation is required
to be funded, each Revolving Lender shall promptly transfer, in immediately
available funds, the amount of its participation to the Administrative Agent for
the account of the Issuing Bank. Whenever, at any time after the Issuing Bank
has received from any such Lender the funds for its participation in a LC
Disbursement, the Issuing Bank (or the Administrative Agent on its behalf)
receives any payment on account thereof, the Administrative Agent or the Issuing
Bank, as the case may be, will distribute to such Lender its Pro Rata Share of
such payment; provided, however, that if such payment is required to be returned
for any reason to the Borrower or to a trustee, receiver, liquidator, custodian
or similar official in any bankruptcy proceeding, such Lender will return to the
Administrative Agent or the Issuing Bank any portion thereof previously
distributed by the Administrative Agent or the Issuing Bank to it.
(f) To the extent that any Revolving Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.23 on the due
date therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, however,
that if such Lender shall fail to make such payment to the Issuing Bank within
three (3) Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the Default
Rate.
(g) If any Event of Default shall occur and be continuing, on the Business Day
that the Borrower receives notice from the Administrative Agent or the Required
Lenders demanding the deposit of cash collateral pursuant to this paragraph, the
Borrower shall deposit in an account with the Administrative Agent, in the name
of the Administrative Agent and for the benefit of the Lenders, an amount in
cash equal to the LC Exposure as of such date plus any accrued and unpaid
interest thereon; provided, that the obligation to deposit such cash collateral
shall become effective immediately, and such deposit shall become immediately
due and payable, without demand or notice of any kind, upon the occurrence of
any Event of Default with respect to the Borrower described in clause (g) or (h)
of Section 8.1. Such deposit shall be held by the Administrative Agent as
collateral for the payment and performance of the obligations of the Borrower
under this Agreement. The Administrative Agent shall have exclusive dominion and
control, including the exclusive right of withdrawal, over such account.
Borrower agrees to execute any documents and/or certificates to effectuate the
intent of this paragraph. Other than any interest earned on the investment of
such deposits, which investments shall be made at the option and sole discretion
of the Administrative Agent and at the Borrower's risk and expense, such
deposits shall not bear interest. Interest and profits, if any, on such
investments shall accumulate in such account. Moneys in such account shall
applied by the Administrative Agent to reimburse the Issuing Bank for LC
Disbursements for which it had not been reimbursed and to the extent so applied,
shall be held for the satisfaction of the reimbursement obligations of the
Borrower for the LC Exposure at such time or, if the maturity of the Loans has
been accelerated, with the consent of the Required Lenders, be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower with three Business Days after all
Events of Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter, the Issuing Bank shall
deliver (through the Administrative Agent) to each Revolving Lender and the
Borrower a report describing the aggregate Letters of Credit outstanding at the
end of such fiscal quarter. Upon the request of any Lender from time to time,
the Issuing Bank shall deliver to such Lender any other information reasonably
requested by such Lender with respect to each Letter of Credit then outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements hereunder shall be
absolute, unconditional and irrevocable and shall be performed strictly in
accordance with the terms of this Agreement under all circumstances whatsoever
and irrespective of any of the following circumstances: (i) Any lack of validity
or enforceability of any Letter of Credit or this Agreement; (ii) The existence
of any claim, set-off, defense or other right which the Borrower or any
Subsidiary or Affiliate of the Borrower may have at any time against a
beneficiary or any transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be acting), any Lender
(including the Issuing Bank) or any other Person, whether in connection with
this Agreement or the Letter of Credit or any document related hereto or thereto
or any unrelated transaction; (iii) Any draft or other document presented under
a Letter of Credit proving to be forged, fraudulent or invalid in any respect or
any statement therein being untrue or inaccurate in any respect; (iv) Payment by
the Issuing Bank under a Letter of Credit against presentation of a draft or
other document to the Issuing Bank that does not comply with the terms of such
Letter of Credit; (v) Any other event or circumstance whatsoever, whether or not
similar to any of the foregoing, that might, but for the provisions of this
Section, constitute a legal or equitable discharge of, or provide a right of
setoff against, the Borrower's obligations hereunder; or (vi) The existence of a
Default or an Event of Default. Neither the Administrative Agent, the Issuing
Bank, the Lenders nor any Related Party of any of the foregoing shall have any
liability or responsibility by reason of or in connection with the issuance or
transfer of any Letter of Credit or any payment or failure to make any payment
thereunder (irrespective of any of the circumstances referred to above), or any
error, omission, interruption, loss or delay in transmission or delivery of any
draft, notice or other communication under or relating to any Letter of Credit
(including any document required to make a drawing thereunder), any error in
interpretation of technical terms or any consequence arising from causes beyond
the control of the Issuing Bank; provided, that the foregoing shall not be
construed to excuse the Issuing Bank from liability to the Borrower to the
extent of any direct damages (as opposed to consequential damages, claims in
respect of which are hereby waived by the Borrower to the extent permitted by
applicable law) suffered by the Borrower that are caused by the Issuing Bank's
failure to exercise care when determining whether drafts or other documents
presented under a Letter of Credit comply with the terms thereof. The parties
hereto expressly agree, that in the absence of gross negligence or willful
misconduct on the part of the Issuing Bank (as finally determined by a court of
competent jurisdiction), the Issuing Bank shall be deemed to have exercised care
in each such determination. In furtherance of the foregoing and without limiting
the generality thereof, the parties agree that, with respect to documents
presented that appear on their face to be in substantial compliance with the
terms of a Letter of Credit, the Issuing Bank may, in its sole discretion,
either accept and make payment upon such documents without responsibility for
further investigation, regardless of any notice or information to the contrary,
or refuse to accept and make payment upon such documents if such documents are
not in strict compliance with the terms of such Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform Customs and
Practices for Documentary Credits (1993 Revision), International Chamber of
Commerce Publication No. 500, as the same may be amended from time to time, and,
to the extent not inconsistent therewith, the governing law of this Agreement
set forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions To Effectiveness. The obligations of the Lenders
(including the Swingline Lender) to make initial Loans hereunder and the
obligation of the Issuing Bank to issue any initial Letter of Credit hereunder
shall not become effective until the date on which each of the following
conditions is satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and other amounts due
and payable on or prior to the Closing Date, including reimbursement or payment
of all out-of-pocket expenses (including reasonable fees, charges and
disbursements of counsel to the Administrative Agent) required to be reimbursed
or paid by the Borrower hereunder, under any other Loan Document and under any
agreement with the Administrative Agent or SunTrust Capital Markets, Inc., as
Lead Arranger. (b) The Administrative Agent (or its counsel) shall have received
the following: (i) a counterpart of this Agreement signed by or on behalf of
each party hereto or written evidence satisfactory to the Administrative Agent
(which may include telecopy transmission of a signed signature page of this
Agreement) that such party has signed a counterpart of this Agreement; (ii) if
requested by any Lender, the duly executed Notes payable to such Lender; (iii)
the duly executed Subsidiary Guaranty Agreement and Indemnity and Contribution
Agreement; (iv) a certificate of the Secretary or Assistant Secretary of each
Loan Party, attaching and certifying copies of its bylaws and of the resolutions
of its boards of directors, authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and certifying the name, title and
true signature of each officer of such Loan Party executing the Loan Documents
to which it is a party; (v) certified copies of the articles of incorporation or
other charter documents of each Loan Party, together with certificates of good
standing or existence, as may be available from the Secretary of State of the
jurisdiction of incorporation or formation of such Loan Party and each other
jurisdiction as requested by the Administrative Agent; (vi) a favorable written
opinion of Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx LLP counsel to the Loan Parties and
Xxxxxx X. Xxxxx, General Counsel of the Borrower, addressed to the
Administrative Agent and each of the Lenders, and covering such matters relating
to the Loan Parties, the Loan Documents and the transactions contemplated
therein as the Administrative Agent or the Required Lenders shall reasonably
request; (vii) a certificate, dated the Closing Date and signed by a Responsible
Officer, confirming compliance with the conditions set forth in paragraphs (a),
(b) and (c) of Section 3.2; (viii) duly executed Notices of Borrowing, if
applicable; (ix) a duly executed funds disbursement agreement; (x) a duly
executed Fee Letter; (xi) certified copies of all consents, approvals,
authorizations, registrations and filings and orders required or advisable to be
made or obtained under any Requirement of Law, or by any Contractual Obligation
of each Loan Party, in connection with the execution, delivery, performance,
validity and enforceability of the Loan Documents or any of the transactions
contemplated thereby, and such consents, approvals, authorizations,
registrations, filings and orders shall be in full force and effect and all
applicable waiting periods shall have expired; (xii) copies of the consolidated
financial statements for Borrower and its Subsidiaries for the fiscal years
ending 1998, 1999 and 2000, including balance sheets, statements of income and
statements of cash flow audited by independent public accountants of recognized
national standing and prepared in conformity with GAAP and such other financial
information as the Administrative Agent may request; (xiii) certificates of
insurance issued on behalf of insurers of the Loan Parties, describing in
reasonable detail the types and amounts of insurance (property and liability)
maintained by the Borrower and all guarantors, naming Administrative Agent as
additional insured; (xiv) evidence satisfactory to the Administrative Agent that
the Existing Credit Agreement has been terminated and all interest, fees and
principal accrued thereunder through the Closing Date will be paid in full from
the initial Revolving Loans under this Agreement; (xv) arrangements satisfactory
to the Administrative Agent in its sole discretion that (A) the Existing
Synthetic Lease and any related financing agreements and collateral instruments
are being (1) terminated and released or (2) assigned to a Subsidiary Loan
Party, and that any interest, fees, principal, rents, and other amounts owing
under the Existing Synthetic Lease and related financing agreements through the
Closing Date will be paid in full from the initial Loans, (B) any collateral
instruments affecting any real and personal property located in the states of
Alabama, Arkansas, Connecticut, Florida, Georgia, Louisiana, Missouri,
Mississippi, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee,
Virginia and West Virginia which is subject to the Existing Synthetic Lease have
been released or assigned to a Subsidiary Loan Party, and that any such real and
personal property has been conveyed to the Borrower or a Subsidiary Loan Party,
(C) any collateral instruments affecting any real and personal property located
in the states of Delaware and New York which is subject to the Existing
Synthetic Lease will be released or assigned to a Subsidiary Loan Party, and
that any such real and personal property will be conveyed to the Borrower or a
Subsidiary Loan Party on or before August 26, 2002, and (D) with respect to the
real and personal property described in sub-sections (B) and (C) above, in each
case together with evidence satisfactory to the Administrative Agent that
arrangements have been made for any appropriate recording of such terminations,
releases and conveyances, and payment of any filing and recording fees, costs,
and expenses, including any transfer taxes and other amounts payable in respect
thereof; (xvi) copies of all merger documents executed, or filed with government
authorities, in connection with the merger of Ruby Tuesday Business Development,
Inc. into the Borrower; (xvii) all other documents and information as the
Administrative Agent reasonably requests. Section 3.2 Each Credit Event. The
obligation of each Lender to make a Loan on the occasion of any Borrowing and of
the Issuing Bank to issue, amend, renew or extend any Letter of Credit is
subject to the satisfaction of the following conditions: (a) at the time of and
immediately after giving effect to such Borrowing or the issuance, amendment,
renewal or extension of such Letter of Credit, as applicable, no Default or
Event of Default shall exist or would result; and (b) all representations and
warranties of each Loan Party set forth in the Loan Documents shall be true and
correct in all material respects on and as of the date of such Borrowing or the
date of issuance, amendment, extension or renewal of such Letter of Credit, in
each case before and after giving effect thereto or, if such representations and
warranties relate solely to an earlier date, were true and correct as of such
earlier date; (c) since the date of the most recent financial statements of the
Borrower described in Section 4.4 or delivered pursuant to Section 5.1(a), there
shall have been no change which has had or could reasonably be expected to have
a Material Adverse Effect; and (d) the Administrative Agent shall have received
such other documents, certificates, information or legal opinions as the
Administrative Agent or the Required Lenders may reasonably request, all in form
and substance reasonably satisfactory to the Administrative Agent or the
Required Lenders.
Each Borrowing and each issuance, amendment, extension or
renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
Section 3.3 Delivery of Documents. All of the Loan Documents, certificates,
legal opinions and other documents and papers referred to in this Article III,
unless otherwise specified, shall be delivered to the Administrative Agent for
the account of each of the Lenders and, except for the Notes, in sufficient
counterparts or copies for each of the Lenders and shall be in form and
substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative Agent
and each Lender as follows:
Section 4.1 Existence; Power. The Borrower and each of its Subsidiaries (i) is
duly organized, validly existing and in good standing as a corporation or
limited liability company under the laws of the jurisdiction of its
organization, (ii) has all requisite power and authority to carry on its
business as now conducted, and (iii) is duly qualified to do business, and is in
good standing, in each jurisdiction where such qualification is required, except
where a failure to be so qualified could not reasonably be expected to result in
a Material Adverse Effect.
Section 4.2 Organizational Power; Authorization. The execution, delivery and
performance by each Loan Party of the Loan Documents to which it is a party are
within such Loan Party's organizational powers and have been duly authorized by
all necessary organizational, and if required, shareholder action. This
Agreement has been duly executed and delivered by the Borrower, and constitutes,
and each other Loan Document to which any Loan Party is a party, when executed
and delivered by such Loan Party, will constitute, valid and binding obligations
of the Borrower or such Loan Party (as the case may be), enforceable against it
in accordance with their respective terms, except as may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium, or similar laws
affecting the enforcement of creditors' rights generally and by general
principles of equity.
Section 4.3 Governmental Approvals; No Conflicts. The execution, delivery and
performance by the Borrower of this Agreement, and by each Loan Party of the
other Loan Documents to which it is a party (a) do not require any consent or
approval of, registration or filing with, or any action by, any Governmental
Authority, except those as have been obtained or made and are in full force and
effect, (b) will not violate any applicable law, rule or regulation or the
charter, bylaws or other organizational documents of the Borrower or any of its
Subsidiaries or any judgment, order or ruling of any Governmental Authority, (c)
will not violate or result in a default under any indenture, material agreement
or other material instrument binding on the Borrower or any of its Subsidiaries
or any of its assets or give rise to a right thereunder to require any payment
to be made by the Borrower or any of its Subsidiaries and (d) will not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries, except Liens (if any) created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished to each Lender the
audited consolidated balance sheet of the Borrower and its Subsidiaries as of
June 4, 2001 and the related consolidated statements of income, shareholders'
equity and cash flows for the fiscal year then ended prepared by KPMG L.L.P.
Such financial statements fairly present the consolidated financial condition of
the Borrower and its Subsidiaries as of such dates and the consolidated results
of operations for such periods in conformity with GAAP consistently applied.
Since June 4, 2001, there have been no changes with respect to the Borrower and
its Subsidiaries which have had or could reasonably be expected to have, singly
or in the aggregate, a Material Adverse Effect. Section 4.5 Litigation and
Environmental Matters.
(a) No litigation, investigation or proceeding of or before any arbitrators or
Governmental Authorities is pending against or, to the knowledge of the
Borrower, threatened against or affecting the Borrower or any of its
Subsidiaries (i) as to which there is a reasonable possibility of an adverse
determination that could reasonably be expected to have, either individually or
in the aggregate, a Material Adverse Effect or (ii) which in any manner draws
into question the validity or enforceability of this Agreement or any other Loan
Document. (b) Neither the Borrower nor any of its Subsidiaries (i) has failed to
comply with any Environmental Law or to obtain, maintain or comply with any
permit, license or other approval required under any Environmental Law, (ii) has
become subject to any Environmental Liability, (iii) has received notice of any
claim with respect to any Environmental Liability or (iv) knows of any basis for
any Environmental Liability, except for any failure or Environmental Liability
that would not have a Material Adverse Effect. Section 4.6 Compliance with Laws
and Agreements. The Borrower and each Subsidiary is in compliance with (a) all
applicable laws, rules, regulations, judgments, orders and rulings of any
Governmental Authority, and (b) all indentures, agreements or other instruments
binding upon it or its properties, except in either case where non-compliance,
either singly or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. Section 4.7 Investment Company Act, Etc. Neither the
Borrower nor any of its Subsidiaries is (a) an "investment company", or is
"controlled" by an "investment company", as such terms are defined in, or
subject to regulation under, the Investment Company Act of 1940, as amended, (b)
a "holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935, as amended or (c) otherwise subject to any
other regulatory scheme limiting its ability to incur debt.
Section 4.8 Taxes. The Borrower and its Subsidiaries and each other Person for
whose taxes the Borrower or any Subsidiary could become liable have timely filed
or caused to be filed all Federal income tax returns and all other material tax
returns that are required to be filed by them, and have paid all taxes shown to
be due and payable on such returns or on any assessments made against it or its
property and all other taxes, fees or other charges imposed on it or any of its
property by any Governmental Authority, except (i) to the extent the failure to
do so would not have a Material Adverse Effect or (ii) where the same are
currently being contested in good faith by appropriate proceedings and for which
the Borrower or such Subsidiary, as the case may be, has set aside on its books
adequate reserves in accordance with GAAP. As of the Closing Date, the charges,
accruals and reserves on the books of the Borrower and its Subsidiaries in
respect of such taxes are adequate, and no tax liabilities that could be
materially in excess of the amount so provided are anticipated. Section 4.9
Margin Regulations. None of the proceeds of any of the Loans or Letters of
Credit will be used for "purchasing" or "carrying" any "margin stock" with the
respective meanings of each of such terms under Regulation U as now and from
time to time hereafter in effect or for any purpose that violates the provisions
of the applicable Margin Regulations.
Section 4.10 ERISA. No ERISA Event has occurred or is reasonably expected to
occur that, when taken together with all other such ERISA Events for which
liability is reasonably expected to occur, could reasonably be expected to
result in a Material Adverse Effect. The present value of all accumulated
benefit obligations under each Plan (based on the assumptions used for purposes
of Statement of Financial Standards No. 87) did not, as of the date of the most
recent financial statements reflecting such amounts, exceed the fair market
value of the assets of such Plan, and the present value of all accumulated
benefit obligations of all underfunded Plans (based on the assumptions used for
purposes of Statement of Financial Standards No. 87) did not, as of the date of
the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of all such underfunded Plans. Section 4.11 Ownership
of Property. (a) As of the Closing Date, each of the Borrower and its
Subsidiaries has good title to, or valid leasehold or other appropriate legal
interests in, all of its real and personal property material to the operation of
its business, including, without limitation, all of its real and personal
property subject to the Existing Synthetic Leases, free and clear of any Liens
except Permitted Liens.
(b) Each of the Borrower and its Subsidiaries owns, or is licensed, or otherwise
has the right, to use, all patents, trademarks, service marks, trade names,
copyrights, franchises, licenses, and other intellectual property material to
its business, and the use thereof by the Borrower and its Subsidiaries does not
infringe on the rights of any other Person, except for any such infringements
that, individually or in the aggregate, would not have a Material Adverse
Effect.
Section 4.12 Disclosure. The Borrower has disclosed to the Lenders all
agreements, instruments, and corporate or other restrictions to which the
Borrower or any of its Subsidiaries is subject, and all other matters known to
any of them, that, individually or in the aggregate, could reasonably be
expected to result in a Material Adverse Effect. As of the date of delivery to
the Administrative Agent, the Information Memorandum did not contain any
material misstatement of fact or omit to state any material fact necessary to
make the statements therein, taken as a whole, in light of the circumstances
under which they were made, not misleading. None of the other reports (including
without limitation all reports that the Borrower is required to file with the
Securities and Exchange Commission), financial statements, certificates or other
information furnished by or on behalf of the Borrower to the Administrative
Agent or any Lender or anyone on their behalf in connection with the negotiation
or syndication of this Agreement or any other Loan Document or delivered
hereunder or thereunder (as modified or supplemented by any other information so
furnished) contain any material misstatement of fact or omits to state any
material fact necessary to make the statements therein, taken as a whole, in
light of the circumstances under which they were made, not misleading. Section
4.13 Labor Relations. There are no strikes, lockouts or other material labor
disputes, or grievances against the Borrower or any of its Subsidiaries, or, to
the Borrower's knowledge, threatened against or affecting the Borrower or any of
its Subsidiaries, and no significant unfair labor practice, charges or
grievances are pending against the Borrower or any of its Subsidiaries, or to
the Borrower's knowledge, threatened against any of them before any Governmental
Authority. All payments due from the Borrower or any of its Subsidiaries
pursuant to the provisions of any collective bargaining agreement have been paid
or accrued as a liability on the books of the Borrower or any such Subsidiary,
except where the failure to do so could not reasonably be expected to have a
Material Adverse Effect. Section 4.14 Subsidiaries. As of the Closing Date,
Schedule 4.14 sets forth the name of, the ownership interest of the Borrower in,
the jurisdiction of incorporation or organization of, and the type of, each
Subsidiary and identifies each Material Subsidiary that is a Subsidiary Loan
Party.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has
a Commitment hereunder or the principal of and interest on any Loan or any fee
or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
Section 5.1 Financial Statements and Other Information. The Borrower will
deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after the end of each
fiscal year of Borrower, a copy of the annual audited report for such fiscal
year for the Borrower and its Subsidiaries, containing consolidated balance
sheets of the Borrower and its Subsidiaries as of the end of such fiscal year
and the related consolidated statements of income, stockholders' equity and cash
flows (together with all footnotes thereto) of the Borrower and its Subsidiaries
for such fiscal year, setting forth in each case in comparative form the figures
for the previous fiscal year, all in reasonable detail and reported on by KPMG
L.L.P. or other independent public accountants of nationally recognized standing
(without a "going concern" or like qualification, exception or explanation and
without any qualification or exception as to scope of such audit) to the effect
that such financial statements present fairly in all material respects the
financial condition and the results of operations of the Borrower and its
Subsidiaries for such fiscal year on a consolidated basis in accordance with
GAAP and that the examination by such accountants in connection with such
consolidated financial statements has been made in accordance with generally
accepted auditing standards; (b) as soon as available and in any event within 45
days after the end of each of the first three fiscal quarters of each fiscal
year of the Borrower, an unaudited consolidated balance sheet of the Borrower
and its Subsidiaries as of the end of such fiscal quarter and the related
unaudited consolidated statements of income and cash flows of the Borrower and
its Subsidiaries for such fiscal quarter and the then elapsed portion of such
fiscal year, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's previous
fiscal year, all certified by the chief financial officer or treasurer of the
Borrower as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes; (c) concurrently with the delivery of the financial
statements referred to in clauses (a) and (b) above, a certificate of the chief
financial officer or treasurer, (i) certifying as to whether there exists a
Default or Event of Default on the date of such certificate, and if a Default or
an Event of Default then exists, specifying the details thereof and the action
which the Borrower has taken or proposes to take with respect thereto, (ii)
setting forth in reasonable detail calculations demonstrating compliance with
Article VI, (iii) setting forth whether the Borrower is in compliance with
Section 5.11 and (iv) stating whether any change in GAAP or the application
thereof has occurred since the date of the Borrower's audited financial
statements referred to in Section 4.4 or which have been previously delivered
hereunder and, if any change has occurred, specifying the effect of such change
on the financial statements accompanying such certificate; (d) concurrently with
the delivery of the financial statements referred to in clause (a) above, a
certificate of the accounting firm that reported on such financial statements
stating whether they obtained any knowledge during the course of their
examination of such financial statements of any Default or Event of Default
(which certificate may be limited to the extent required by accounting rules or
guidelines); (e) promptly after the same become publicly available, copies of
all periodic and other reports, proxy statements and other materials filed with
the Securities and Exchange Commission, or any Governmental Authority succeeding
to any or all functions of said Commission, or with any national securities
exchange, or distributed by the Borrower to its shareholders generally, as the
case may be; and (f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request. Section 5.2 Notices of Material Events. The
Borrower will furnish to the Administrative Agent and each Lender prompt written
notice of the following: (a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or proceeding by or before
any arbitrator or Governmental Authority against or, to the knowledge of the
Borrower, affecting the Borrower or any Subsidiary which, if adversely
determined, could reasonably be expected to result in a Material Adverse Effect;
(c) the occurrence of any event or any other development by which the Borrower
or any of its Subsidiaries (i) fails to comply with any Environmental Law or to
obtain, maintain or comply with any permit, license or other approval required
under any Environmental Law, (ii) becomes subject to any Environmental
Liability, (iii) receives notice of any claim with respect to any Environmental
Liability, or (iv) becomes aware of any basis for any Environmental Liability,
and in each of the preceding clauses, which individually or in the aggregate,
could reasonably be expected to result in a Material Adverse Effect; (d) the
occurrence of any ERISA Event that alone, or together with any other ERISA
Events that have occurred, could reasonably be expected to result in liability
of the Borrower and its Subsidiaries in an aggregate amount exceeding
$2,500,000; and (e) any other development that results in, or could reasonably
be expected to result in, a Material Adverse Effect. (f) Each notice delivered
under this Section shall be accompanied by a written statement of a Responsible
Officer setting forth the details of the event or development requiring such
notice and any action taken or proposed to be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will, and will cause
each of its Subsidiaries to, do or cause to be done all things necessary to
preserve, renew and maintain in full force and effect its legal existence and
its respective rights, licenses, permits, privileges, franchises, patents,
copyrights, trademarks and trade names material to the conduct of its business
and will continue to engage in the same business as presently conducted or such
other businesses that are reasonably related thereto; provided, however, that
nothing in this Section shall prohibit any merger, consolidation, liquidation or
dissolution permitted under Section 7.3. Section 5.4 Compliance with Laws, Etc.
The Borrower will, and will cause each of its Subsidiaries to, comply with all
laws, rules, regulations and requirements of any Governmental Authority
applicable to its business and properties, including without limitation, all
Environmental Laws, ERISA and OSHA, except where the failure to do so, either
individually or in the aggregate, could not reasonably be expected to result in
a Material Adverse Effect. Section 5.5 Payment of Obligations. The Borrower
will, and will cause each of its Subsidiaries to, pay and discharge at or before
maturity, all of its obligations and liabilities (including without limitation
all tax liabilities and claims that could result in a statutory Lien) before the
same shall become delinquent or in default, except where (i) (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings and
(b) the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP or (ii) the failure to make payment
thereof, when aggregated with all other such unpaid obligations and liabilities,
could not reasonably be expected to result in a Material Adverse Effect or (iii)
the failure to make payment thereof could not result in a statutory Lien.
Section 5.6 Books and Records. The Borrower will, and will cause each of its
Subsidiaries to, keep proper books of record and account in which full, true and
correct entries shall be made of all dealings and transactions in relation to
its business and activities to the extent necessary to prepare the consolidated
financial statements of Borrower in conformity with GAAP. Section 5.7
Visitation, Inspection, Etc. The Borrower will, and will cause each of its
Subsidiaries to, permit any representative of the Administrative Agent or any
Lender, to visit and inspect its properties, to examine its books and records
and to make copies and take extracts therefrom, and to discuss its affairs,
finances and accounts with any of its officers and with its independent
certified public accountants, all at such reasonable times and as often as the
Administrative Agent or any Lender may reasonably request after reasonable prior
notice to the Borrower; provided, however, if an Event of Default has occurred
and is continuing, no prior notice shall be required. Section 5.8 Maintenance of
Properties; Insurance. The Borrower will, and will cause each of its
Subsidiaries to, (a) keep and maintain good and marketable title to all property
subject to no Liens except Permitted Liens and keep and maintain all property
material to the conduct of its business in good working order and condition,
ordinary wear and tear except where the failure to do so, either individually or
it the aggregate, could not reasonably be expected to result in a Material
Adverse Effect and (b) maintain with financially sound and reputable insurance
companies, insurance with respect to its properties and business, and the
properties and business of its Subsidiaries, against loss or damage of the kinds
customarily insured against by companies in the same or similar businesses
operating in the same or similar locations. Section 5.9 Use of Proceeds and
Letters of Credit. The Borrower will use the proceeds of all Loans to refinance
existing Indebtedness on the Closing Date, and, thereafter, to fund future
permitted acquisitions, to finance working capital needs, to finance capital
expenditures and for other general corporate purposes of the Borrower and its
Subsidiaries. No part of the proceeds of any Loan will be used, whether directly
or indirectly, for any purpose that would violate any rule or regulation of the
Board of Governors of the Federal Reserve System, including Regulations T, U or
X. All Letters of Credit will be used for general corporate purposes. Section
5.10 Additional Subsidiaries. If any additional Material Subsidiary is acquired
or formed after the Closing Date, the Borrower will, within thirty (30) days
after such Material Subsidiary is acquired or formed, notify the Administrative
Agent and the Lenders thereof and will cause such Material Subsidiary to become
a Loan Party by executing agreements in the form of Annex I to Exhibit E and
Annex I to Exhibit F in form and substance satisfactory to the Administrative
Agent and the Required Lenders and will cause such Material Subsidiary to
deliver simultaneously therewith similar documents applicable to such Material
Subsidiary required under Section 3.1 as reasonably requested by the
Administrative Agent. Section 5.11 Additional Guaranties. If at the end of any
Fiscal Quarter of the Borrower: (a) the total assets of Subsidiaries that are
not Guarantors constitute more than ten percent (10%) of the total assets of the
Consolidated Companies, or (b) the Consolidated Net Income of Subsidiaries that
are not Guarantors constitute more than ten percent (10%) of the Consolidated
Net Income of the Consolidated Companies, then the Borrower shall (i) notify the
Administrative Agent thereof in the certificate delivered pursuant to Section
5.1(c) for such fiscal quarter and (ii) within 15 days thereafter, cause the
appropriate number of Subsidiaries to become Guarantors (by execution of a
joinder agreement to the Subsidiary Guaranty in form and substance satisfactory
to the Administrative Agent) such that the statements set forth in clauses (a)
and (b) above are not true.
Section 5.12 Post Closing Covenant. (a) No later than August 26, 2002,
the Borrower shall have delivered to the Administrative Agent
evidence satisfactory to the Administrative Agent in its sole
discretion that all real and personal property located in the
states of Delaware and New York which were subject to the
Existing Synthetic Lease and which were assigned to a Subsidiary
Loan Party on the Closing Date have been conveyed to the
Borrower or a Subsidiary Loan Party, together with evidence
satisfactory to the Administrative Agent that arrangements have
been made for any appropriate recording of such conveyances, and
payment of any filing and recording fees, costs, and expenses,
including any transfer taxes and other amounts payable in
respect thereof. (b) No later than September 30, 2002, the
Administrative Agent shall have received evidence that RT
Mortgages, LLC, RT Florida, LLC and A.R.T. Holding, LLC have
each merged into the Borrower.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender has
a Commitment hereunder or the principal of or interest on or any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
Section 6.1 Minimum Fixed Charge Coverage Ratio. The Consolidated Companies will
maintain, as of the last day of each Fiscal Quarter, a Fixed Charge Coverage
Ratio of not less than 2.50:1.00. Section 6.2 Maximum Adjusted Total Debt to
EBITDAR Ratio. The Consolidated Companies will maintain, as of the end of each
Fiscal Quarter, an Adjusted Total Debt to EBITDAR Ratio of not greater than
3.00:1.00. Section 6.3 Maximum Adjusted Total Debt to Adjusted Total Capital
Ratio. The Consolidated Companies will maintain, as of the end of each Fiscal
Quarter, an Adjusted Total Debt to Adjusted Total Capital Ratio of not greater
than 0.60:1.00.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender has
a Commitment hereunder or the principal of or interest on any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
Section 7.1 Indebtedness. The Borrower will not, and will not permit any of its
Subsidiaries to, create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on Schedule 7.1
and extensions, renewals and replacements of any such Indebtedness that do not
increase the outstanding principal amount thereof (immediately prior to giving
effect to such extension, renewal or replacement) or shorten the maturity or the
weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to finance the
acquisition, construction or improvement of any fixed or capital assets,
including Capital Lease Obligations and any Indebtedness assumed in connection
with the acquisition of any such assets secured by a Lien on any such assets
prior to the acquisition thereof; provided, that such Indebtedness is incurred
prior to or within 180 days after such acquisition or the completion of such
construction or improvements or extensions, renewals, and replacements of any
such Indebtedness that do not increase the outstanding principal amount thereof
(immediately prior to giving effect to such extension, renewal or replacement)
or shorten the maturity or the weighted average life thereof; provided, further,
that the aggregate principal amount of such Indebtedness does not exceed
$5,000,000; (d) Indebtedness of the Borrower owing to any Subsidiary and of any
Subsidiary owing to the Borrower or any other Subsidiary; provided, however,
that any such Indebtedness that is owed to a Subsidiary that is not a Subsidiary
Loan Party shall be subject to Section 7.4; (e) Guaranties by the Borrower of
Indebtedness of any Subsidiary and by any Subsidiary of Indebtedness of the
Borrower or any other Subsidiary; provided, however, that Guaranties by any Loan
Party of Indebtedness of any Subsidiary that is not a Subsidiary Loan Party
shall be subject to Section 7.4; (f) Subordinated Debt of the Borrower (but not
Subsidiaries of the Borrower); (g) Indebtedness in respect of obligations under
Hedging Agreements permitted by Section 7.10; and (h) other unsecured
Indebtedness of the Borrower and its Subsidiaries in an aggregate principal
amount at any time outstanding not to exceed 10% of Consolidated Net Worth of
the Borrower as calculated on the last day of Fiscal Quarter for which the
Borrower has delivered, or is required to have delivered, financial statements
to the Lenders pursuant to this Agreement. Section 7.2 Negative Pledge. The
Borrower will not, and will not permit any of its Subsidiaries to, create,
incur, assume or suffer to exist any Lien on any of its assets or property now
owned or hereafter acquired or, except: (a) Permitted Encumbrances; (b) any
Liens on any property or asset of the Borrower or any Subsidiary existing on the
Closing Date set forth on Schedule 7.2; provided, that such Lien shall not apply
to any other property or asset of the Borrower or any Subsidiary; (c) purchase
money Liens upon or in any fixed or capital assets to secure the purchase price
or the cost of construction or improvement of such fixed or capital assets or to
secure Indebtedness incurred solely for the purpose of financing the
acquisition, construction or improvement of such fixed or capital assets
(including Liens securing any Capital Lease Obligations); provided, however,
that (i) such Lien secures Indebtedness permitted by Section 7.1(c), (ii) such
Lien attaches to such asset concurrently or within 180 days after the
acquisition, improvement or completion of the construction thereof; (iii) such
Lien does not extend to any other asset; and (iv) the Indebtedness secured
thereby does not exceed the cost of acquiring, constructing or improving such
fixed or capital assets; (d) any Lien (i) existing on any asset of any Person at
the time such Person becomes a Subsidiary of the Borrower, (ii) existing on any
asset of any Person at the time such Person is merged with or into the Borrower
or any Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
however, that any such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which it secures on
the date that such Person becomes a Subsidiary or the date of such merger or the
date of such acquisition; and (e) extensions, renewals, or replacements of any
Lien referred to in paragraphs (a) through (d) of this Section; provided,
however, that the principal amount of the Indebtedness secured thereby is not
increased and that any such extension, renewal or replacement is limited to the
assets originally encumbered thereby. Section 7.3 Fundamental Changes. (a)
Except as permitted in Section 7.6, the Borrower will not, and will not permit
any Subsidiary to, merge into or consolidate into any other Person, or permit
any other Person to merge into or consolidate with it, or sell, lease, transfer
or otherwise dispose of (in a single transaction or a series of transactions)
all or substantially all of its assets (in each case, whether now owned or
hereafter acquired) or all or substantially all of the stock of any of its
Subsidiaries (in each case, whether now owned or hereafter acquired) or
liquidate or dissolve; provided, however, that if at the time thereof and
immediately after giving effect thereto, no Default or Event of Default shall
have occurred and be continuing (i) the Borrower or any Subsidiary may merge
with a Person if the Borrower (or such Subsidiary if the Borrower is not a party
to such merger) is the surviving Person, (ii) any Subsidiary may merge into
another Subsidiary; provided, however, that if any party to such merger is a
Subsidiary Loan Party, the Subsidiary Loan Party shall be the surviving Person,
(iii) any Subsidiary may sell, transfer, lease or otherwise dispose of all or
substantially all of its assets to the Borrower or to a Subsidiary Loan Party
and (iv) any Subsidiary may liquidate or dissolve into a Subsidiary Loan Party
or into the Borrower if the Borrower determines in good faith that such
liquidation or dissolution is in the best interests of the Borrower and is not
materially disadvantageous to the Lenders; provided, however, that any such
merger involving a Person that is not a wholly owned Subsidiary immediately
prior to such merger shall not be permitted unless also permitted by Section
7.4. (b) The Borrower will not, and will not permit any of its Subsidiaries to,
engage in any business other than businesses of the type conducted by the
Borrower and its Subsidiaries on the date hereof and businesses reasonably
related thereto. Section 7.4 Investments, Loans, Etc. The Borrower will not, and
will not permit any of its Subsidiaries to, purchase, hold or acquire (including
pursuant to any merger with any Person that was not a wholly owned Subsidiary
prior to such merger), any common stock, evidence of indebtedness or other
securities (including any option, warrant, or other right to acquire any of the
foregoing) of, make or permit to exist any loans or advances to, Guaranty any
obligations of, or make or permit to exist any investment or any other interest
in, any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except: (a) Investments (other than Permitted
Investments) existing on the date hereof and set forth on Schedule 7.4
(including Investments in Subsidiaries); (b) Permitted Investments; (c)
Guaranties constituting Indebtedness permitted by Section 7.1; (d) Investments
made by any Loan Party in or to any other Loan Party; (e) loans or advances to
employees, officers or directors of the Borrower or any Subsidiary in the
ordinary course of business for travel, relocation and related expenses; (f)
Hedging Agreements permitted by Section 7.10; (g) promissory notes issued to the
Borrower as a part of the purchase price in connection with the sale of American
Caf, Tia's or L&N Seafood; (h) Investments in franchise operators through the
Franchise Partner Program; (i) Investments received in settlement of
Indebtedness created in the ordinary course of business; (j) Investments in the
stock or other assets of any other Person that is engaged in a business
permitted by Section 7.3(b) that, as a result of such Investment, becomes a
Subsidiary of Borrower (other than Hostile Acquisitions); provided, however,
that the aggregate purchase price of Investments made pursuant to this
subsection (j) shall not exceed at any time ten percent (10%) of the
Consolidated Net Worth of the Borrower as calculated on the last day of Fiscal
Quarter for which the Borrower has delivered, or is required to have delivered,
financial statements to the Lenders pursuant to this Agreement; and (k)
Investments in common stock of the Borrower to the extent permitted under
Section 7.5. Section 7.5 Restricted Payments. The Borrower will not, and will
not permit its Subsidiaries to, (x) declare or make, or agree to pay or make,
directly or indirectly, any dividend on any class of its stock, or (y) make any
payment on account of, or set apart assets for a sinking or other analogous fund
for, the purchase, redemption, retirement, defeasance or other acquisition of,
any shares of common stock or Indebtedness subordinated to the Obligations of
the Borrower or any options, warrants, or other rights to purchase such common
stock or such Indebtedness, whether now or hereafter outstanding (each, a
"Restricted Payment"), except for (i) dividends payable by the Borrower solely
in shares of any class of its common stock, (ii) Restricted Payments made by any
Subsidiary to the Borrower or to another Loan Party and (iii) cash dividends
paid on, and cash redemptions of, the common stock of the Borrower; provided,
however, that no Event of Default has occurred and is continuing before or after
giving effect to the payment of such dividend or redemption. Section 7.6 Sale of
Assets. The Borrower will not, and will not permit any of its Subsidiaries to,
convey, sell, lease, assign, transfer or otherwise dispose of, any of its
assets, business or property, whether now owned or hereafter acquired, or, in
the case of any Subsidiary, issue or sell any shares of such Subsidiary's common
stock to any Person other than the Borrower or any wholly owned Subsidiary of
the Borrower or a Subsidiary Loan Party (or to qualify directors if required by
applicable law), except: (a) the sale or other disposition for fair market value
of obsolete or worn out property or other property not necessary for operations,
disposed of in the ordinary course of business; (b) the sale of inventory and
Permitted Investments in the ordinary course of business; (c) the sale, lease or
transfer of assets of any Subsidiary to the Borrower or any other Loan Party;
(d) the sale of any assets pertaining to Ruby Tuesday units pursuant to the
Borrower's Franchise Partner Program; (e) any other sale of the Borrower's
assets with an aggregate book value, when aggregated with all other such sales
since the Closing Date, not exceeding 7.5% of the aggregate book value of all of
the Borrower's assets on the date of such transfer; provided, however, that no
Default or Event of Default has occurred and is continuing or would occur as a
result of such transaction. Section 7.7 Transactions with Affiliates. The
Borrower will not, and will not permit any of its Subsidiaries to, sell, lease
or otherwise transfer any property or assets to, or purchase, lease or otherwise
acquire any property or assets from, or otherwise engage in any other
transactions with, any of its Affiliates, except (a) in the ordinary course of
business at prices and on terms and conditions not less favorable to the
Borrower or such Subsidiary than could be obtained on an arm's-length basis from
unrelated third parties, (b) transactions between or among the Borrower and its
direct or indirect wholly owned Subsidiaries not involving any other Affiliates
and (c) any Restricted Payment permitted by Section 7.5. Section 7.8 Restrictive
Agreements. The Borrower will not, and will not permit any Subsidiary to,
directly or indirectly, enter into, incur or permit to exist any agreement that
prohibits, restricts or imposes any condition upon (a) the ability of the
Borrower or any Subsidiary to create, incur or permit any Lien upon any of its
assets or properties, whether now owned or hereafter acquired, or (b) the
ability of any Subsidiary to pay dividends or other distributions with respect
to its common stock, to make or repay loans or advances to the Borrower or any
other Subsidiary, to Guaranty Indebtedness of the Borrower or any other
Subsidiary or to transfer any of its property or assets to the Borrower or any
Subsidiary of the Borrower; provided, however, that (i) the foregoing shall not
apply to restrictions or conditions imposed by law or by this Agreement or any
other Loan Document, (ii) the foregoing shall not apply to customary
restrictions and conditions contained in agreements relating to the sale of a
Subsidiary pending such sale, provided such restrictions and conditions apply
only to the Subsidiary that is sold and such sale is permitted hereunder, and
(iii) clause (a) shall not apply to restrictions or conditions imposed by any
agreement relating to secured Indebtedness permitted under Section 7.1(c) of
this Agreement if such restrictions and conditions apply only to the property or
assets securing such Indebtedness. Section 7.9 Sale and Leaseback Transactions.
The Borrower will not, and will not permit any of the Subsidiaries to, enter
into any arrangement, directly or indirectly, whereby it shall sell or transfer
any property, real or personal, used or useful in its business, whether now
owned or hereinafter acquired, and thereafter rent or lease such property or
other property that it intends to use for substantially the same purpose or
purposes as the property sold or transferred (such arrangement referred to as a
"Sale Leaseback"). Notwithstanding the preceding limitation, Borrower may enter
into any Sale Leaseback provided the aggregate amount of such transactions does
not exceed $50,000,000. Section 7.10 Hedging Agreements. The Borrower will not,
and will not permit any of the Subsidiaries to, enter into any Hedging
Agreement, other than Hedging Agreements entered into in the ordinary course of
business to hedge or mitigate risks to which the Borrower or any Subsidiary is
exposed in the conduct of its business or the management of its liabilities.
Solely for the avoidance of doubt, the Borrower acknowledges that a Hedging
Agreement entered into for speculative purposes or of a speculative nature
(which shall be deemed to include any Hedging Agreement under which the Borrower
or any of the Subsidiaries is or may become obliged to make any payment (i) in
connection with the purchase by any third party of any common stock or any
Indebtedness or (ii) as a result of changes in the market value of any common
stock or any Indebtedness) is not a Hedging Agreement entered into in the
ordinary course of business to hedge or mitigate risks. Section 7.11 Amendment
to Material Documents. The Borrower will not, and will not permit any Subsidiary
to, amend, modify or waive any of its rights in a manner materially adverse to
the Borrower's or Subsidiary's duties or the Lenders' rights under this
Agreement under (a) its certificate of incorporation, bylaws or other
organizational documents or (b) any contract, agreement, document, or instrument
to which the Borrower or Subsidiary is a party. Section 7.12 Accounting Changes.
The Borrower will not, and will not permit any Subsidiary to, make any
significant change in accounting treatment or reporting practices, except as
required by GAAP or approved by the Borrower's independent accountants, or
change the fiscal year of the Borrower or of any Subsidiary, except to change
the fiscal year of a Subsidiary to conform its fiscal year to that of the
Borrower and except that Borrower or any Subsidiary may, upon 30 days prior
written notice to the Administrative Agent, change its fiscal year end to the
Tuesday closest to any calendar quarter end. Section 7.13 ERISA. The Borrower
will not, and will not permit any Subsidiary to engage in any transaction in
connection with which the Borrower or such Subsidiary could reasonably be
expected to be subject to a civil penalty assessed pursuant to ERISA which would
have a Material Adverse Effect on the Borrower or such Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1 Events of Default. If any of the following events (each an "Event
of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan or of any
reimbursement obligation in respect of any LC Disbursement when and as the same
shall become due and payable, whether at the due date thereof or at a date fixed
for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or any fee or
any other amount (other than an amount payable under clause (a) of this Article)
payable under this Agreement or any other Loan Document, when and as the same
shall become due and payable, and such failure shall continue unremedied for a
period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or on behalf of
the Borrower or any Subsidiary in or in connection with this Agreement or any
other Loan Document (including the Exhibits and Schedules attached thereto) and
any amendments or modifications hereof or waivers hereunder, or in any
certificate, report, financial statement or other document submitted to the
Administrative Agent or the Lenders by any Loan Party or any representative of
any Loan Party pursuant to or in connection with this Agreement or any other
Loan Document shall prove to be incorrect in any material respect when made or
deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant or agreement
contained in Sections 5.1, 5.2, 5.3 (with respect to the Borrower's existence),
5.7, 5.9 or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any covenant or
agreement contained in this Agreement or any other Loan Document (other than
those referred to in clauses (a), (b) and (d) above), and such failure shall
remain unremedied for 30 days after the earlier of (i) any officer of the
Borrower becomes aware of such failure, or (ii) written notice thereof shall
have been given to the Borrower by the Administrative Agent or any Lender; or
(f) the Borrower or any Subsidiary (whether as primary obligor or as guarantor
or other surety) shall fail to pay any principal of or premium or interest on
any Material Indebtedness that is outstanding, when and as the same shall become
due and payable (whether at scheduled maturity, required prepayment,
acceleration, demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or instrument
evidencing such Material Indebtedness; or any other event shall occur or
condition shall exist under any agreement or instrument relating to such
Material Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Material Indebtedness; or any such Material Indebtedness shall be declared to be
due and payable; or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or any offer to prepay, redeem, purchase or defease such Material Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof;
or (g) the Borrower or any Material Subsidiary shall (i) commence a voluntary
case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Material Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or (h) an involuntary proceeding
shall be commenced or an involuntary petition shall be filed seeking (i)
liquidation, reorganization or other relief in respect of the Borrower or any
Material Subsidiary or its debts, or any substantial part of its assets, under
any federal, state or foreign bankruptcy, insolvency or other similar law now or
hereafter in effect or (ii) the appointment of a custodian, trustee, receiver,
liquidator or other similar official for the Borrower or any Material Subsidiary
or for a substantial part of its assets, and in any such case, such proceeding
or petition shall remain undismissed for a period of 60 days or an order or
decree approving or ordering any of the foregoing shall be entered; or (i) the
Borrower or any Material Subsidiary shall become unable to pay, shall admit in
writing its inability to pay, or shall fail to pay, its debts as they become
due; or (j) an ERISA Event shall have occurred that, in the opinion of the
Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $2,500,000; or (k) any
judgment or order for the payment of money in excess of $2,500,000 in the
aggregate shall be rendered against the Borrower or any Subsidiary, and either
(i) enforcement proceedings shall have been commenced by any creditor upon such
judgment or order or (ii) there shall be a period of 30 consecutive days during
which a stay of enforcement of such judgment or order, by reason of a pending
appeal or otherwise, shall not be in effect; or (l) any nonmonetary judgment or
order shall be rendered against the Borrower or any Subsidiary that could
reasonably be expected to have a Material Adverse Effect, and there shall be a
period of 30 consecutive days during which a stay of enforcement of such
judgment or order, by reason of a pending appeal or otherwise, shall not be in
effect; or (m) a Change in Control shall occur or exist; or (n) any provision of
any Subsidiary Guaranty Agreement shall for any reason cease to be valid and
binding on, or enforceable against, any Subsidiary Loan Party, or any Subsidiary
Loan Party shall so state in writing, or any Subsidiary Loan Party shall seek to
terminate its Subsidiary Guaranty Agreement (except to the extent that Tia's is
automatically released from the Subsidiary Guaranty Agreement pursuant to the
terms thereof); then, and in every such event (other than an event with respect
to the Borrower described in clause (g) or (h) of this Section) and at any time
thereafter during the continuance of such event, the Administrative Agent may,
and upon the written request of the Required Lenders shall, by notice to the
Borrower, take any or all of the following actions, at the same or different
times: (i) terminate the Commitments, whereupon the Commitment of each Lender
shall terminate immediately; (ii) declare the principal of and any accrued
interest on the Loans, and all other Obligations owing hereunder, to be,
whereupon the same shall become due and payable immediately, without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower; (iii) exercise all remedies contained in any
other Loan Document; and (iv) exercise any other remedies available at law or in
equity; and that, if an Event of Default specified in either clause (g) or (h)
shall occur, the Commitments shall automatically terminate and the principal of
the Loans then outstanding, together with accrued interest thereon, and all
fees, and all other Obligations shall automatically become due and payable,
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent. Each Lender irrevocably
appoints SunTrust Bank as the Administrative Agent and authorizes it to take
such actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent under this Agreement and the other Loan Documents, together
with all such actions and powers that are reasonably incidental thereto. The
Administrative Agent may perform any of its duties hereunder by or through any
one or more sub-agents appointed by the Administrative Agent. The Administrative
Agent and any such sub-agent may perform any and all of its duties and exercise
its rights and powers through their respective Related Parties. The exculpatory
provisions set forth in this Article shall apply to any such sub-agent and the
Related Parties of the Administrative Agent and any such sub-agent and shall
apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative
Agent. (b) The Issuing Bank shall act on behalf of the Lenders with respect to
any Letters of Credit issued by it and the documents associated therewith until
such time and except for so long as the Administrative Agent may agree at the
request of the Required Lenders to act for the Issuing Bank with respect
thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank. Section 9.2 Nature of Duties of Administrative Agent. The Administrative
Agent shall not have any duties or obligations except those expressly set forth
in this Agreement and the other Loan Documents. Without limiting the generality
of the foregoing, (a) the Administrative Agent shall not be subject to any
fiduciary or other implied duties, regardless of whether a Default or an Event
of Default has occurred and is continuing, (b) the Administrative Agent shall
not have any duty to take any discretionary action or exercise any discretionary
powers, except those discretionary rights and powers expressly contemplated by
the Loan Documents that the Administrative Agent is required to exercise in
writing by the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary under the circumstances as provided in Section
10.2), and (c) except as expressly set forth in the Loan Documents, the
Administrative Agent shall not have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the Borrower or
any of its Subsidiaries that is communicated to or obtained by the
Administrative Agent or any of its Affiliates in any capacity. The
Administrative Agent shall not be liable for any action taken or not taken by it
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative Agent shall not be responsible for or have any duty to
ascertain or inquire into (i) any statement, warranty or representation made in
or in connection with any Loan Document, (ii) the contents of any certificate,
report or other document delivered hereunder or thereunder or in connection
herewith or therewith, (iii) the performance or observance of any of the
covenants, agreements, or other terms and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Section 9.3 Lack of Reliance on the Administrative Agent. Each of the Lenders,
the Swingline Lender and the Issuing Bank acknowledges that it has,
independently and without reliance upon the Administrative Agent or any other
Lender and based on such documents and information as it has deemed appropriate,
made its own credit analysis and decision to enter into this Agreement. Each of
the Lenders, the Swingline Lender and the Issuing Bank also acknowledges that it
will, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, continue to make its own decisions in taking or not taking of any
action under or based on this Agreement, any related agreement or any document
furnished hereunder or thereunder. Section 9.4 Certain Rights of the
Administrative Agent. If the Administrative Agent shall request instructions
from the Required Lenders with respect to any action or actions (including the
failure to act) in connection with this Agreement, the Administrative Agent
shall be entitled to refrain from such act or taking such act, unless and until
it shall have received instructions from such Required Lenders; and the
Administrative Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender shall have any right of
action whatsoever against the Administrative Agent as a result of the
Administrative Agent acting or refraining from acting hereunder in accordance
with the instructions of the Required Lenders where required by the terms of
this Agreement. Section 9.5 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon, and shall not incur any liability for
relying upon, any notice, request, certificate, consent, statement, instrument,
document or other writing believed by it to be genuine and to have been signed,
sent or made by the proper Person. The Administrative Agent may also rely upon
any statement made to it orally or by telephone and believed by it to be made by
the proper Person and shall not incur any liability for relying thereon. The
Administrative Agent may consult with legal counsel (including counsel for the
Borrower), independent public accountants and other experts selected by it and
shall not be liable for any action taken or not taken by it in accordance with
the advice of such counsel, accountants or experts. Section 9.6 The
Administrative Agent in its Individual Capacity. The bank serving as the
Administrative Agent shall have the same rights and powers under this Agreement
and any other Loan Document in its capacity as a Lender as any other Lender and
may exercise or refrain from exercising the same as though it were not the
Administrative Agent; and the terms "Lenders", "Required Lenders", "holders of
Notes", or any similar terms shall, unless the context clearly otherwise
indicates, include the Administrative Agent in its individual capacity. The bank
acting as the Administrative Agent and its Affiliates may accept deposits from,
lend money to, and generally engage in any kind of business with the Borrower or
any Subsidiary or Affiliate of the Borrower as if it were not the Administrative
Agent hereunder. Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving notice thereof
to the Lenders and the Borrower. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Administrative Agent,
subject to the approval by the Borrower provided that no Default or Event of
Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof
or a bank which maintains an office in the United States, having a combined
capital and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the Administrative Agent hereunder
by a successor, 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 Administrative Agent shall be
discharged from its duties and obligations under this Agreement and the other
Loan Documents. If within 45 days after written notice is given of the retiring
Administrative Agent's resignation under this Section 9.7 no successor
Administrative Agent shall have been appointed and shall have accepted such
appointment, then on such 45th day (i) the retiring Administrative Agent's
resignation shall become effective, (ii) the retiring Administrative Agent shall
thereupon be discharged from its duties and obligations under the Loan Documents
and (iii) the Required Lenders shall thereafter perform all duties of the
retiring Administrative Agent under the Loan Documents until such time as the
Required Lenders appoint a successor Administrative Agent as provided above.
After any retiring Administrative Agent's resignation hereunder, the provisions
of this Article IX shall continue in effect for the benefit of such retiring
Administrative Agent and its representatives and agents in respect of any
actions taken or not taken by any of them while it was serving as the
Administrative Agent. Section 9.8 Authorization to Execute other Loan Documents.
Each Lender hereby authorizes the Administrative Agent to execute on behalf of
all Lenders all Loan Documents other than this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of notices and other communications expressly
permitted to be given by telephone, all notices and other communications to any
party herein to be effective shall be in writing and shall be delivered by hand
or overnight courier service, mailed by certified or registered mail or sent by
telecopy, as follows:
To the Borrower: Ruby Tuesday, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attention: Xx. Xxxxxxxxxx Xxxxx
Telecopy: 000-000-0000
To the Administrative Agent: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. E./
2nd Floor
Atlanta, Georgia 30308
Attention: Xx. Xxxxx Xxxxx
Telecopy Number: 000-000-0000
With a copy to: SunTrust Capital Markets, Inc.
000 Xxxxxxxxx Xxxxxx, X. E./
24th Floor
Atlanta, Georgia 30308
Attention: Xx. Xxx X'Xxxxx
Telecopy Number: 000-000-0000
To the Issuing Bank: SunTrust Bank
00 Xxxx Xxxxx, X. E./Mail
Code 3706
Xxxxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telecopy Number: (000) 000-0000
To the Swingline Lender: SunTrust Bank
000 Xxxxxxxxx Xxxxxx, X. E./
2nd Floor
Atlanta, Georgia 30308
Attention: Xx. Xxxxx Xxxxx
Telecopy Number: 000-000-0000
To any other Lender: the address set forth in the
Administrative Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Lender shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders herein to receive
certain notices by telephone or facsimile is solely for the convenience and at
the request of the Borrower. The Administrative Agent and the Lenders shall be
entitled to rely on the authority of any Person purporting to be a Person
authorized by the Borrower to give such notice and the Administrative Agent and
Lenders shall not have any liability to the Borrower or other Person on account
of any action taken or not taken by the Administrative Agent or the Lenders in
reliance upon such telephonic or facsimile notice. The obligation of the
Borrower to repay the Loans and all other Obligations hereunder shall not be
affected in any way or to any extent by any failure of the Administrative Agent
and the Lenders to receive written confirmation of any telephonic or facsimile
notice or the receipt by the Administrative Agent and the Lenders of a
confirmation which is at variance with the terms understood by the
Administrative Agent and the Lenders to be contained in any such telephonic or
facsimile notice. Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the Issuing Bank or any
Lender in exercising any right or power hereunder or any other Loan Document,
and no course of dealing between the Borrower and the Administrative Agent or
any Lender, shall operate as a waiver thereof, nor shall any single or partial
exercise of any such right or power or any abandonment or discontinuance of
steps to enforce such right or power, preclude any other or further exercise
thereof or the exercise of any other right or power hereunder or thereunder. The
rights and remedies of the Administrative Agent, the Issuing Bank and the
Lenders hereunder and under the other Loan Documents are cumulative and are not
exclusive of any rights or remedies provided by law. No waiver of any provision
of this Agreement or any other Loan Document or consent to any departure by the
Borrower therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) of this Section, and then such waiver or consent
shall be effective only in the specific instance and for the purpose for which
given. Without limiting the generality of the foregoing, the making of a Loan or
the issuance of a Letter of Credit shall not be construed as a waiver of any
Default or Event of Default, regardless of whether the Administrative Agent, any
Lender or the Issuing Bank may have had notice or knowledge of such Default or
Event of Default at the time. (b) No amendment or waiver of any provision of
this Agreement or the other Loan Documents, nor consent to any departure by the
Borrower therefrom, shall in any event be effective unless the same shall be in
writing and signed by the Borrower and the Required Lenders or the Borrower and
the Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment or waiver
shall: (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.21(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement without the written
consent of each Lender; (vii) waive, amend, modify or consent to any change of
the terms of Section 2.12 without the written consent of each Term Loan Lender,
or (viii) release all or substantially all collateral (if any) securing any of
the Obligations, without the written consent of each Lender; provided further,
that no such agreement shall amend, modify or otherwise affect the rights,
duties or obligations of the Administrative Agent, the Swingline Lender or the
Issuing Bank without the prior written consent of such Person.
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket costs and expenses
of the Administrative Agent and its Affiliates, including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent and its
Affiliates actually incurred, in connection with the syndication of the credit
facilities provided for herein, the preparation and administration of the Loan
Documents and any amendments, modifications or waivers thereof (whether or not
the transactions contemplated in this Agreement or any other Loan Document shall
be consummated), (ii) all reasonable out-of-pocket expenses incurred by the
Issuing Bank in connection with the issuance, amendment, renewal or extension of
any Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket costs and expenses (including, without limitation, the reasonable
fees, charges and disbursements of outside counsel, fees of inside counsel,
accountants, consultants, and other similar professional fees) actually incurred
by the Administrative Agent, the Issuing Bank or any Lender in connection with
the enforcement or protection of its rights in connection with this Agreement,
including its rights under this Section, or in connection with the Loans made or
any Letters of Credit issued hereunder, including all such out-of-pocket
expenses incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit. (b) The Borrower shall indemnify the
Administrative Agent, the Issuing Bank and each Lender, and each Related Party
of any of the foregoing (each, an "Indemnitee") against, and hold each of them
harmless from, any and all costs, losses, liabilities, claims, damages and
related expenses, including the fees, charges and disbursements of any counsel
for any Indemnitee, which may be incurred by or asserted against any Indemnitee
arising out of, in connection with or as a result of (i) the execution or
delivery of this Agreement or any other agreement or instrument contemplated
hereby, the performance by the parties hereto of their respective obligations
hereunder or the consummation of any of the transactions contemplated hereby,
(ii) any Loan or Letter of Credit or any actual or proposed use of the proceeds
therefrom (including any refusal by the Issuing Bank to honor a demand for
payment under a Letter of Credit if the documents presented in connection with
such demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials on or
from any property owned by the Borrower or any Subsidiary or any Environmental
Liability related in any way to the Borrower or any Subsidiary or (iv) any
actual or prospective claim, litigation, investigation or proceeding relating to
any of the foregoing, whether based on contract, tort or any other theory and
regardless of whether any Indemnitee is a party thereto; provided, that the
Borrower shall not be obligated to indemnify any Indemnitee for any of the
foregoing arising out of such Indemnitee's gross negligence or willful
misconduct, as determined by a court of competent jurisdiction in a final and
nonappealable judgment; (c) The Borrower shall pay, and hold the Administrative
Agent and each of the Lenders harmless from and against, any and all present and
future stamp, documentary, and other similar taxes with respect to this
Agreement and any other Loan Documents, any collateral described therein, or any
payments due thereunder, and save the Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount required to be
paid to the Administrative Agent, the Issuing Bank or the Swingline Lender under
clauses (a), (b) or (c) hereof, each Lender severally agrees to pay to the
Administrative Agent, the Issuing Bank or the Swingline Lender, as the case may
be, such Lender's Pro Rata Share (determined as of the time that the
unreimbursed expense or indemnity payment is sought) of such unpaid amount;
provided, however, that the unreimbursed expense or indemnified payment, claim,
damage, liability or related expense, as the case may be, was incurred by or
asserted against the Administrative Agent, the Issuing Bank or the Swingline
Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower shall not
assert, and hereby waives, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as opposed
to actual or direct damages) arising out of, in connection with or as a result
of, this Agreement or any agreement or instrument contemplated hereby, the
transactions contemplated therein, any Loan or any Letter of Credit or the use
of proceeds thereof.
(f) All amounts due under this Section shall be payable promptly after
written demand therefor.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns
permitted hereby, except that the Borrower may not assign or otherwise transfer
any of its rights or obligations hereunder without the prior written consent of
each Lender (and any attempted assignment or transfer by the Borrower without
such consent shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties
hereto, their respective successors and assigns permitted hereby and, to the
extent expressly contemplated hereby, the Related Parties of each of the
Administrative Agent and the Lenders) any legal or equitable right, remedy or
claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees all or a portion of
its rights and obligations under this Agreement (including all or a portion of
its Commitment and the Loans at the time owing to it); provided that (i) except
in the case of an assignment of the entire remaining amount of the assigning
Lender's Commitment and the Loans at the time owing to it or in the case of an
assignment to a Lender, an Affiliate of a Lender or an Approved Fund with
respect to a Lender, the aggregate amount of the Commitment (which for this
purpose includes Loans outstanding thereunder) of the assigning Lender subject
to each such assignment (determined as of the date the Assignment and Acceptance
with respect to such assignment is delivered to the Administrative Agent) shall
not be less than $1,000,000, in the case of any assignment of a Revolving Loan,
unless each of the Administrative Agent and, so long as no Event of Default has
occurred and is continuing, the Borrower otherwise consent (each such consent
not to be unreasonably withheld or delayed), (ii) each partial assignment shall
be made as an assignment of a proportionate part of all the assigning Lender's
rights and obligations under this Agreement with respect to the Loan or the
Commitment assigned, except that this clause (ii) shall not prohibit any Lender
from assigning all or a portion of its rights and obligations among separate
Commitments on a non-pro rata basis, and (iii) the parties to each assignment
shall execute and deliver to the Administrative Agent an Assignment and
Acceptance, together with a processing and recordation fee of $1,000, and the
Eligible Assignee, if it shall not be a Lender, shall deliver to the
Administrative Agent an Administrative Questionnaire. Subject to acceptance and
recording thereof by the Administrative Agent pursuant to paragraph (c) of this
Section, from and after the effective date specified in each Assignment and
Acceptance, the Eligible Assignee thereunder shall be a party hereto and, to the
extent of the interest assigned by such Assignment and Acceptance, have the
rights and obligations of a Lender under this Agreement, and the assigning
Lender thereunder shall, to the extent of the interest assigned by such
Assignment and Acceptance, be released from its obligations under this Agreement
(and, in the case of an Assignment and Acceptance covering all of the assigning
Lender's rights and obligations under this Agreement, such Lender shall cease to
be a party hereto but shall continue to be entitled to the benefits of Sections
2.18, 2.19, 2.20 and 10.3. Any assignment or transfer by a Lender of rights or
obligations under this Agreement that does not comply with this paragraph shall
be treated for purposes of this Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with paragraph (d) of
this Section. (c) The Administrative Agent, acting solely for this purpose as an
agent of the Borrower, shall maintain at one of its offices in Atlanta, Georgia
a copy of each Assignment and Acceptance delivered to it and a register for the
recordation of the names and addresses of the Lenders, and the Commitments of,
and principal amount of the Loans owing to, each Lender 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 Lenders may treat
each Person whose name is recorded in the Register pursuant to the terms hereof
as a Lender hereunder for all purposes of this Agreement, notwithstanding notice
to the contrary. The Register shall be available for inspection by the Borrower
and any Lender, at any reasonable time and from time to time upon reasonable
prior notice. (d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Lender or the Issuing Bank
sell participations to one or more banks or other entities (a "Participant") in
all or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (iii) the Borrower, the
Administrative Agent, the Swingline Lender, the Issuing Bank and the other
Lenders shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Agreement. Any
agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this
Agreement and to approve any amendment, modification or waiver of any provision
of this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any
amendment, modification or waiver with respect to the following to the extent
affecting such Participant: (i) increase the Commitment of any Lender without
the written consent of such Lender, (ii) reduce the principal amount of any Loan
or LC Disbursement or reduce the rate of interest thereon, or reduce any fees
payable hereunder, without the written consent of each Lender affected thereby,
(iii) postpone the date fixed for any payment of any principal of, or interest
on, any Loan or LC Disbursement or interest thereon or any fees hereunder or
reduce the amount of, waive or excuse any such payment, or postpone the
scheduled date for the termination or reduction of any Commitment, without the
written consent of each Lender affected thereby, (iv) change Section 2.21(b) or
(c) in a manner that would alter the pro rata sharing of payments required
thereby , without the written consent of each Lender, (v) change any of the
provisions of this Section or the definition of "Required Lenders" or any other
provision hereof specifying the number or percentage of Lenders which are
required to waive, amend or modify any rights hereunder or make any
determination or grant any consent hereunder, without the consent of each
Lender; (vi) release any guarantor or limit the liability of any such guarantor
under any guaranty agreement without the written consent of each Lender except
to the extent such release is expressly provided under the terms of the Guaranty
Agreement; or (vii) release all or substantially all collateral (if any)
securing any of the Obligations. Subject to paragraph (e) of this Section, the
Borrower agrees that each Participant shall be entitled to the benefits of
Sections 2.18, 2.19, and 2.20 to the same extent as if it were a Lender and had
acquired its interest by assignment pursuant to paragraph (b) of this Section.
To the extent permitted by law, each Participant also shall be entitled to the
benefits of Section 10.7 as though it were a Lender, provided such Participant
agrees to be subject to Section 10.7 as though it were a Lender.
(e) A Participant shall not be entitled to receive any greater payment under
Section 2.18 and Section 2.20 than the applicable Lender would have been
entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the
Borrower's prior written consent. A Participant that would be a Foreign Lender
if it were a Lender shall not be entitled to the benefits of Section 2.20 unless
the Borrower is notified of the participation sold to such Participant and such
Participant agrees, for the benefit of the Borrower, to comply with Section
2.20(e) as though it were a Lender. (f) Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under this
Agreement to secure obligations of such Lender, including without limitation any
pledge or assignment to secure obligations to a Federal Reserve Bank; provided
that no such pledge or assignment of a security interest shall release a Lender
from any of its obligations hereunder or substitute any such pledgee or assignee
for such Lender as a party hereto. Section 10.5 Governing Law; Jurisdiction;
Consent to Service of Process.
(a) This Agreement and the other Loan Documents shall be construed in
accordance with and be governed by the law (without giving effect to the
conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally submits, for itself and
its property, to the non-exclusive jurisdiction of the United States District
Court of the Northern District of Georgia, and of any state court of the State
of Georgia located in Xxxxxx County and any appellate court from any thereof, in
any action or proceeding arising out of or relating to this Agreement or any
other Loan Document or the transactions contemplated hereby or thereby, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in such Georgia state
court or, to the extent permitted by applicable law, such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement or
any other Loan Document shall affect any right that the Administrative Agent,
the Issuing Bank or any Lender may otherwise have to bring any action or
proceeding relating to this Agreement or any other Loan Document against the
Borrower or its properties in the courts of any jurisdiction. (c) The Borrower
irrevocably and unconditionally waives any objection which it may now or
hereafter have to the laying of venue of any such suit, action or proceeding
described in paragraph (b) of this Section and brought in any court referred to
in paragraph (b) of this Section. Each of the parties hereto irrevocably waives,
to the fullest extent permitted by applicable law, the defense of an
inconvenient forum to the maintenance of such action or proceeding in any such
court.
(d) Each party to this Agreement irrevocably consents to the service of
process in the manner provided for notices in Section 10.1. Nothing in this
Agreement or in any other Loan Document will affect the right of any party
hereto to serve process in any other manner permitted by law.
Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY
JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR
THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH PARTY HERETO
(A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS
REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, AND (B) ACKNOWLEDGES
THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS
AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law and not by way of limitation of any such rights, each
Lender and the Issuing Bank shall have the right, at any time or from time to
time upon the occurrence and during the continuance of an Event of Default,
without prior notice to the Borrower, any such notice being expressly waived by
the Borrower to the extent permitted by applicable law, to set off and apply
against all deposits (general or special, time or demand, provisional or final)
of the Borrower at any time held or other obligations at any time owing by such
Lender and the Issuing Bank to or for the credit or the account of the Loan
Parties against any and all Obligations held by such Lender or the Issuing Bank,
as the case may be, irrespective of whether such Lender or the Issuing Bank
shall have made demand hereunder and although such Obligations may be unmatured.
Each Lender and the Issuing Bank agree promptly to notify the Administrative
Agent and the Loan Parties after any such set-off and any application made by
such Lender and the Issuing Bank, as the case may be; provided, however, that
the failure to give such notice shall not affect the validity of such set-off
and application. Section 10.8 Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9 Survival. All covenants, agreements, representations and warranties
made by the Borrower herein and in the certificates or other instruments
delivered in connection with or pursuant to this Agreement shall be considered
to have been relied upon by the other parties hereto and shall survive the
execution and delivery of this Agreement and the making of any Loans and
issuance of any Letters of Credit, regardless of any investigation made by any
such other party or on its behalf and notwithstanding that the Administrative
Agent, the Issuing Bank or any Lender may have had notice or knowledge of any
Default or incorrect representation or warranty at the time any credit is
extended hereunder, and shall continue in full force and effect as long as the
principal of or any accrued interest on any Loan or any fee or any other amount
payable under this Agreement is outstanding and unpaid or any Letter of Credit
is outstanding and so long as the Commitments have not expired or terminated.
The provisions of Sections 2.18, 2.19, 2.20, and 10.3 and Article IX shall
survive and remain in full force and effect regardless of the consummation of
the transactions contemplated hereby, the repayment of the Loans, the expiration
or termination of the Letters of Credit and the Commitments or the termination
of this Agreement or any provision hereof. All representations and warranties
made herein, in the certificates, reports, notices, and other documents
delivered pursuant to this Agreement shall survive the execution and delivery of
this Agreement and the other Loan Documents, and the making of the Loans and the
issuance of the Letters of Credit. Section 10.10 Severability. Any provision of
this Agreement or any other Loan Document held to be illegal, invalid or
unenforceable in any jurisdiction, shall, as to such jurisdiction, be
ineffective to the extent of such illegality, invalidity or unenforceability
without affecting the legality, validity or enforceability of the remaining
provisions hereof or thereof; and the illegality, invalidity or unenforceability
of a particular provision in a particular jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction.
Section 10.11 Confidentiality. Each of the Administrative Agent, the Issuing
Bank and each Lender agrees to take normal and reasonable precautions to
maintain the confidentiality of any information designated in writing as
confidential and provided to it by the Borrower or any Subsidiary, except that
such information may be disclosed (i) to any Related Party of the Administrative
Agent, the Issuing Bank or any such Lender, including without limitation
accountants, legal counsel and other advisors, (ii) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process,
(iii) to the extent requested by any regulatory agency or authority, (iv) to the
extent that such information becomes publicly available other than as a result
of a breach of this Section, or which becomes available to the Administrative
Agent, the Issuing Bank, any Lender or any Related Party of any of the foregoing
on a nonconfidential basis from a source other than the Borrower, (v) in
connection with the exercise of any remedy hereunder or any suit, action or
proceeding relating to this Agreement or the enforcement of rights hereunder,
and (ix) subject to provisions substantially similar to this Section 10.11, to
any actual or prospective assignee or Participant, or (vi) with the consent of
the Borrower. Any Person required to maintain the confidentiality of any
information as provided for in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such information as such Person would
accord its own confidential information. Section 10.12 Interest Rate Limitation.
Notwithstanding anything herein to the contrary, if at any time the interest
rate applicable to any Loan, together with all fees, charges and other amounts
which may be treated as interest on such Loan under applicable law
(collectively, the "Charges"), shall exceed the maximum lawful rate of interest
(the "Maximum Rate") which may be contracted for, charged, taken, received or
reserved by a Lender holding such Loan in accordance with applicable law, the
rate of interest payable in respect of such Loan hereunder, together with all
Charges payable in respect thereof, shall be limited to the Maximum Rate and, to
the extent lawful, the interest and Charges that would have been payable in
respect of such Loan but were not payable as a result of the operation of this
Section shall be cumulated and the interest and Charges payable to such Lender
in respect of other Loans or periods shall be increased (but not above the
Maximum Rate therefor) until such cumulated amount, together with interest
thereon at the Federal Funds Rate to the date of repayment, shall have been
received by such Lender.
(remainder of page left intentionally blank)
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
RUBY TUESDAY, INC.,
as Borrower
By /s/ Xxxxxxxxxx X. Xxxxx
Name: Xxxxxxxxxx X. Xxxxx
Title: Senior Vice President
[SEAL]
SUNTRUST BANK,
as Administrative Agent, as Issuing Bank,
as Swingline Lender and as a Lender
By /s/ Xxxxx Patel_______________
Name: Xxxxx Xxxxx
Title: Director
Revolving Commitment: $57,661,731.99
Term Loan Commitment: $0.00
BANK OF AMERICA, N.A.
By /s/ Xxxx X. Hall_____________
Name: Xxxx X. Xxxx
Title: Senior Vice President
Revolving Commitment: $39,489,463.80
Term Loan Commitment: $10,887,903.49
FLEET NATIONAL BANK
By /s/ Xxxxxx X. MacElhiney_____
Name: Xxxxxx X. XxxXxxxxxx
Title: Director
Revolving Commitment: $19,969,369.57
Term Loan Commitment: $0.00
U.S. BANK NATIONAL ASSOCIATION
By /s/ Xxxxxxx X. Rogers_________
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
Revolving Commitment: $19,969,369.57
Term Loan Commitment: $0.00
WACHOVIA BANK, NATIONAL ASSOCIATION
By /s/ Xxxxxx X. Mathews________
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
Revolving Commitment: $33,598,570.71
Term Loan Commitment: $18,532,601.68
AMSOUTH BANK
By /s/ Xxxxxxx X. Baker__________
Name: Xxxxxxx X. Xxxxx
Title: Senior Vice President
Revolving Commitment: $9,984,684.79
Term Loan Commitment: $17,837,629.11
HIBERNIA NATIONAL BANK
By /s/ Xxxxxxx X. Geissler________
Name: Xxxxxxx X. Xxxxxxxx
Title: Vice President
Revolving Commitment: $0.00
Term Loan Commitment: $10,192,930.92
UNION PLANTERS BANK, N.A.
By /s/ Xxx Xxxxxx Hagemeyer____
Name: Xxx Xxxxxx Xxxxxxxxx
Title: Senior Vice President
Revolving Commitment: $0.00
Term Loan Commitment: $12,972,821.17
SOUTHTRUST BANK
By /s/ Xxxxx X. Harris___________
Name: Xxxxx X. Xxxxxx
Title: Vice President
Revolving Commitment: $19,969,369.57
Term Loan Commitment: $0.00
EXHIBIT A
REVOLVING CREDIT NOTE
$____________ Atlanta, Georgia
July 26, 2002
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to ______________ (the
"Lender") or its registered assigns, at the office of the Lender at
________________________________, on the Revolving Commitment Termination Date
(as defined in the Revolving Credit and Term Loan Agreement dated as of July 26,
2002, as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the lenders from
time to time party thereto and SunTrust Bank, as administrative agent for the
lenders, the lesser of the principal sum of $_______________ and the aggregate
unpaid principal amount of all Revolving Loans made by the Lender to the
Borrower pursuant to the Credit Agreement, in lawful money of the United States
of America in immediately available funds, and to pay interest from the date
hereof on the principal amount thereof from time to time outstanding, in like
funds, at said office, at the rate or rates per annum and payable on such dates
as provided in the Credit Agreement. In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, the Borrower
further promises to pay all costs of collection, including the reasonable
attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is entitled
to the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for prepayment of the principal hereof prior to the maturity
hereof and for the amendment or waiver of certain provisions of the Credit
Agreement, all upon the terms and conditions therein specified. THIS REVOLVING
CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
RUBY TUESDAY, INC.
By:
Name:
Title:
[SEAL]
EXHIBIT B
TERM NOTE
$____________ Atlanta, Georgia
July 26, 2002
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to ______________ (the
"Lender") or its registered assigns, at the office of the Lender at 000
Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, or at such other place as the holder
hereof may designate in writing to the Borrower, (i) on the Maturity Date (as
defined in the Revolving Credit and Term Loan Agreement dated as of July 26,
2002 (as the same may be amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the lenders from
time to time party thereto and SunTrust Bank, as administrative agent for the
lenders, the aggregate unpaid principal amount of the Term Loan (as defined in
the Credit Agreement) made by the Lender to the Borrower pursuant to the Credit
Agreement, and (ii) on each date specified in the Credit Agreement prior to the
Maturity Date, such Lender's pro rata share of the principal amount of the Term
Loans payable to the Lenders on such date as specified therein, in each case in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date hereof on the principal amount thereof from time
to time outstanding, in like funds, at said office, at the rate or rates per
annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Term Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Term Note and the
Credit Agreement.
This Term Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events, for prepayment of the principal hereof prior to the maturity hereof and
for the amendment or waiver of certain provisions of the Credit Agreement, all
upon the terms and conditions therein specified. THIS TERM NOTE SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF GEORGIA
AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
RUBY TUESDAY, INC.
By:
Name:
Title:
[SEAL]
EXHIBIT C
SWINGLINE NOTE
$__________ Atlanta, Georgia
July 26, 2002
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to SunTrust Bank (the
"Swingline Lender") or its registered assigns, at the office of the Lender at
000 Xxxxxxxxx Xxxxxx, Xxxxxxx, Xxxxxxx 00000, on the Revolving Credit
Termination Date (as defined in the Revolving Credit and Term Loan Agreement
dated as of July 26, 2002 (as the same may be amended, restated, supplemented or
otherwise modified from time to time, the "Credit Agreement"), among the
Borrower, the lenders from time to time party thereto and SunTrust Bank, as
administrative agent for the lenders, the lesser of the principal sum of
$____________ and the aggregate unpaid principal amount of all Swingline Loans
made by the Swingline Lender to the Borrower pursuant to the Credit Agreement,
in lawful money of the United States of America in immediately available funds,
and to pay interest from the date hereof on the principal amount thereof from
time to time outstanding, in like funds, at said office, at the rate or rates
per annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Swingline Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to the
benefits of, the Credit Agreement which, among other things, contains provisions
for the acceleration of the maturity hereof upon the happening of certain
events, for optional and mandatory prepayment of the principal hereof prior to
the maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF
THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF AMERICA.
RUBY TUESDAY, INC.
By:
Name:
Title:
[SEAL]
LOANS AND PAYMENTS
Date
Amount and
Type of Loan
Payments of
Principal
Unpaid Principal
Balance of
Note
Name of Person
Making
Notation
EXHIBIT D
FORM OF
SUBSIDIARY GUARANTY AGREEMENT
THIS SUBSIDIARY GUARANTY AGREEMENT dated as of July 26, 2002, among each
of the Subsidiaries (each such subsidiary individually, a "Guarantor" and
collectively, the "Guarantors") of Ruby Tuesday, Inc., a Georgia corporation
(the "Borrower") from time to time parties hereto, and SunTrust Bank, a Georgia
banking corporation as administrative agent (the "Administrative Agent") for the
Lenders (as defined in the Credit Agreement referred to below).
Reference is made to the Revolving Credit and Term Loan Agreement dated
as of July 26, 2002 (as amended, restated, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the lenders from
time to time party thereto (the "Lenders") and SunTrust Bank, as Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent"), swingline
lender (in such capacity, the "Swingline Lender") and issuing bank (in such
capacity, the "Issuing Bank"). Capitalized terms used herein and not defined
herein shall have the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Guarantors is a direct or indirect wholly-owned
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders, and the issuance of the
Letters of Credit by the Issuing Bank. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit are conditioned on,
among other things, the execution and delivery by the Guarantors of this
Subsidiary Guaranty Agreement. As consideration therefor and in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Guarantors are willing to execute this Subsidiary Guaranty Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guaranty. Each Guarantor unconditionally guaranties, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing at the Default Rate and
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other Obligations, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the due and punctual payment and performance
of all obligations of the Borrower, monetary or otherwise, under each Hedging
Agreement entered into with a counterparty that was a Lender or an Affiliate of
a Lender at the time such Hedging Agreement was entered into (all the monetary
and other obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Guaranteed Obligations"). Each Guarantor further agrees
that the Guaranteed Obligations may be extended or renewed, in whole or in part,
without notice to or further assent from it, and that it will remain bound upon
its guarantee notwithstanding any extension or renewal of any Obligation.
SECTION 2. Guaranteed Obligations Not Waived. To the fullest extent
permitted by applicable law, each Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Guaranteed Obligations,
and also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each Guarantor hereunder shall not be affected by (a) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
or exercise any right or remedy against the Borrower or any other Guarantor
under the provisions of the Credit Agreement, any other Loan Document or
otherwise, (b) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document, any Guaranty or any other agreement, including with respect to any
other Guarantor under this Agreement, or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.
SECTION 3. Guaranty of Payment. Each Guarantor further agrees that
its guarantee constitutes a guarantee of payment when due and not of collection,
and waives any right to require that any resort be had by the Administrative
Agent or any Lender to any of the security held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on the books of
the Administrative Agent or any Lender in favor of the Borrower or any other
person.
SECTION 4. No Discharge or Diminishment of Guaranty. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or modification of any provision of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or omission that may or might in any
manner or to the extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Guaranteed
Obligations).
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than the final and indefeasible payment
in full in cash of the Guaranteed Obligations. The Administrative Agent and the
Lenders may, at their election, foreclose on any security held by one or more of
them by one or more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with the Borrower or any
other guarantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
fully, finally and indefeasibly paid in cash. Pursuant to applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Guarantor or guarantor, as the case may be, or
any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower or any other Loan Party to pay any Guaranteed
Obligation when and as the same shall become due, whether at maturity, by
acceleration, after notice of prepayment or otherwise, each Guarantor hereby
promises to and will forthwith pay, or cause to be paid, to the Administrative
Agent for the benefit of the Lenders in cash the amount of such unpaid
Guaranteed Obligations. Upon payment by any Guarantor of any sums to the
Administrative Agent, all rights of such Guarantor against the Borrower arising
as a result thereof by way of right of subrogation, contribution, reimbursement,
indemnity or otherwise shall in all respects be subordinate and junior in right
of payment to the prior indefeasible payment in full in cash of all the
Guaranteed Obligations. In addition, any indebtedness of the Borrower now or
hereafter held by any Guarantor is hereby subordinated in right of payment to
the prior payment in full in cash of the Guaranteed Obligations. If any amount
shall erroneously be paid to any Guarantor on account of (i) such subrogation,
contribution, reimbursement, indemnity or similar right or (ii) any such
indebtedness of the Borrower, such amount shall be held in trust for the benefit
of the Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. Representations and Warranties. Each Guarantor represents and
warrants as to itself that all representations and warranties relating to it (as
a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct.
SECTION 9. Termination. The guaranties made hereunder (a) shall
terminate when all the Guaranteed Obligations have been paid in full in cash and
the Lenders have no further commitment to lend under the Credit Agreement, the
LC Exposure has been reduced to zero and the Issuing Bank has no further
obligation to issue Letters of Credit under the Credit Agreement and (b) shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Lender or any Guarantor upon the bankruptcy or reorganization
of the Borrower, any Guarantor or otherwise. In connection with the foregoing,
the Administrative Agent shall execute and deliver to such Guarantor or
Guarantor's designee, at such Guarantor's expense, any documents or instruments
which such Guarantor shall reasonably request from time to time to evidence such
termination and release.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of the
capital stock or other equity interest of a Guarantor is sold, transferred or
otherwise disposed of pursuant to a transaction permitted by the Credit
Agreement, such Guarantor shall be released from its Guaranteed Obligations
under this Agreement without further action, and upon request of such Guarantor
or the Borrower, the Administrative Agent will execute and deliver to the
Borrower, at the Borrower's expense, such additional documents, instruments or
agreements (all of which shall be prepared by the Borrower) as the Borrower or
Guarantor shall reasonably request to further evidence the termination of this
Guaranty. This Agreement shall be construed as a separate agreement with respect
to each Guarantor and may be amended, modified, supplemented, waived or released
with respect to any Guarantor without the approval of any other Guarantor and
without affecting the Guaranteed Obligations of any other Guarantor hereunder.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent in exercising any power or right hereunder shall operate as
a waiver thereof, nor shall any single or partial exercise of any such right or
power, or any abandonment or discontinuance of steps to enforce such a right or
power, preclude any other or further exercise thereof or the exercise of any
other right or power. The rights and remedies of the Administrative Agent
hereunder and of the Lenders under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver and consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Guarantors with respect to which such waiver, amendment or
modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
SECTION 13. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
agreements representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or the other Loan Documents shall be considered to
have been relied upon by the Administrative Agent and the Lenders and shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank regardless of any investigation made by any of
them or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the Commitments
have not been terminated.
(b) In the event one or more of the provisions contained in this
Agreement or in any other Loan Document should be held 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 (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 10), and
shall become effective as provided in Section 10. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
specified in Section 1.4 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Georgia State court or Federal
court of the United States of America sitting in Atlanta, Georgia, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia State court or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding shall be
conclusive and may be enforced in other jurisdictions by suit on the judgment or
in any other manner provided by law. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to the
fullest extent it may legally and effectively do so, any objection that it may
now or hereafter have to the laying of venue of any suit, action or proceeding
arising out of or relating to this Agreement or the other Loan Documents in any
Georgia State or Federal court. Each of the parties hereto hereby irrevocably
waives, to the fullest extent permitted by law, the defense of an inconvenient
forum to the maintenance of such action or proceeding in any such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD
NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B)
ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
SECTION 19. Waiver of Certain Damages. To the extent permitted by
applicable law, no Guarantor shall assert, and each Guarantor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages)
arising out of, in connection with or as a result of, this Subsidiary Guaranty
Agreement or any agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of Credit or the use of proceeds
thereof.
SECTION 20. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party that was not in existence on the
date of the Credit Agreement is required to enter into this Agreement as a
Guarantor upon becoming Subsidiary Loan Party. Upon execution and delivery after
the date hereof by the Administrative Agent and such Subsidiary Loan Party of an
instrument in the form of Annex 1, such Subsidiary Loan Party shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
SECTION 21. Savings Clause. It is the intent of each Guarantor and the
other Loan Parties that each Guarantor's maximum Guaranteed Obligations
hereunder shall be, but not in excess of:
(a) in a case or proceeding commenced by or against any
Guarantor under Title 11 of the United States Code (the "Bankruptcy Code") on or
within one year from the date on which any of the Guaranteed Obligations are
incurred, the maximum amount which would not otherwise cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Administrative
Agent, the Lenders or the Issuing Bank) to be avoidable or unenforceable against
such Guarantor under (A)Section 548 of the Bankruptcy Code or (B) any state
fraudulent transfer or fraudulent conveyance act or statute applied in such
case or proceeding by virtue of Section 544 of the Bankruptcy
Code; or
(b) in a case or proceeding commenced by or against any
Guarantor under the Bankruptcy Code subsequent to one year from the date on
which any of the Guaranteed Obligations are incurred, the maximum amount which
would not otherwise cause the Guaranteed Obligations (or any other obligations
of such Guarantor to the Administrative Agent, the Lenders or the Issuing Bank)
to be avoidable or unenforceable against such Guarantor under any state
fraudulent transfer or fraudulent conveyance act or statute applied in any such
case or proceeding by virtue of Section 544 of the Bankruptcy Code; or
(c) in a case or proceeding commenced by or against any
Guarantor under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise cause
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders or the Issuing Bank) to be avoidable or
unenforceable against such Guarantor under such law, statute or regulation
including, without limitation, any state fraudulent transfer or fraudulent
conveyance act or statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other obligations of such Guarantor to the
Administrative Agent, the Lenders or the Issuing Bank) shall be determined in
any such case or proceeding shall hereinafter be referred to as the "Avoidance
Provisions").
(d) To the extent set forth in Section 21(a),(b), and (c), but
only to the extent that the Guaranteed Obligations would otherwise be subject to
avoidance under the Avoidance Provisions, if any Guarantor is not deemed to have
received valuable consideration, fair value or reasonably equivalent value for
the Guaranteed Obligations, or if the Guaranteed Obligations would render such
Guarantor insolvent, or leave such Guarantor with an unreasonably small capital
to conduct its business, or cause such Guarantor to have incurred debts (or to
have intended to have incurred debts) beyond its ability to pay such debts as
they mature, in each case as of the time any of the Guaranteed Obligations are
deemed to have been incurred under the Avoidance Provisions and after giving
effect to the contribution by such Guarantor, the maximum Guaranteed Obligations
for which such Guarantor shall be liable hereunder shall be reduced to that
amount which, after giving effect thereto, would not cause the Guaranteed
Obligations (or any other obligations of such Guarantor to the Administrative
Agent, the Lenders or the Issuing Bank), as so reduced, to be subject to
avoidance under the Avoidance Provisions. This Section 21 is intended solely to
preserve the rights of the Loan Parties hereunder to the maximum extent that
would not cause the Guaranteed Obligations of such Guarantor to be subject to
avoidance under the Avoidance Provisions, and neither the Guarantors nor any
other Person shall have any right or claim under this Section 21 as against the
Administrative Agent, the Lenders or the Issuing Bank that would not otherwise
be available to such Person under the Avoidance Provisions.
SECTION 22. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and the Issuing Bank are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other Indebtedness at any time owing by such
Lender or the Issuing Bank to or for the credit or the account of any Guarantor
against any or all the Guaranteed Obligations of such Guarantor now or hereafter
existing under this Agreement and the other Loan Documents held by such Lender
or the Issuing Bank, irrespective of whether or not such Person shall have made
any demand under this Agreement or any other Loan Document and although such
Guaranteed Obligations may be unmatured. The rights of each Lender and the
Issuing Bank under this Section 22 are in addition to other rights and remedies
(including other rights of setoff) which such Lender or the Issuing Bank, as the
case may be, may have.
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
RUBY TUESDAY, LLC
By: /s/ Xxxxxx X. Cronk_____________
Name: Xxxxxx X. Xxxxx
Title: Vice President
RTBD, INC.
By: /s/ Xxxxxx X. Cronk_____________
Name: Xxxxxx X. Xxxxx
Title: Vice President
A.R.T. HOLDING, LLC
By: /s/ Xxxxxx X. Cronk_____________
Name: Xxxxxx X. Xxxxx
Title: Vice President
RT MORTGAGES, L.L.C.
By: /s/ Xxxxxx X. Cronk_____________
Name: Xxxxxx X. Xxxxx
Title: Vice President
RT FLORIDA, LLC
By: /s/ Xxxxxx X. Cronk_____________
Name: Xxxxxx X. Xxxxx
Title: Vice President
SUNTRUST BANK, as
Administrative Agent
By: /s/ Xxxxx Patel______________
Name: Xxxxx Xxxxx
Title: Director
SCHEDULE I TO THE SUBSIDIARY GUARANTY AGREEMENT
Guarantor(s) Address
Ruby Tuesday, LLC Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RTBD, Inc. Attn: Xxxxxxx Corporate Services,
Xxxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
A.R.T. Holding, LLC Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RT Mortgages, L.L.C. Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RT Florida, LLC Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
ANNEX 1 TO THE SUBSIDIARY GUARANTY AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Subsidiary Guaranty Agreement
(the "Guaranty Agreement") dated as of July __, 2002 among each of the
subsidiaries listed on Schedule I thereto (each such Subsidiary individually, a
"Guarantor" and collectively, the "Guarantors") of RUBY TUESDAY, INC., a
Georgia corporation (the "Borrower"), and SUNTRUST BANK, a Georgia banking
corporation, as Administrative Agent (the "Administrative Agent") for the
Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to the Revolving Credit and Term Loan Agreement
dated as of July 26, 2002 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto (the "Lenders") and SunTrust Bank, as
Administrative Agent, swingline lender and issuing bank (in such capacity, the
"Issuing Bank"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guaranty Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guaranty Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary Loan
Party that was not in existence or not a Subsidiary Loan Party on the date of
the Credit Agreement is required to enter into the Guaranty Agreement as a
Guarantor upon becoming a Subsidiary Loan Party. Section 20 of the Guaranty
Agreement provides that additional Subsidiaries of the Borrower may become
Guarantors under the Guaranty Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (the "New Guarantor") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Guarantor under the
Guaranty Agreement in order to induce the Lenders to make additional Loans and
the Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 20 of the Guaranty Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guaranty
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guaranty Agreement applicable to it as Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guaranty Agreement shall be deemed to
include the New Guarantor. The Guaranty Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of which
shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 13 of the Guaranty Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges actually incurred
of counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative
Agent have duly executed this Supplement to the Guaranty Agreement as of the day
and year first above written.
[Name of New Guarantor]
By:
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
Name:
Title:
EXHIBIT E
INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT
This INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated as of July
26, 2002, among RUBY TUESDAY, INC., a Georgia corporation (the "Borrower"), each
Subsidiary listed on Schedule I hereto (the "Guarantors"), SUNTRUST BANK, a
Georgia banking corporation, as administrative agent (in such capacity, the
"Administrative Agent") for the Lenders (as defined in the Credit Agreement
referred to below).
Reference is made to (a) the Revolving Credit and Term Loan Agreement
dated as of July 26, 2002 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto (the "Lenders") and SunTrust Bank, as
Administrative Agent, swingline lender and issuing bank (in such capacity, the
"Issuing Bank"), and (b) the Subsidiary Guaranty Agreement dated as July __,
2002, among the Guarantors and the Administrative Agent (as amended, restated,
supplemented or otherwise modified from time to time, the "Guaranty Agreement").
Capitalized terms used herein and not defined herein shall have the meanings
assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Guarantors have guaranteed such Loans and the other
Guaranteed Obligations (as defined in the Guaranty Agreement) of the Borrower
under the Credit Agreement pursuant to the Guaranty Agreement. The obligations
of the Lenders to make Loans and of the Issuing Bank to issue Letters of Credit
are conditioned on, among other things, the execution and delivery by the
Borrower and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent agree as
follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that in the event a payment shall be
made by any Guarantor under the Guaranty Agreement, the Borrower shall indemnify
such Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a "Contributing
Guarantor") agrees (subject to Section 3) that, in the event a payment shall be
made by any other Guarantor under the Guaranty Agreement and such other
Guarantor (the "Claiming Guarantor") shall not have been fully indemnified by
the Borrower as provided in Section 1, the Contributing Guarantor shall
indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 12, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 2 shall be subrogated to the rights
of such Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required under applicable law or otherwise shall
in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not been
reduced to zero or any of the Commitments under the Credit Agreement have not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Administrative Agent, any Lender or any Guarantor to exercise, and no delay in
exercising, any right, power or remedy hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right, power or
remedy by the Administrative Agent, any Lender or any Guarantor preclude any
other or further exercise thereof or the exercise of any other right, power or
remedy. All remedies hereunder are cumulative and are not exclusive of any other
remedies provided by law. None of the Administrative Agent and the Guarantors
shall be deemed to have waived any rights hereunder unless such waiver shall be
in writing and signed by such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Borrower, the Guarantors and the Administrative Agent, with the
prior written consent of the Required Lenders (except as otherwise provided in
the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall be
in writing and given as provided in the Guaranty Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guaranty Agreement in accordance with such
Guaranty Agreement and the Credit Agreement, such Guarantor will cease to have
any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have been relied
upon by the Administrative Agent, the Lenders and each Guarantor and shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loans or any other fee
or amount payable under the Credit Agreement or this Agreement or under any of
the other Loan Documents is outstanding and unpaid or the LC Exposure does not
equal zero and as long as the Commitments have not been terminated.
(b) In case one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, no party hereto
shall be required to comply with such provision for so long as such provision is
held to be invalid, illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in counterparts
(and by different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Agreement shall be effective with respect to any Guarantor
when a counterpart bearing the signature of such Guarantor shall have been
delivered to the Administrative Agent. Delivery of an executed signature page to
this Agreement by facsimile transmission shall be as effective as delivery of a
manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
specified in Section 1.4 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party of the Borrower that was not in
existence or not such a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guaranty Agreement as Guarantor upon
becoming such a Subsidiary Loan Party. Upon the execution and delivery, after
the date hereof, by the Administrative Agent and such Subsidiary of an
instrument in the form of Annex I hereto, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor hereunder. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized officers as of the date first
appearing above.
RUBY TUESDAY, INC.
By:/s/ Xxxxxx X. Xxxxx
Name: Xxxxxx X. Xxxxx
Title:Senior Vice President
RUBY TUESDAY, LLC
By:/s/ Xxxxxx X. Xxxxx
Name:Xxxxxx X. Xxxxx
Title:Senior Vice President
RTBD, INC.
By:/s/ Xxxxxx X. Xxxxx
Name:Xxxxxx X. Xxxxx
Title:Senior Vice President
A.R.T. HOLDING, LLC
By:/s/ Xxxxxx X. Xxxxx
Name:Xxxxxx X. Xxxxx
Title:Senior Vice President
RT MORTGAGES, L.L.C.
By:/s/ Xxxxxx X. Xxxxx
Name:Xxxxxx X. Xxxxx
Title:Senior Vice President
RT FLORIDA, LLC
By:/s/ Xxxxxx X. Xxxxx
Name:Xxxxxx X. Xxxxx
Title:Senior Vice President
SUNTRUST BANK, as
Administrative Agent
By:/s/ Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Director
SCHEDULE I
TO THE INDEMNITY, SUBROGATION
AND CONTRIBUTION AGREEMENT
Guarantor(s) Address
Ruby Tuesday, LLC Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RTBD, Inc. Attn: Xxxxxxx Corporate Services,
Xxxxxxxx Xxxxxxx
000 Xxxxxxxx Xxxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
with a copy to:
Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
A.R.T. Holding, LLC Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RT Mortgages, L.L.C. Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
RT Florida, LLC Attn: Legal Department
000 Xxxx Xxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
ANNEX I TO
THE INDEMNITY, SUBROGATION AND
CONTRIBUTION AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Indemnity,
Subrogation and Contribution Agreement dated as of July 26, 2002 (as the same
may be amended, restated, supplemented or otherwise modified from time to time,
the "Indemnity, Subrogation and Contribution Agreement") among RUBY
TUESDAY, INC., a Georgia corporation (the "Borrower"), each Subsidiary listed
on Schedule I thereto (the "Guarantors") and SUNTRUST BANK, a Georgia banking
corporation, as administrative agent (the "Administrative Agent") for the
Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to (a) the Revolving Credit and Term Loan Agreement
dated as of July 26, 2002 (as amended, restated, supplemented or otherwise
modified from time to time, the "Credit Agreement"), among the Borrower, the
lenders from time to time party thereto (the "Lenders") and SunTrust Bank, as
the Administrative Agent, swingline lender and issuing bank (in such capacity,
the "Issuing Bank"), and (b) the Subsidiary Guaranty Agreement dated as July 26,
2002, among the Guarantors and the Administrative Agent (as amended, restated,
supplemented or otherwise modified from time to time, the "Guaranty Agreement").
B. Capitalized terms used herein and not otherwise defined
herein shall have the meanings assigned to such terms in the Indemnity,
Subrogation and Contribution Agreement and the Credit Agreement.
C. The Borrower and the Guarantors have entered into the
Indemnity, Subrogation and Contribution Agreement in order to induce the Lenders
to make Loans and the Issuing Bank to issue Letters of Credit. Pursuant to
Section 5.10 of the Credit Agreement, each Subsidiary Loan Party that was not in
existence or not such a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guaranty Agreement as a Guarantor upon
becoming a Subsidiary Loan Party. Section 12 of the Indemnity, Subrogation and
Contribution Agreement provides that additional Subsidiaries may become
Guarantors under the Indemnity, Subrogation and Contribution Agreement by
execution and delivery of an instrument in the form of this Supplement. The
undersigned Subsidiary (the "New Guarantor") is executing this Supplement in
accordance with the requirements of the Credit Agreement to become a Guarantor
under the Indemnity, Subrogation and Contribution Agreement in order to induce
the Lenders to make additional Loans and the Issuing Bank to issue additional
Letters of Credit and as consideration for Loans previously made and Letters of
Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 12 of the Indemnity, Subrogation
and Contribution Agreement, the New Guarantor by its signature below becomes a
Guarantor under the Indemnity, Subrogation and Contribution Agreement with the
same force and effect as if originally named therein as a Guarantor and the New
Guarantor hereby agrees to all the terms and provisions of the Indemnity,
Subrogation and Contribution Agreement applicable to it as Guarantor thereunder.
Each reference to a Guarantor in the Indemnity, Subrogation and Contribution
Agreement shall be deemed to include the New Guarantor. The Indemnity,
Subrogation and Contribution Agreement is hereby incorporated herein by
reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts (and by
different parties hereto on different counterparts) each of which shall
constitute an original, but all of which when taken together shall constitute a
single contract. This Supplement shall become effective when the Administrative
Agent shall have received counterparts of this Supplement that, when taken
together, bear the signature of the New Guarantor and the Administrative Agent.
Delivery of an executed signature page to this Supplement by facsimile
transmission shall be as effective as delivery of a manually signed counterpart
of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Indemnity,
Subrogation and Contribution Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect,
neither party hereto shall be required to comply with such provision for so long
as such provision is held to be invalid, illegal or unenforceable, but the
validity, legality and enforceability of the remaining provisions contained
herein and in the Indemnity, Subrogation and Contribution Agreement shall not in
any way be affected or impaired. The parties hereto shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 7 of the Indemnity, Subrogation and
Contribution Agreement. All communications and notices hereunder to the New
Guarantor shall be given to it at the address set forth under its signature.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its reasonable out-of-pocket expenses in connection with this
Supplement, including the reasonable fees, other charges and disbursements of
counsel for the Administrative Agent.
IN WITNESS WHEREOF, the New Guarantor and the Administrative Agent have
duly executed this Supplement to the Indemnity, Subrogation and Contribution
Agreement as of the day and year first above written.
[Name of New Guarantor]
By:
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
Name:
Title:
SCHEDULE I TO SUPPLEMENT NO. ____ TO THE INDEMNITY, SUBROGATION AND CONTRIBUTION
AGREEMENT
Guarantors
Name Address
