CREDIT AGREEMENT
By and Among
CRACKER BARREL OLD COUNTRY STORE, INC.,
THE LENDERS LISTED HEREIN,
and
SUNTRUST BANK, NASHVILLE, N.A.
As Agent
$125,000,000 Revolving Credit, Term Loan and Letter of Credit
Facility
February 18, 1997
TABLE OF CONTENTS
PAGE
Article I. Definitions. -1-
Section 1.01 Construction of Terms -1-
Section 1.02 Definitions -2-
Article II. The Credit -15-
Section 2.01 Loan Facilities -15-
Section 2.02 Letters of Credit -17-
Section 2.03 Swing Line Loan -19-
Section 2.04 Interest Rate -21-
Section 2.05 Borrowing Procedure -23-
Section 2.06 Use of Proceeds -24-
Section 2.07 Participation -25-
Section 2.08 Term of This Agreement -25-
Section 2.09 Payments to Principal Office; Debit
Authority -25-
Section 2.10 Prepayment -26-
Section 2.11 Apportionment of Payments -28-
Section 2.12 Sharing of Payments, Etc -29-
Section 2.13 Right of Offset, Etc -30-
Section 2.14 Commitment Fee -30-
Section 2.15 Usury -30-
Section 2.16 Interest Rate Not Ascertainable, Etc -31-
Section 2.17 Illegality -32-
Section 2.18 Increased Costs -32-
Section 2.19 Mitigation -34-
Article III. Representations and Warranties -35-
Section 3.01 Corporate Existence -35-
Section 3.02 Power and Authorization -35-
Section 3.03 Binding Obligations -35-
Section 3.04 No Legal Bar or Resultant Lien -36-
Section 3.05 No Consent -36-
Section 3.06 Financial Condition -36-
Section 3.07 Investments, Advances, and Guarantees -36-
Section 3.08 Liabilities and Litigation -37-
Section 3.09 Taxes; Governmental Charges -37-
Section 3.10 No Default -37-
Section 3.11 Compliance with Laws, Etc -38-
Section 3.12 ERISA -38-
Section 3.13 No Material Misstatements -38-
Section 3.14 Regulation U -38-
Section 3.15 Filings -39-
Section 3.16 Title, Etc -39-
Section 3.17 Personal Holding Company; Subchapter
S -39-
Section 3.18 Subsidiaries -40-
Article IV. Conditions Precedent -40-
Section 4.01 Initial Conditions -40-
Section 4.02 All Borrowings -42-
Article V. Affirmative Covenants -43-
Section 5.01 Financial Statements and Reports -43-
Section 5.02 Annual Certificates of Compliance -44-
Section 5.03 Taxes and Other Liens -45-
Section 5.04 Maintenance -45-
Section 5.05 Further Assurances -46-
Section 5.06 Performance of Obligations -46-
Section 5.07 Insurance -46-
Section 5.08 Accounts and Records -47-
Section 5.09 Right of Inspection -47-
Section 5.10 Notice of Certain Events -47-
Section 5.11 ERISA Information and Compliance -48-
Section 5.12 Additional Guarantees -48-
Article VI. Negative Covenants -49-
Section 6.01 Liens -49-
Section 6.02 Investments, Loans, and Advances -50-
Section 6.03 Sales and Leasebacks -51-
Section 6.04 Nature of Business -51-
Section 6.05 Mergers, Consolidations, Etc -51-
Section 6.06 Disposition of Assets -52-
Section 6.07 Inconsistent Agreements -52-
Section 6.08 Fiscal Year -52-
Section 6.09 Transactions with Affiliates -52-
Section 6.10 Transfers to Excluded Subsidiaries -52-
Article VII Financial Covenants -52-
Section 7.01 Financial Covenants -53-
Article VIII. Events of Default -53-
Section 8.01 Events of Default -53-
Section 8.02 Remedies -56-
Section 8.03 Default Conditions -57-
Article IX. General Provisions -57-
Section 9.01 Notices -57-
Section 9.02 Invalidity -58-
Section 9.03 Survival of Agreements -58-
Section 9.04 Successors and Assigns -59-
Section 9.05 Waivers -59-
Section 9.06 Cumulative Rights -59-
Section 9.07 Construction -59-
Section 9.08 Time of Essence -60-
Section 9.09 Costs, Expenses, and Indemnification -60-
Section 9.10 Entire Agreement; No Oral
Representations Limiting Enforcement -60-
Section 9.11 Amendments -60-
Section 9.12 Distribution of Information -61-
Article X. Jury Waiver -61-
Section 10.01 Jury Waiver -61-
Article XI. Hazardous Substances -61-
Section 11.01 Representation and Indemnity
Regarding Hazardous Substances -61-
Article XII. The Agent -63-
Section 12.01 Appointment of Agent -63-
Section 12.02 Authorization of Agent with Respect
to the Loan Documents -64-
Section 12.03 Agent's Duties Limited; No Fiduciary
Duty -67-
Section 12.04 No Reliance on the Agent -67-
Section 12.05 Certain Rights of Agent -68-
Section 12.06 Reliance by Agent -69-
Section 12.07 Indemnification of Agent -69-
Section 12.08 The Agent in its Individual Capacity -70-
Section 12.09 Holders of Notes -70-
Section 12.10 Successor Agent -71-
Section 12.11 Notice of Default or Event of
Default -72-
Section 12.12 Benefit of Agreement -73-
Section 12.13 Removal of Lender -76-
Article XIII. Guarantors -78-
Section 13.01 Guarantors -78-
EXHIBITS
EXHIBIT A Form of Revolving Credit Note
EXHIBIT B Form of Term Note
EXHIBIT C Form of Swing Line Note
EXHIBIT D Form of Letter of Credit Application
EXHIBIT E Form of Borrowing Request
EXHIBIT F Form of Guaranty Agreement
EXHIBIT G Form of Certificate of Compliance under Section 5.01(c)
CREDIT AGREEMENT
THIS CREDIT AGREEMENT is made and entered into as of this
18th day of February, 1997, by and between CRACKER BARREL OLD
COUNTRY STORE, INC., a Tennessee corporation (the "Borrower"),
SUNTRUST BANK, NASHVILLE, N.A. ("STB"), WACHOVIA BANK OF GEORGIA,
N.A. ("Wachovia"), THE FIRST NATIONAL BANK OF CHICAGO ("First
Chicago"), and the other banks and lending institutions who
become Lenders pursuant to Section 12.12 herein (STB, Wachovia,
First Chicago and such other banks and lending institutions are
referred to collectively as the "Lenders"), and SUNTRUST BANK,
NASHVILLE, N.A., Agent in its capacity as agent for the Lenders
and each successive agent for such Lenders as may be appointed
from time to time pursuant to Article XII herein (the "Agent").
RECITALS
A. The Borrower desires that the Lenders extend the
Borrower credit pursuant to the terms of this Credit Agreement.
B. The Lenders are willing to extend the Borrower credit
pursuant to the terms and conditions contained herein.
NOW, THEREFORE, in consideration of the premises and for
other good and valuable consideration, the parties hereto agree
as follows:
Article I. Definitions.
Section 1.01 Construction of Terms. The terms defined in
this article have the meanings attributed to them in this
article. Singular terms shall include the plural as well as the
singular, and vice versa. Words of masculine, feminine or neuter
gender shall mean and include the correlative words of other
genders. All references herein to a separate instrument are to
such separate instrument as the same may be amended or
supplemented from time to time pursuant to the applicable
provisions thereof. All accounting terms not otherwise defined
herein have the meanings assigned to them, and all computations
herein provided for shall be made, in accordance with generally
accepted accounting principles applied on a consistent basis. All
references herein to "generally accepted accounting principles"
refer to such principles as they exist at the date of application
thereof. All references herein to designated "Articles",
"Sections" and other subdivisions or to lettered Exhibits are to
the designated Articles, Sections and other subdivisions hereof
and the Exhibits annexed hereto unless the context otherwise
clearly indicates. All Article, Section, other subdivision and
Exhibit captions herein are used for reference only and in no way
limit or describe the scope or intent of, or in any way affect,
this Agreement.
Section 1.02 Definitions. As used in this Agreement, the
following terms shall have the following meanings, unless the
context expressly otherwise requires:
"Advance" or "Advances" shall mean any and all amounts
advanced by Lenders to or for the account of Borrower
hereunder, including credit extended under the Term Loan,
the Revolving Credit Loan and all amounts advanced by the
Swing Line Lender under the Swing Line Loan, including,
without limitation, advances of loan proceeds, payments in
overdraft, and amounts evidenced by Letters of Credit. The
terms "Advance" and "Loan" are used interchangeably in this
Agreement.
"Affiliate" of any specified Person means any other
Person which directly or indirectly through one or more
intermediaries controls, or is controlled by, or is under
common control with such specified Person. For purposes of
this definition, "control" when used with respect to any
specified Person means the power to direct or cause the
direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of
voting securities, by contract or otherwise; and the terms
"controls" and "controlled" have meanings correlative to the
foregoing.
"Agent" means SunTrust Bank, Nashville, N.A. or its
successor as appointed pursuant to the provisions of
Article XII herein.
"Agreement" means this Credit Agreement (including all
exhibits hereto) as the same may be modified, amended, or
supplemented from time to time.
"Applicable Rate" means: (i) with respect to the
Revolving Credit Loan either the Base Rate Option or the
LIBOR Rate Option, as elected by Borrower; (ii) with respect
to the Term Loan, the Term Loan Rate; and (iii) with respect
to the Swing Line Loan, the Swing Line Rate.
"Assignment and Acceptance" means an Assignment and
Acceptance form executed by a Lender assigning its interest
in the Revolving Credit Loan and/or the Term Loan (other
than as participation), to an Eligible Assignee in a form
reasonably satisfactory to Agent.
"Base Rate" means the rate of interest equal to the
rate of interest most recently announced by Agent as its
reference, base, or prime lending rate, as the case may be,
for Dollar loans in the United States.
"Base Rate Option" shall mean that rate of interest
equal to the higher of (i) the Base Rate minus one percent
(1%) per annum; or (ii) the Federal Funds Rate (as in effect
from time to time) plus one-half of one percent (1/2%) per
annum. The Base Rate Option is determined daily.
"Borrower" means Cracker Barrel Old Country Store, Inc.
and its permitted successors and assigns.
"Borrowing Request" means a request in the form of
Exhibit E hereto submitted by Borrower for an Advance as
described in Section 2.05 of this Agreement.
"Business Day" means any day other than a Saturday, a
Sunday, a legal holiday or day on which commercial banks are
authorized to close for business in New York City or the
State of Tennessee; provided that in the case of an Advance
as a LIBOR Rate Loan, such day is also a day on which
dealings between banks are carried on in U.S. dollar
deposits in the London interbank market.
"Closing Date" means the 17th day of February, 1997.
"Code" means the Internal Revenue Code of 1986, as
amended from time to time, and any successor statute.
"Conditions Precedent" means those matters or events
that must be completed or must occur or exist prior to
Lenders' being obligated to fund any Advance, including, but
not limited to, those matters described in Article IV
hereof.
"Debt" means, with respect to any Person, all
obligations of such Person, contingent or otherwise, which
in accordance with GAAP would be classified on a balance
sheet of such Person as liabilities, and in addition such
term shall include, but without duplication: (a) liabilities
secured by any mortgage, pledge or lien existing on Property
owned by such Person and subject to such mortgage, pledge or
lien, whether or not the liability secured thereby shall
have been assumed by such Person, (b) all indebtedness and
other similar monetary obligations of such Person, (c) all
guaranties, obligations in respect of letters of credit,
endorsements (other than endorsements of negotiable
instruments for purposes of collection in the ordinary
course of business), obligations to purchase goods or
services for the purpose of supplying funds for the purchase
or payment of Debt of others and other contingent
obligations in respect of, or to purchase, or otherwise
acquire, or advance funds for the purchase of, Debt of
others, (d) all obligations of such Person to indemnify
another Person to the extent of the amount of indemnity, if
any, which would be payable by such Person at the time of
determination of Debt and (e) all obligations of such Person
under capital leases.
"Default Rate" means an interest rate equal to the Base
Rate plus two percent (2.00%) per annum.
"Default" or "Event of Default" means the occurrence of
any of the events specified in Section 8.01 hereof.
"Default Conditions" or "Default Condition" means the
occurrence of any of the events specified in Section 8.03
hereof.
"EBIT" (Earnings Before Interest and Taxes) means for
Borrower, as determined on a consolidated basis for any
specified period, an amount equal to the sum of: (A) pre-tax
income, plus (B) total Interest Expense.
"Eligible Assignee" means: (i) with the prior consent
of Borrower, which will not be unreasonably withheld or
delayed, a commercial bank or financial institution having
total assets in excess of $1,000,000,000 or any commercial
finance or asset-based lending Affiliate of any such
commercial bank or financial institution which has complied
with Section 12.12 herein, or (ii) any Lender, or an
Affiliate thereof. The consent of Borrower shall not be a
condition precedent to assignment to an Eligible Assignee if
an Event of Default exists and is continuing.
"Environmental Law" means any federal, state, or local
law, statute, ordinance, or regulation applicable or
pertaining to health, industrial hygiene, waste materials,
removal of waste materials, oil, gas, underground storage
tanks, Hazardous Substances, other environmental conditions
on, under, or affecting any of the Borrower's Property.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, including (unless
the context otherwise requires) any rules or regulations
promulgated thereunder.
"Excluded Subsidiary" or "Excluded Subsidiaries" means
collectively Cracker Barrel Old Country Store TV, Inc., and
any future Subsidiary which is not required to execute a
Guaranty under the provisions of Section 5.12 hereof.
"Facing Fee" means the product of (a) .04% multiplied
by (b) the face amount of any Letter of Credit.
"Federal Funds Rate" means for any period, a
fluctuating interest rate per annum equal for each day
during such period 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 for such day (or, if such day is not a
Business Day, for the next preceding Business Day) by the
Federal Reserve Bank of Atlanta, or, if such rate is not so
published for any day that is a Business Day, the average of
the quotations for such day on such transactions received by
the Agent from three (3) Federal funds brokers of recognized
standing selected by the Agent.
"Financial Statements" means (i) the consolidated
financial statement or statements of Borrower and its
Subsidiaries, described or referenced in Section 3.06 hereof
and delivered with this Agreement to Agent for distribution
to Lenders, and (ii) subsequent financial statements
required to be provided pursuant to Section 5.01(a) and (b)
of this Agreement.
"Fiscal Quarter" means each of the quarters of the
Fiscal Year ending on or about the last day of each January,
April, July and October.
"Fiscal Year" or "Annually" means the twelve-month
accounting period ending on or about July 31st of each year
and presently used by the Borrower as its fiscal year for
accounting purposes.
"Funding Account" shall mean that certain account
maintained by Borrower with Agent, bearing account no.
7020125402.
"GAAP" means generally accepted accounting principles
in the United States.
"Guarantors" or "Guarantor" means all Subsidiaries of
Borrower, whether now existing or hereafter created, except
for Excluded Subsidiaries.
"Guaranty" and "Guarantees" means the guaranty
agreements executed by each Guarantor in substantially the
form as set forth in Exhibit F, or as otherwise agreed
between Agent and Guarantor.
"Hazardous Substances" means those substances included
within the definition of hazardous substances, hazardous
materials, toxic substances, or solid waste under the
Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended, 42 U.S.C. 9601, et
seq.; the Resource Conservation and Recovery Act of 1976, 42
U.S.C. 6901, et seq.; the Hazardous Materials
Transportation Act, 49 U.S.C. 1801, et seq.; any
applicable state law and in the regulations promulgated
pursuant to such acts and laws, and such other substances,
materials, and waste which are or become regulated under any
Environmental Law.
"Interest Expense" shall mean with respect to the
applicable period, the aggregate interest expense and
amortization of deferred loan costs of Borrower (calculated
without regard to any limitations on the payment thereof),
imputed interest on capitalized lease obligations of
Borrower, and net costs under interest rate protection
agreements for Borrower, all on a consolidated basis and as
determined in conformity with GAAP.
"Interest Rate Period" or "Interest Period" shall be
applicable only to Advances calculated using the LIBOR Rate
Option, and shall mean a one-month, two-month, three-month,
or six-month time period selected by Borrower pursuant to
Section 2.04 herein. No Interest Rate Period may end on a
date extending beyond the Maturity Date.
"Lease Adjusted Funded Debt" shall mean the sum of (1)
all Debt (as previously defined in this Agreement); and (2)
the present value of all operating lease obligations as
determined in accordance with standard S & P methodology.
The calculation of Lease Adjusted Funded Debt for the
Borrower shall include all Lease Adjusted Funded Debt of
Borrower determined on a consolidated basis, plus all Lease
Adjusted Funded Debt of other Persons, which has been
guaranteed by Borrower and any Person whose financial
statements are consolidated with the Financial Statements of
Borrower or which is supported by a letter of credit issued
for the account of Borrower and any Person whose financial
statements are consolidated with the Financial Statements of
Borrower, or as to which and to the extent which Borrower
and any other Person whose financial statements are
consolidated with the Financial Statements of Borrower or
their assets have become liable for payment thereof.
"Lender" or "Lenders" means STB, the other banks and
lending institutions listed on the signature pages hereof
and each permitted assignee thereof, if any, pursuant to
Section 12.12, but shall not include any participant.
"Letter of Credit Application Agreement" means that
certain Application and Agreement for Issuance of a Letter
of Credit in the form of Exhibit D hereto or any other
similar form required by the Agent appropriately completed
by the Borrower pursuant to Section 2.02(a) herein.
"Letter of Credit Fee" means an amount equal to the
product of: (a) one quarter of one percent (.25%) per annum
multiplied by (b) the face amount of the Letter of Credit,
but in any event no less than Five Hundred Dollars ($500).
"Letters of Credit" has the same meaning as set forth
in Section 2.02 herein.
"LIBOR Rate" means the offered rates for deposits in
U.S. Dollars for the applicable Interest Rate Period,
selected by Borrower in accordance with the terms of
Section 2.04, as quoted on the Telerate System subscribed to
by Agent, and which appears on Telerate Page 3750 as of
11:00 a.m., London time, two (2) Business Days prior to the
beginning of any applicable Interest Rate Period. If any of
such one-month or two-month or three-month or six-month
rate, as the case may be, is unavailable on the Telerate
System, then such rate shall be determined by and based on
any other interest rate reporting service of generally
recognized standing designated in advance in writing by the
Agent to the Borrower.
"LIBOR Rate Option" means that rate of interest equal
to the LIBOR Rate for the applicable Interest Rate Period
plus one quarter of one percent (.25%) per annum.
"Lien" means any interest in Property securing an
obligation owed to, or a claim by, a Person other than the
owner of the Property, whether such interest is based on the
common law, statute, or contract, and including, but not
limited to, the lien or security interest arising from a
mortgage, encumbrance, pledge, security agreement,
conditional sale, or trust receipt or a lease, consignment,
or bailment for security purposes. The term "Lien" shall
include reservations, exceptions, encroachments, easements,
rights-of-way, covenants, conditions, restrictions, leases,
and other title exceptions and encumbrances affecting the
Property. For the purposes of this Agreement, Borrower shall
be deemed to be the owner of any Property that Borrower has
acquired or holds subject to a conditional sale agreement,
financing lease, or other arrangement pursuant to which
title to the Property has been retained by or vested in some
other Person for security purposes.
"Loan" or "Loans" means any borrowing by Borrower under
this Agreement, and/or any extension of credit by Lenders or
Swing Line Lender to the Borrower pursuant to this
Agreement, the Revolving Credit Loan, the Term Loan, the
Swing Line Loan, or any other Loan Document, including any
renewal, amendment, extension, or modification thereof.
"Loan Documents" means, collectively, each document or
certificate executed, furnished or delivered in connection
with this Agreement (whether before, at, or after the
Closing Date), including, without limitation, this
Agreement, the Revolving Credit Note, the Term Note, the
Swing Line Note, the Guarantees, and all other documents,
certificates, reports, and instruments that this Agreement
requires or that were executed or delivered (or both) at
Agent's request.
"Majority Lenders" means those Lenders with an
aggregate Pro Rata Share equal to or greater than 66 2/3%.
"Material" or "material" as used herein shall be
determined with respect to Borrower on a consolidated basis.
"Maturity Date" for the Revolving Credit Loan, the Term
Loan and the Swing Line Loan shall mean December 2, 2001.
"Maximum Total Amount" means: (i) with respect to the
Revolving Credit Loan, the principal amount of $75,000,000,
less the aggregate face amounts of all outstanding Letters
of Credit (which has a sublimit under Section 2.02 of
$25,000,000), less the aggregate outstanding principal
amount of the Swing Line Note; (ii) with respect to the Term
Loan, the principal amount of $50,000,000; and (iii) with
respect to the Swing Line Loan, the principal amount of
$5,000,000.
"Moody's" means Moody's Investors Services, Inc.
"PBGC" means the Pension Benefit Guaranty Corporation
and any entity succeeding to any or all of its functions
under ERISA.
"Permitted Encumbrances" means: (i) taxes, assessments,
and other governmental charges that are not delinquent or
that are being contested in good faith by appropriate
proceedings duly pursued; (ii) mechanic's, materialmen's,
contractors', landlords', or other similar Liens arising in
the ordinary course of business, securing obligations that
are not delinquent or that are being contested in good faith
by appropriate proceedings duly pursued; and (iii)
restrictions, exceptions, reservations, easements, and
restrictive covenants affecting any of Borrower's real
property and that do not materially and adversely affect
such real property.
"Person" means any individual, corporation,
partnership, joint venture, association, joint stock
company, trust, unincorporated organization, government, or
any agency or political subdivision thereof, or any other
form of entity.
"Plan" means any employee benefit or other plan
established or maintained, or to which contributions have
been made, by the Borrower or any Subsidiary and covered by
Title IV of ERISA or to which Section 412 of the Code
applies.
"Principal Office" means the principal office of the
Agent located at 201 Fourth Avenue North, Nashville,
Tennessee 37219.
"Pro Rata Share" means the percentage of interest held
by each of the Lenders as set forth opposite their
respective signatures hereto, as such percentage may be
adjusted from time to time as a result of assignments or
amendments made pursuant to this Agreement.
"Property" or "Properties" means any interest in any
kind of property or asset, whether real, personal, or mixed,
or tangible or intangible.
"Revolving Credit Advance" means an Advance under the
Revolving Credit Notes.
"Revolving Credit Loan" means the aggregate amount of
all Advances under the Revolving Credit Notes.
"Revolving Credit Loan Commitment" means, relative to
any Lender, such Lender's obligation to make Advances
pursuant to Section 2.01(a) of this Agreement.
"Revolving Credit Note" and "Revolving Credit Notes"
means, as the context may require: (a) any of the revolving
credit notes executed by the Borrower payable to the order
of any Lender, substantially in the form of Exhibit A
hereto, originally in the principal amounts each such
Lender's Pro Rata Share bears to the Maximum Total Amount
for the Revolving Credit Loan, evidencing the aggregate
indebtedness of the Borrower to such Lender resulting from
the outstanding Revolving Credit Loan, as each such
Revolving Credit Note may from time to time be amended,
increased, decreased, extended, renewed, restated, and/or
changed in any way, and all other promissory notes accepted
from time to time in amendment, renewal, payment and/or
substitution thereof and/or therefor, and/or (b)
collectively, all of the foregoing.
"S&P" means Standard & Poor's, a division of The McGraw-
Hill Companies.
"Subsidiary" means any corporation of which more than
fifty percent (50%) of the issued and outstanding Voting
Stock is owned or controlled at the time as of which any
determination is being made directly or indirectly by any
Person.
"Swing Line Lender" shall mean the Agent and its
successors and assigns.
"Swing Line Loan" means all Advances made under the
Swing Line Note up to the Swing Line Subcommitment.
"Swing Line Note" means the revolving credit note of
the Borrower, payable to the order of the Swing Line Lender,
in substantially the form of Exhibit C hereto, in the
principal amount of up to $5,000,000 issued pursuant to
Section 2.03 herein, as such may be from time to time
supplemented, modified, amended, renewed or extended.
"Swing Line Rate" shall be a rate of interest equal to
the LIBOR Rate for three-month periods plus three-tenths of
one percent (.30%) per annum. The Swing Line Rate of
interest shall fluctuate on a daily basis.
"Swing Line Subcommitment" shall mean $5,000,000.
"Term Loan" means the Advance under the Term Notes.
"Term Loan Advance" means the Advance under the Term
Notes.
"Term Loan Commitment" means, relative to any Lender,
such Lender's obligation to make an Advance pursuant to
Section 2.01(b) of this Agreement.
"Term Loan Rate" means a rate of interest equal to the
LIBOR Rate for three-month periods plus one quarter of one
percent (.25%) per annum. The Term Loan Rate shall be reset
two (2) Business Days prior to the end of the applicable
Interest Rate Period and shall be effective for the next
ensuing Interest Rate Period.
"Term Note" and "Term Notes" means, as the context may
require: (a) any of the term notes executed by the Borrower
payable to the order of any Lender, substantially in the
form of Exhibit B hereto, originally in the principal
amounts each such Lender's Pro Rate Share bears to the
Maximum Total Amount of the Term Loan, evidencing the
aggregate indebtedness of the Borrower to such Lender
resulting from the outstanding Term Loan, as each such Term
Note may from time to time be amended, increased, decreased,
extended, renewed, restated, and/or changed in any way, and
all other promissory notes accepted from time to time in
amendment, renewal, payment and/or substitution thereof
and/or therefor, and/or (b) collectively, all of the
foregoing.
"Total Capitalization" means an amount equal to the sum
of Lease Adjusted Funded Debt plus Borrower's shareholders'
equity (as determined by GAAP), all as determined on a
consolidated basis.
"Voting Stock" means securities of any class of a
corporation, the holders of which are ordinarily, in the
absence of contingencies, entitled to elect a majority of
the corporate directors (or persons performing similar
functions).
Article II. The Credit.
Section 2.01 Loan Facilities. Subject to the conditions
precedent set forth in this Agreement and pursuant to the terms
of the Loan Documents and in reliance upon the representations,
warranties, and covenants set forth in the Loan Documents,
Lenders agree to make the following loans to Borrower:
(a) The Revolving Credit Loan. In the aggregate for all
Lenders up to the Maximum Total Amount and on any Business Day
occurring prior to the Maturity Date, each Lender severally
agrees to make Revolving Credit Advances under the terms of this
Agreement (relative to such Lender) to the Borrower as evidenced
by a Revolving Credit Note equal to such Lender's Pro Rata Share
of the aggregate amount of the borrowing of total Revolving
Credit Advances requested by the Borrower to be made on such day.
(b) Term Loan. Each Lender severally agrees to make a Term
Loan Advance on March 3, 1997, under the terms of this Agreement
(relative to such Lender) to the Borrower as evidenced by the
Term Note equal to such Lender's Pro Rata Share of Fifty Million
Dollars ($50,000,000).
(c) The amount available to be advanced under the Revolving
Credit Loan shall be reduced dollar-for-dollar by the sum of: (i)
the face amount of any outstanding Letter of Credit, and (ii) the
principal amount outstanding from time to time under the Swing
Line Note. In no event shall the Borrower permit the sum of (x)
the face amount of outstanding Letters of Credit; plus (y) the
outstanding principal amount of the Swing Line Note, plus (z) the
outstanding principal amount of the Revolving Credit Notes to
exceed the Maximum Total Amount. The outstanding principal amount
of all Term Notes shall not exceed the Maximum Total Amount.
(d) On the terms and subject to the conditions hereof and
the Revolving Credit Notes, and provided no Event of Default or
Default Condition has occurred, the Borrower may borrow, repay,
and reborrow under the Revolving Credit Loan. On the terms and
subject to the conditions hereof and the Term Notes, Borrower
shall borrow Fifty Million Dollars ($50,000,000) on March 3,
1997, as the Term Loan.
(e) The failure of any Lender to make an Advance under its
Revolving Credit Loan Commitment or Term Loan Commitment shall
not relieve any other Lender of its obligations hereunder to make
Advances under such Lender's Revolving Credit Loan Commitment or
Term Loan Commitment, but no Lender shall be responsible for the
failure of any other Lender to make an Advance to be made by such
other Lender on the date of any requested Advance.
Section 2.02 Letters of Credit. (a) Provided no Event of
Default or Default Condition exists, and subject to the terms and
conditions of the Loan Documents, the Lenders have agreed that
the Agent on behalf of the Lenders will issue to third party
beneficiaries on Borrower's account, irrevocable standby letters
of credit ("Letters of Credit") in the face amount of up to
$25,000,000 in the aggregate. Agent on behalf of the Lenders
shall not be required to issue Letters of Credit in an aggregate
face amount exceeding $25,000,000. In connection with the
issuance of each Letter of Credit, the Borrower shall complete a
Letter of Credit Application Agreement, and such other
documentation in form and substance as required by Agent. The
term of any Letter of Credit shall not exceed twelve (12) months
from the date of its issuance.
(b) In connection with the issuance of any Letter of
Credit, the Borrower shall pay to Agent a Letter of Credit Fee
(payable on the date of the issuance of the Letter of Credit) to
be apportioned and paid by Agent to each of the Lenders pursuant
to the Pro Rata Share of each Lender. If the term of any Letter
of Credit is less than one (1) month, the Letter of Credit Fee
shall be calculated as if the term of the Letter of Credit was
equal to one (1) month.
(c) In connection with the issuance of any Letter of
Credit, the Borrower shall also pay to Agent a Facing Fee
(payable on the date of the issuance of the Letter of Credit)
calculated on an annual basis. None of the Lenders, except for
the Agent, shall share in the Facing Fee.
(d) The Agent agrees to use its best efforts to issue and
deliver to the Borrower each requested Letter of Credit within
three (3) Business Days following submission by Borrower of a
properly completed Letter of Credit Application Agreement.
(e) No Letter of Credit shall be issued for a term that
extends beyond the Maturity Date. The language of each Letter of
Credit, including the requirements for a draw thereunder, shall
be subject to the reasonable approval of the Agent.
(f) The face amount of any outstanding Letter of Credit
shall reduce the Borrower's ability to receive Advances under the
Revolving Credit Loan by such amount. Additionally, any payment
by Agent under a Letter of Credit shall be treated as an Advance
under the Revolving Credit Loan, and the terms and provisions of
repayment shall be treated as an Advance under the Revolving
Credit Loan.
(g) The Lenders shall participate in all Letters of Credit
requested by the Borrower under this Agreement. Each Lender
holding a Revolving Credit Note, upon issuance of a Letter of
Credit by the Agent, shall be deemed to have purchased without
recourse, a risk participation from the Agent in such Letter of
Credit and the obligations arising thereunder, in each case in an
amount equal to its Pro Rata Share of all obligations under such
Letter of Credit and shall absolutely, unconditionally, and
irrevocably assume, as primary obligor and not as surety, and be
obligated to pay to the Agent therefor and discharge when due,
its Pro Rata Share of all obligations arising under such Letter
of Credit. Without limiting the scope and nature of a Lender's
participation in any Letter of Credit, to the extent that the
Agent has not been reimbursed as required hereunder or under any
such Letter of Credit, each such Lender shall pay to the Agent
its Pro Rata Share of such unreimbursed drawing in same day funds
on the day of notification by the Agent of an unreimbursed
drawing. The obligation of each Lender to so reimburse the Agent
shall be absolute and unconditional and shall not be affected by
the occurrence of a Default Condition or an Event of Default or
any other occurrence or event.
Section 2.03 Swing Line Loan.
(a) Swing Line Subcommitment. Subject to and upon the
terms and conditions herein set forth, the Swing Line Lender
severally establishes in favor of the Borrower, its Swing
Line Subcommitment. The Swing Line Lender, subject to and
upon the terms and conditions set forth herein, from time to
time, agrees to make to the Borrower Advances under the
Swing Line Loan in an aggregate principal amount outstanding
at any time not to exceed the Swing Line Subcommitment.
Borrower shall be entitled to repay and reborrow Advances
under the Swing Line Loan in accordance with the provisions
hereof and the Swing Line Note.
(b) Amount and Terms of Swing Line Loan. Each Advance
under the Swing Line Loan shall be made from the Swing Line
Lender at the Swing Line Rate in accordance with the
borrowing procedure specified in Section 2.05(c). Each
Advance under the Swing Line Loan shall be in a principal
amount of not less than $100,000 and shall be in multiples
of $100,000 in excess thereof. The Borrower shall be
required to repay any Advance made under the Swing Line Loan
in full within thirty (30) days after such Advance is made.
(c) Repayment of Swing Line Loan by Revolving Credit
Loan. If (i) after giving effect to any request for an
Advance, the aggregate principal amount of the Revolving
Credit Loan (including the face amount of all outstanding
Letters of Credit), and the Swing Line Loan would exceed the
maximum amount of the Revolving Credit Note held by the
Swing Line Lender, or (ii) there are any outstanding
Advances under the Swing Line Loan upon the occurrence of an
Event of Default, then each Lender holding a Revolving
Credit Note hereby agrees, upon the request of the Swing
Line Lender, to make an Advance under the Revolving Credit
Loan in an amount equal to such Lender's Pro Rata Share of
the outstanding principal amount of the Swing Line Loan (the
"Refundable Swing Line Loan") outstanding on the date such
notice is given. On or before 11:00 a.m. (Nashville,
Tennessee time) on the first Business Day following receipt
by such Lender of a request to make the Advances referenced
in the preceding sentence, each such Lender (other than the
Swing Line Lender) shall deposit in an account specified by
the Agent to the Lenders from time to time the amount as
requested in same day funds, whereupon such funds shall be
immediately delivered to the Swing Line Lender (and not the
Borrower) and applied to repay the Refundable Swing Line
Loan. On the day such Advances are made by the Lenders, the
Swing Line Lender's Pro Rata Share of the Refundable Swing
Line Loan shall be deemed to be paid with the proceeds of
the Revolving Credit Advance made by the Swing Line Lender.
Upon the making of any Advance under the Revolving Credit
Loan pursuant to this subpart (c), the amount so funded
shall become due under each Lender's Revolving Credit Note
and shall no longer be owed under the Swing Line Note.
Additionally, the Applicable Rate on such Refundable Swing
Line Loan shall initially be the Base Rate Option. Each
Lender's obligation to make Advances under its Revolving
Credit Note referred to in this subpart (c) shall be
absolute and unconditional and shall not be affected by any
circumstance, happening or event whatsoever, whether or not
similar to any of the foregoing.
(d) Purchasing of Participations. In the event that
(i) the Borrower is subject to any bankruptcy or insolvency
proceedings, or (ii) if the Swing Line Lender otherwise
requests, each Lender holding a Revolving Credit Note shall
acquire without recourse or warranty, an undivided
participation interest in the Swing Line Loan equal to such
Lender's Pro Rata Share by paying to the Swing Line Lender,
in same day funds, an amount equal to such Lender's Pro Rata
Share of the Swing Line Loan. From and after the date on
which such Lender purchases an undivided participation
interest in the Swing Line Loan pursuant to this clause, the
Swing Line Lender shall distribute to such Lender
(appropriately adjusted, in the case of interest payments,
to reflect the period of time during which such Lender's
participation interest is outstanding and funded) its
ratable amount of all payments of principal and interest in
respect of the Swing Line Loan in like funds as received;
provided, however, that in the event such payment received
by the Swing Line Lender is required to be returned to the
Borrower, such Lender shall return to the Swing Line Lender
the portion of any amounts which such Lender had received
from the Swing Line Lender in like funds.
Section 2.04 Interest Rate.
(a) The Applicable Rate for Advances under the
Revolving Credit Loan shall either be the Base Rate Option
or the LIBOR Rate Option, as selected by Borrower pursuant
to the procedures specified in parts (b) and (c) below. The
Applicable Rate for Advances under the Term Loan shall be
the Term Loan Rate. The Term Loan Advance shall be for an
Interest Rate Period of three-months. The Term Loan Rate
shall be reset two (2) Business Days prior to the end of the
current Interest Rate Period, for the next ensuing Interest
Rate Period. The Applicable Rate for the Swing Line Loan
shall be the Swing Line Rate.
(b) So long as the Borrower complies with Section 2.05
herein, the Borrower may elect that any Advance under the
Revolving Credit Loan shall bear interest at either the Base
Rate Option or the LIBOR Rate Option. In the event that the
Borrower fails to designate an Applicable Rate for a
Revolving Credit Loan, or in the event the Borrower fails to
make an interest rate election in strict compliance
herewith, then it shall be conclusively presumed that the
Borrower has selected the LIBOR Rate Option with a one (1)
month Interest Rate Period for such Revolving Credit
Advance.
(c) At least two (2) Business Days prior to the
expiration of any applicable Interest Rate Period for a
Revolving Credit Loan, the Borrower shall designate a new
Applicable Rate. In the event that the Borrower fails to
designate a new Applicable Rate at least two (2) Business
Days prior to the expiration of any applicable Interest Rate
Period, then it shall be conclusively presumed that the
Borrower has selected the LIBOR Rate Option with a one (1)
month Interest Rate Period as the Applicable Rate to be
effective on the expiration of such Interest Rate Period.
(d) In the event that the Borrower selects the Base
Rate Option as the Applicable Rate for a Revolving Credit
Loan, then the Base Rate Option shall remain effective until
two (2) Business days subsequent to the date Agent receives
notice that Borrower has elected to change the Applicable
Rate for a Revolving Credit Advance to a LIBOR Rate Option.
(e) Upon the occurrence of an Event of Default, the
indebtedness described herein and all obligations hereunder
shall bear interest at the Default Rate.
(f) All interest and all fees for the issuance of
Letters of Credit shall be calculated on the basis of a 360-
day year and actual days elapsed.
Section 2.05 Borrowing Procedure. (a) In General. The
Borrower authorizes the Agent to deposit all Advances into the
Funding Account. Any one of the Persons who hold the following
titles with Borrower is authorized to request an Advance: Chief
Executive Officer, President, Chief Financial Officer, Treasurer
and Assistant Treasurer.
(b) Requests for Revolving Credit Loan. Borrower shall give
the Agent at least two (2) Business Day's prior written notice of
a proposed Advance at the LIBOR Rate Option and same day prior
written notice (by 11:00 a.m. Nashville, Tennessee time) of a
proposed Advance at the Base Rate Option, under the Revolving
Credit Loan by presentation of a Borrowing Request. Any notice
received by Borrower after 11:00 a.m. Nashville, Tennessee time
will be deemed given on the next Business Day. With regard to
requests for Advances under the Revolving Credit Loan, the
following shall apply: (a) in the event that the Borrower
designates the Base Rate Option as the Applicable Rate, the
requested Advance must be in a minimum amount of $500,000 and
increments of $100,000 in excess thereof; and (b) in the event
the Borrower designates the LIBOR Rate Option as the requested
Applicable Rate, the requested Advance must be in a minimum
amount of $2,500,000 and increments of $500,000 in excess
thereof. Agent shall give notice to Lenders of a request for an
Advance by 1:00 p.m. (Nashville, Tennessee time) on the date of
such request, and each Lender shall wire immediately available
funds to Agent by 2:00 p.m. (Nashville, Tennessee time) the date
of the requested Advance.
(c) Swing Line Note. Borrower may give the Agent oral
notice of a request for an Advance under the Swing Line Note no
later than 11:00 A.M. (Nashville, Tennessee time) followed by
facsimile transmission sent to Agent. Borrower shall specify that
such request is a request under the Swing Line Note, and subject
to availability under the Swing Line Note and provided the
request is made no later than 11:00 A.M. (Nashville, Tennessee
time), the Agent shall make the Advance by crediting the Funding
Account no later than the close of business on the day of the
borrowing. With regard to requests for Advances under the Swing
Line Loan, the following shall apply: Advances shall be in a
minimum amount of $100,000 and increments of $100,000 in excess
thereof.
(d) No Liability. The Agent and the Lenders shall have no
liability to Borrower arising out of their compliance with the
borrowing procedure specified in this Section 2.05, except for
acts of gross negligence or willful misconduct.
(e) Warranty. The request by the Borrower of an Advance
shall constitute a warranty by the Borrower that as of the date
of the request and as of the date the Advance is made: (i) no
Event of Default or Default Condition has occurred; and (ii) the
representations and warranties contained in Article III of this
Agreement remain true, correct, and accurate.
Section 2.06 Use of Proceeds. Proceeds of the Revolving
Credit Loan and the Swing Line Loan shall be used to fund
Borrower's working capital, acquisitions, capital expenditures
needs and for Borrower's general corporate purposes. Proceeds of
the Term Loan shall be used to repay and to cancel all
outstanding amounts owed to STB under that certain $50,000,000
promissory note dated November 22, 1996.
Section 2.07 Participation. Any Lender shall have the right
to enter into one or more participation agreements with one or
more of its Affiliates. Subject to Borrower's approval under
Section 12.12(d), each Lender shall have the right to enter into
one or more participation agreements with one or more banks, or
financial institutions which are not Affiliates of such Lender,
on such terms and conditions as such Lender shall deem advisable.
Notwithstanding any provisions of this section or Section
12.12(d), a Lender shall have the right to enter into one or more
participation agreements without the consent of Borrower, if an
Event of Default exists and is continuing. Borrower shall furnish
a sufficient number of copies of reports and certificates to
Lenders so that Lenders and each participating lender shall
receive a copy of each such document.
Section 2.08 Term of This Agreement. This Agreement shall
mature and all amounts under this Agreement, the Revolving Credit
Note, the Term Note and the Swing Line Note shall be due and
payable on the Maturity Date. This Agreement shall be binding
upon the Borrower so long as any portion of the indebtedness
described herein remains outstanding, provided and except,
Borrower's representations, warranties, and indemnity agreements
shall survive the payment in full of such indebtedness.
Section 2.09 Payments to Principal Office; Debit Authority.
Each payment under the Revolving Credit Loan and Term Loan shall
be made without defense, setoff, or counterclaim to Agent at its
Principal Office in U.S. Dollars for the account of Lenders and
in immediately available funds before 11:00 a.m. (Nashville,
Tennessee time) on the date such payment is due. The Agent may,
but shall not be obligated to, debit the amount of any such
payment which is not made by such time to any deposit account of
the Borrower with the Agent. Each payment under the Swing Line
Loan shall be made to Agent at its Principal Office in U.S.
Dollars and in immediately available funds before 11:00 a.m.
(Nashville, Tennessee time) on the date such payment is due.
Payments received after 11:00 a.m. (Nashville, Tennessee time)
will be deemed received on the next Business Day. Agent shall
wire, in immediately available funds, each such payment to
Lenders by 2:00 p.m. (Nashville, Tennessee time) on the date
payments are received.
Section 2.10 Prepayment.
(a) Required Prepayment. Whenever the aggregate
amount outstanding under the Revolving Credit Loan or Term
Loan (as applicable) exceeds the Maximum Total Amount, the
Borrower shall immediately pay to Lenders such amounts as
may be necessary to cause the aggregate principal amount
outstanding under the Revolving Credit Loan or Term Loan (as
applicable) to be equal to or less than the Maximum Total
Amount. Whenever the amount outstanding under the Swing Line
Note exceeds the Maximum Total Amount permitted to be
outstanding under the Swing Line Loan, the Borrower shall
immediately pay to Agent such amounts as may be necessary to
cause the principal amount outstanding under the Swing Line
Note to be equal to or less than the Maximum Total Amount
permitted to be outstanding under the Swing Line Loan;
(b) Optional Prepayment. The Borrower may prepay the
Revolving Credit Loan and Swing Line Loan as follows:
(i) The Borrower may prepay the Swing Line
Loan (provided that such reduction shall be in a
principal amount of at least $100,000 and integral
multiples of $100,000 in excess thereof) by written
notice delivered to Agent no later than 11:00 a.m. on
the date of such prepayment;
(ii) Borrower may prepay Advances under the
Revolving Credit Notes which bear interest at the Base
Rate Option (provided that such reduction shall be in a
principal amount of at least $100,000 and integral
multiples of $100,000 in excess thereof) by written
notice delivered to Agent no later than 11:00 a.m. on
the date of such prepayment and Agent shall give notice
to Lenders by 2:00 p.m. on the date of such prepayment;
(iii) Borrower shall not have the right and
option to prepay Advances under the Revolving Credit
Notes bearing interest at the LIBOR Rate Option until
the expiration of the applicable Interest Period for
such Advance.
All prepayments will be applied first to unpaid expenses (if
any), then to accrued interest, then to principal.
(c) Permanent Prepayments. The Borrower may
permanently prepay the Term Loan or permanently reduce the
Revolving Credit Loan as follows:
(i) Upon ten (10) days prior written notice
delivered from Borrower to Agent, the Borrower may
permanently reduce the maximum principal amount that
may be borrowed under the Revolving Credit Loan;
provided that such reduction shall be in a principal
amount of at least $2,500,000 and integral multiples of
$2,500,000 in excess thereof, and provided that such
reduction shall not reduce an outstanding Revolving
Credit Advance with a LIBOR Rate Option until the
expiration of the applicable Interest Period for such
Advance. In the event that a permanent reduction is
made by the Borrower in the amount that may be borrowed
under the Revolving Credit Loan, the Maximum Total
Amount for the Revolving Credit Loan and the Revolving
Credit Loan Commitment shall be reduced accordingly.
Agent shall notify Lenders of a prepayment under this
subsection within one Business Day after receipt of
notice.
(ii) Upon ten (10) days prior written notice
delivered from Borrower to Agent, the Borrower may
permanently prepay all or a part of the Term Loan;
provided that, such reduction shall be in a principal
amount of at least $5,000,000 and integral multiples of
$5,000,000 in excess thereof. Notwithstanding any
provision in this Section 2.10 to the contrary,
Borrower cannot prepay a Term Loan until the end of the
applicable Interest Period. Agent shall notify Lenders
of a prepayment under this subsection within one
Business Day after receipt of notice.
Section 2.11 Apportionment of Payments. Aggregate principal
and interest payments with respect to Advances under the
Revolving Credit Loan and/or the Term Loan shall be apportioned
among all outstanding Revolving Credit Loan Commitments and Term
Loan Commitments to which such payments relate proportionately to
the Lenders' respective Pro Rata Share of such Revolving Credit
Loan Commitments and Term Loan Commitments. In the event the
Agent receives payment under the Revolving Credit Loan and/or
Term Loan by 11:00 A.M. (Nashville, Tennessee time), then the
Agent shall distribute to each Lender its share of all such
payments received by the Agent no later than 2:00 P.M.
(Nashville, Tennessee time) on the date of Agent's receipt of
such payments. Payments received subsequent to 11:00 A.M.
(Nashville, Tennessee time) shall be treated as received on the
next succeeding Business Day. Payments received by Agent for the
Swing Line Loan shall not be apportioned, but shall be delivered
to the Swing Line Lender.
Section 2.12 Sharing of Payments, Etc. If any Lender shall
obtain any payment or reduction (including, without limitation,
any amounts received as adequate protection of a deposit treated
as cash collateral under the Bankruptcy Code) of the indebtedness
relating to Advances under the Revolving Credit Loan (whether
voluntary, involuntary, through the exercise of any right of set-
off or otherwise) in excess of its Pro Rata Share of payments or
reductions of the Revolving Credit Loan, such Lender shall
forthwith (a) notify each of the other Lenders and Agent of such
receipt, and (b) purchase from the other Lenders such
participations in the Revolving Credit Loan as shall be necessary
to cause such purchasing Lender to share the excess payment or
reduction, net of costs incurred in connection therewith, ratably
with each of them, provided that if all or any portion of such
excess payment or reduction is thereafter recovered from such
purchasing Lender or additional costs are incurred, the purchase
shall be rescinded and the purchase price restored to the extent
of such recovery or such additional costs, but without interest
unless the Lender obligated to return such funds is required to
pay interest on such funds. Borrower agrees that any Lender so
purchasing a participation from another Lender pursuant to this
Section 2.12 may, to the fullest extent permitted by law,
exercise all its rights of payment (including the right of set-
off) with respect to such participation as fully as if such
Lender were the direct creditor of the Borrower in the amount of
such participation.
Section 2.13 Right of Offset, Etc. The Borrower hereby
agrees that, in addition to (and without limitation of) any right
of set-off, banker's lien or counterclaim the Lenders may
otherwise have, the Lenders shall be entitled, at their option,
to offset balances held by any of them at any of their offices
against any principal of or interest on the indebtedness
described herein which is not paid when due by reason of a
failure by the Borrower to make any payment when due to such
Lender (regardless whether such balances are then due to the
Borrower), in which case such offsetting Lender shall promptly
notify the Borrower, provided that its failure to give such
notice shall not affect the validity thereof.
Section 2.14 Commitment Fee. Commencing on March 31, 1997
and on the last day of each Fiscal Quarter thereafter and on the
Maturity Date, the Borrower shall pay to the Agent for
distribution to the Lenders based on their Pro Rata Share, a
commitment fee equal to one-tenth of one percent (.10%) per annum
calculated on the average unused portion of the Revolving Credit
Loan for the preceding Fiscal Quarter (or portion thereof);
provided that the payment made on March 31, 1997 shall be for a
time period from the Closing Date to March 31, 1997. The
commitment fee shall be calculated based on a year of 360 days
for the actual number of days elapsed.
Section 2.15 Usury. The parties to this Agreement intend to
conform strictly to applicable usury laws as presently in effect.
Accordingly, if the transactions contemplated hereby would be
usurious under applicable law (including the laws of the United
States of America and the State of Tennessee), then, in that
event, notwithstanding anything to the contrary in any Loan
Document or agreement executed in connection with the
indebtedness described herein, Borrower, Agent, and Lenders agree
as follows: (i) the aggregate of all consideration that
constitutes interest under applicable law which is contracted
for, charged, or received under any of the Loan Documents or
agreements, or otherwise in connection with the indebtedness
described herein, shall under no circumstance exceed the maximum
lawful rate of interest permitted by applicable law, and any
excess shall be credited on the indebtedness by the holder
thereof (or, if the indebtedness described herein shall have been
paid in full, refunded to Borrower); and (ii) in the event that
the maturity of the indebtedness described herein is accelerated
as a result of any Event of Default or otherwise, or in the event
of any required or permitted prepayment, then such consideration
that constitutes interest may never include more than the maximum
amount of interest permitted by applicable law, and excess
interest, if any, for which this Agreement provides, or
otherwise, shall be cancelled automatically as of the date of
such acceleration or prepayment and, if previously paid, shall be
credited on the indebtedness described herein (or, if the
indebtedness shall have been paid in full, refunded to Borrower).
Section 2.16 Interest Rate Not Ascertainable, Etc. In the
event that the Agent shall in good faith have determined that on
any date for determining the LIBOR Rate, by reason of any changes
arising after the date of this Agreement affecting the London
interbank market or the Agent's position in such market, adequate
and fair means do not exist for ascertaining the applicable
interest rate on the basis provided for in the definition of
LIBOR Rate, then, and in any such event, the Agent shall
forthwith give notice (by telephone confirmed in writing) to the
Borrower of such determination and a summary of the basis for
such determination. At the expiration of any Interest Rate Period
then in effect and until the Agent notifies the Borrower that the
circumstances giving rise to the suspension described herein no
longer exist (which notice shall be given forthwith after such
determination is made by the Agent), all Loans shall bear
interest at the Base Rate Option.
Section 2.17 Illegality. (a) In the event that the Agent
shall have determined any time that the making or continuance of
any Advance bearing interest at the LIBOR Rate Option has become
unlawful by compliance by any Lender (an "Affected Lender") in
good faith with any applicable law, governmental rule,
regulation, guideline or order (whether or not having the force
of law and whether or not failure to comply therewith would be
unlawful), then, in any such event, the Agent shall give prompt
notice (by telephone confirmed in writing) to the Borrower of
such determination and a summary of the basis for such
determination.
(b) Upon the giving of the notice to the Borrower referred
to in Section 2.17(a), the Borrower's right to elect a LIBOR Rate
Option shall be immediately suspended, and all outstanding
Advances made by the Affected Lender shall bear interest at the
Base Rate Option after the current Interest Period has expired.
The Borrower shall have the right and option to replace the
Affected Lender pursuant to Section 12.13 hereof, for so long as
the Affected Lender which remains under the disability described
in Section 2.17(a), has not been replaced.
Section 2.18 Increased Costs. (a) If by reason of (i) after
the date hereof, the introduction of or any change (including,
without limitation, any change by way of imposition or increase
of reserve requirements) in or in the interpretation of any law
or regulation, or (ii) the compliance with any guideline or
request from any central bank or other governmental authority or
quasi-governmental authority exercising control over banks or
financial institutions generally (whether or not having the force
of law):
(A) the Agent or any Lender shall be subject to any
tax, duty or other charge with respect to any Advances
bearing interest at the LIBOR Rate Option (all such Advances
being collectively referred to as the "LIBOR Loans") or its
obligation to make LIBOR Loans, or the basis of taxation of
payments to the Agent or any Lender of the principal of or
interest on its LIBOR Loans or its obligation to make LIBOR
Loans shall have changed (except for changes in the tax on
the overall net income of the Agent or such Lender, or
similar taxes, pursuant to the laws of jurisdictions with
taxing authority over the Agent or such Lender); or
(B) any reserve (including, without limitation, any
reserve imposed by the Board of Governors of the Federal
Reserve System), special deposit or similar requirement
against assets of, deposits with or for the account of, or
credit extended by, the Agent or any Lender shall be imposed
or deemed applicable or any other condition affecting its
LIBOR Loans or its obligation to make LIBOR Loans shall be
imposed on the Agent or any Lender or the London interbank
market;
and as a result thereof there shall be any increase in the cost
to the Agent or such Lender (a "LIBOR Affected Lender") of
agreeing to make or making, funding or maintaining LIBOR Loans
(except to the extent already included in the determination of
the interest rate for LIBOR Loans), or there shall be a reduction
in the amount received or receivable by the Agent or any LIBOR
Affected Lender, then the Borrower shall from time to time, upon
written notice from and demand in good faith by the Agent, pay to
the Agent for the account of the Lenders (or any LIBOR Affected
Lender) within five (5) Business Days after the date of such
notice and demand, additional amounts sufficient to indemnify the
Agent or such LIBOR Affected Lender against such increased cost;
provided, however, that nothing in this section shall require
Borrower to indemnify the Agent or any Lender for withholding
taxes; provided that Borrower shall have the right and option to
replace a LIBOR Affected Lender pursuant to the terms of Section
12.13 hereof.
(b) If the Agent shall in good faith determine that at any
time, because of the circumstances described in Section
2.18(a)(i) or (ii) arising after the date of this Agreement
affecting the Agent or any Lender or the London interbank market
or the Agent or any Lender's position in such market, the
calculations for the interest rates for LIBOR Loans as determined
by the Agent or any Lender will not adequately and fairly reflect
the cost to the Agent or any Lender of funding such LIBOR Loans,
the Agent shall forthwith give notice (by telephone confirmed in
writing) to the Borrower of such advice, and a summary of the
basis for such determination, and then, and in any such event and
until Agent notifies the Borrower that such circumstances no
longer exist (which notice shall be given forthwith after such
determination is made by the Agent):
(i) The Borrower's right to request, and the Agent's
and any Lender's obligation to make or permit portions of
the indebtedness described herein to remain outstanding past
the last day of the then current Interest Rate Period as
LIBOR Loans shall be immediately suspended; and
(ii) After the last day of the then-current Interest
Rate Period, all indebtedness described herein shall bear
interest at the Base Rate Option.
Section 2.19 Mitigation. Each Lender shall take such
commercially reasonable steps as it may determine are not
disadvantageous to it, including changes in lending offices to
the extent feasible, in order to reduce additional payments by
the Borrower pursuant to Section 2.18 and to make the LIBOR Rate
Option available under Sections 2.17 and 2.18 hereof.
Article III. Representations and Warranties.
To induce Lenders to enter this Agreement and extend credit
under this Agreement, the Borrower covenants, represents and
warrants to Lenders that as of the date hereof:
Section 3.01 Corporate Existence. The Borrower and its
Subsidiaries are corporations duly organized, legally existing,
and in good standing under the laws of the states of their
incorporation, and are duly qualified as foreign corporations in
all jurisdictions in which the Property owned or the business
transacted by them makes such qualification necessary, except
where failure to so qualify does not have a material adverse
effect upon the Borrower, its Subsidiaries, their business, or
their Properties, as a whole on a consolidated basis.
Section 3.02 Power and Authorization. The Borrower and each
of the Guarantors, as applicable, are duly authorized and
empowered to execute, deliver, and perform under all Loan
Documents; the board of directors of the Borrower (and each
Guarantor, as applicable) has authorized the execution and
performance of the Loan Documents; and all other corporate action
on Borrower's (and Guarantors') part required for the due
execution, delivery, and performance of the Loan Documents has
been duly and effectively taken.
Section 3.03 Binding Obligations. This Agreement is, and the
Loan Documents when executed and delivered in accordance with
this Agreement will be, legal, valid and binding upon and against
the Borrower (and the Guarantors, as applicable), enforceable in
accordance with their terms, subject to no defense, counterclaim,
set-off, or objection of any kind.
Section 3.04 No Legal Bar or Resultant Lien. The Borrower's
(and the Guarantors', as applicable) execution, delivery and
performance of the Loan Documents do not constitute a default
under, and will not violate any provisions of the articles of
incorporation (or charter), or bylaws of the Borrower (or the
Guarantors), or any contract, agreement, law, regulation, order,
injunction, judgment, decree, or writ to which the Borrower (or
the Guarantors) are subject, or result in the creation or
imposition of any Lien upon any Properties of the Borrower (or
the Guarantors).
Section 3.05 No Consent. The Borrower's and the Guarantors',
as applicable, execution, delivery, and performance of the Loan
Documents do not require the consent or approval of any other
Person.
Section 3.06 Financial Condition. The Financial Statements
of Borrower which have been delivered to Lenders dated August 2,
1996 have been prepared in accordance with GAAP consistently
applied, and the Financial Statements present fairly the
financial condition of Borrower as of the date or dates and for
the period or periods stated therein. No material adverse change
in the financial condition of the Borrower has occurred since the
date of such Financial Statements.
Section 3.07 Investments, Advances, and Guarantees. Except
for advances to, investments in or guaranties of its
Subsidiaries, neither the Borrower nor the Guarantors have made
investments in, advances to, or guaranties of the obligations of
any Person, or committed or agreed to undertake any of these
actions or obligations, except as referred to or reflected in the
Financial Statements.
Section 3.08 Liabilities and Litigation. Neither the
Borrower nor its Subsidiaries have material liabilities
(individually or in the aggregate) direct or contingent which
would require adjustment to or disclosure in the Financial
Statements, except as referred to or reflected in the Financial
Statements. There is no litigation, legal or administrative
proceeding, investigation, or other action of any nature pending
or, to the knowledge of Borrower threatened against or affecting
the Borrower or the Subsidiaries, that involves the possibility
of any judgment or liability not fully covered by insurance and
that may materially and adversely affect the business or the
Properties of the Borrower or the Subsidiaries, or their ability
to carry on their business as now conducted.
Section 3.09 Taxes; Governmental Charges. The Borrower and
its Subsidiaries have filed or caused to be filed all tax returns
and reports required to be filed and has paid all taxes,
assessments, fees, and other governmental charges levied upon it
or upon any of their Properties or income, which are due and
payable. The Borrower and its Subsidiaries have made all required
withholding deposits.
Section 3.10 No Default. Neither the Borrower nor its
Subsidiaries is in default in any respect that materially and
adversely affects their business, Properties, operations, or
condition, financial or otherwise, under any indenture, mortgage,
deed of trust, credit agreement, note, agreement, or other
instrument to which they are a party or by which their Properties
are bound. Neither the Borrower nor the Subsidiaries are in
violation of their respective Articles of Incorporation (or
Charter) or Bylaws. No Default Conditions hereunder have occurred
or are continuing as of the date hereof.
Section 3.11 Compliance with Laws, Etc. Neither the Borrower
nor its Subsidiaries are in violation of any law, judgment,
decree, order, ordinance, or governmental rule or regulation to
which they or any of their Properties is subject in any respect
that materially and adversely affects their business, Properties,
or financial condition. Neither the Borrower nor its Subsidiaries
have failed to obtain any license, permit, franchise, or other
governmental authorization necessary to the ownership of their
Properties or to the conduct of their business, which if not
obtained would have or has a material, adverse effect on the
Borrower and its Subsidiaries, as a whole.
Section 3.12 ERISA. The Borrower and its Subsidiaries are in
compliance in all material respects with the applicable
provisions of ERISA. Neither the Borrower nor its Subsidiaries
have incurred any "accumulated funding deficiency" within the
meaning of ERISA which is material, and they have not incurred
any material liability to PBGC in connection with any Plan.
Section 3.13 No Material Misstatements. No information,
exhibit, or report furnished or to be furnished by Borrower (or
Guarantors) to Lender in connection with this Agreement, contains
any material misstatement of fact or fails to state any material
fact, the omission of which would render the statements therein
materially false or misleading.
Section 3.14 Regulation U. Neither the Borrower nor any of
its Subsidiaries are engaged as one of its important activities,
in the business of extending credit for the purpose of purchasing
or carrying "margin stock" within the meaning of Regulation U of
the Board of Governors of the Federal Reserve System. No part of
the indebtedness described herein shall be used at any time to
purchase or to carry margin stock within the meaning of
Regulation U or to extend credit to others for the purpose of
purchasing or carrying any margin stock if to do so would cause
the Lenders to violate the provisions of Regulation U.
Section 3.15 Filings. To the date hereof, the Borrower has
filed all reports and statements required to be filed with the
Securities and Exchange Commission. As of their respective dates,
the reports and statements referred to above complied in all
material respects with all rules and regulations promulgated by
the Securities and Exchange Commission and did not contain any
untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which
they were made, not misleading.
Section 3.16 Title, Etc. The Borrower and its Subsidiaries
have good title to their Properties, free and clear of all Liens
except those referenced or reflected in the Financial Statements,
and except for any defects in title which would not have a
material adverse effect on the business, Properties, financial
condition or operations of the Borrower and its Subsidiaries (as
a whole, on a consolidated basis) or on the ability of the
Borrower to perform its obligations under this Agreement.
Borrower and its Subsidiaries possess all trademarks, copyrights,
trade names, patents, licenses, and rights therein, adequate for
the conduct of their business as now conducted, except for such
that would not have a material adverse effect on the business,
Properties, financial condition or operations of the Borrower
(and its Subsidiaries) or on the ability of the Borrower (as a
whole, on a consolidated basis) to perform its obligations under
this Agreement.
Section 3.17 Personal Holding Company; Subchapter S.
Neither the Borrower nor any of its Subsidiaries are "personal
holding companies" as defined in Section 542 of the Code, and
neither the Borrower nor any of its Subsidiaries are "Subchapter
S" corporations within the meaning of the Code.
Section 3.18 Subsidiaries. As of the Closing Date, Borrower
has only the following Subsidiaries: CBOCS West, Inc.; CBOCS
Distribution, Inc.; Cracker Barrel Old Country Store TV, Inc.;
CBOCS Sierra, Inc.; CBOCS Michigan, Inc.; and Rocking Chair, Inc.
Article IV. Conditions Precedent.
Section 4.01 Initial Conditions. Lenders' obligation to
extend credit and to issue any Letter of Credit, and Swing Line
Lender's obligation to make an Advance under the Swing Line Loan
hereunder is subject to the Conditions Precedent that Agent shall
have received (or agreed in writing to waive or defer receipt of)
all of the following, each duly executed, dated and delivered as
of the date hereof, in form and substance satisfactory to Agent
and its counsel:
(a) Notes and Loan Documents. This Agreement, the
Revolving Credit Notes, the Term Notes, the Swing Line Note,
the Guarantees of each of the Guarantors, any Letter of
Credit Application Agreements, and other documents executed
in connection with this Agreement (the "Loan Documents").
(b) Resolutions. Certified copies of resolutions of
the Board of Directors of the Borrower and each Guarantor,
authorizing or ratifying the execution, delivery, and
performance, respectively, of Loan Documents.
(c) Certificate of Existence. A certificate of
existence of the Borrower and each Guarantor from the state
in which the Borrower and such Guarantor is incorporated or
organized, which certificate shall contain no facts
reasonably objectionable to Agent.
(d) Consents, Etc. Certified copies of all documents
evidencing any necessary corporate action, consents, and
governmental approvals (if any) with respect to this
Agreement and the Loan Documents.
(e) Officer's Certificate. A certificate of the
secretary or any assistant secretary of the Borrower and
each Guarantor certifying: (i) the names of the officer or
officers of the Borrower and the Guarantor authorized to
sign the applicable Loan Documents, together with a sample
of the true signature of such officer(s), and (ii) as to
representations and warranties of, and litigation involving,
the Borrower and the Guarantor.
(f) Charter and By-Laws and Organizational Documents.
A copy of the Borrower's (and each Guarantor's) by-laws and
charter or articles of incorporation (including all
amendments thereto) certified by the secretary or any
assistant secretary of the Borrower (and the Guarantor), and
in the case of the charter or articles of incorporation, by
the Secretary of State of the state in which the Borrower
(or Guarantor) is incorporated, as being true and complete
copies of the current charter or articles of incorporation
and by-laws of the Borrower (or Guarantor).
(g) Attorneys Opinion Letter. An opinion letter from
counsel to the Borrower and the Guarantor opining as to such
matters as reasonably required by Agent.
(h) Payment of Fees, Etc. Payment of all outstanding
fees and expenses to Agent, Swing Line Lender, or any
Lender, including all of Agent's reasonable legal fees.
(i) Other. Such other documents as Agent may
reasonably request.
Section 4.02 All Borrowings. The Lenders' obligation to
extend credit pursuant to this Agreement and to issue any Letter
of Credit and Swing Line Lender's obligation to make an Advance
under the Swing Line Loan is subject to the following additional
Conditions Precedent which shall be met each time an Advance
(including the request for the issuance of a Letter of Credit) is
requested:
(a) The representations of the Borrower contained in
Article III are true and correct as of the date of the
requested Advance, with the same effect as though made on
the date of such Advance; (b) There has been no material
adverse change in the Borrower's consolidated financial
condition since the date of the last borrowing hereunder;
(c) No Default Condition or Event of Default has occurred
and continues to exist; (d) No material litigation
(including, without limitation, derivative actions),
arbitration proceedings or governmental proceedings not
disclosed in writing by the Borrower to the Agent prior to
the date of the execution and delivery of this Agreement is
pending or known to be threatened against the Borrower
(and/or the Guarantors) and no material development not so
disclosed has occurred in any litigation, arbitration
proceedings or governmental proceedings so disclosed, which
could reasonably be expected to materially and adversely
affect the financial position or business of the Borrower
(and/or the Guarantors) or impair the ability of the
Borrower (and/or the Guarantors) to perform its obligations
under this Agreement or any other Loan Documents, as
applicable.
Article V. Affirmative Covenants.
The Borrower covenants that, during the term of this
Agreement (including any extensions hereof) and until all
indebtedness described herein shall have been finally paid in
full, unless Agent shall otherwise first consent in writing, the
Borrower shall:
Section 5.01 Financial Statements and Reports. Promptly
furnish to Agent and to each Lender:
(a) Annual Reports. As soon as available, and in any
event within ninety (90) days after the close of each Fiscal
Year of the Borrower, the audited consolidated Financial
Statements of the Borrower setting forth the audited
consolidated balance sheets of the Borrower as at the end of
such year, and the audited consolidated statements of
income, statements of cash flows, and statements of
stockholders' equity of the Borrower for such year, setting
forth in each case in comparative form (beginning when
comparative data are available) the corresponding figures
for the preceding Fiscal Year accompanied by the report of
the Borrower's certified public accountants. The audit
opinion in respect of the Financial Statements of the
Borrower shall be the opinion of a firm of independent
certified public accountants among the "Big Six" accounting
firms;
(b) Quarterly and Year-to-Date Reports. As soon as
available and in any event within forty-five (45) days after
the end of each Fiscal Quarter, the consolidated unaudited
balance sheets of the Borrower as of the end of such Fiscal
Quarter, and the consolidated unaudited statements of income
and cash flow of the Borrower for such quarter and for a
period from the beginning of the Fiscal Year to the close of
such Fiscal Quarter, all certified by the chief financial
officer or chief accounting officer of the Borrower as being
true and correct to the best of his or her knowledge,
subject to ordinary year-end accounting adjustments;
(c) Compliance Reports. As soon as available and in
any event within ninety (90) days after the close of the
Fiscal Year and within forty-five (45) days after the end of
each Fiscal Quarter (other than the fourth Fiscal Quarter of
each Fiscal Year), the calculations by Borrower of the
financial covenants contained in Article VII herein, along
with a certificate of compliance (in substantially the form
as Exhibit G), certified by the president or chief financial
officer of the Borrower stating that such officer has no
knowledge of any Event of Default or Default Condition, or
if such officer has obtained such knowledge, disclosing the
nature, details, and period of existence of such event;
(d) SEC Filings and Public Information. At the same
time as they are filed with the Securities and Exchange
Commission, copies of the Borrower's 10-Q and 10-K reports;
and
(e) Other Information. Promptly upon its becoming
available, such other material information about Borrower,
the Guarantors or the indebtedness described herein as Agent
may reasonably request from time to time.
All such balance sheets and other Financial Statements referred
to in Sections 5.01(a) and (b) hereof shall conform to GAAP on a
basis consistent with those of previous Financial Statements.
Section 5.02 Annual Certificates of Compliance. Concurrently
with the furnishing of the annual Financial Statements pursuant
to Section 5.01(a) hereof, furnish or cause to be furnished to
Agent and each Lender a certificate of compliance in a form
reasonably satisfactory to Agent prepared by independent
certified public accountants acceptable to Agent, stating that in
making the examination necessary for their audit they have
obtained no knowledge of any Default Condition or Event of
Default, or event which, after notice or lapse of time (or both),
would constitute a Default Condition or Event of Default or, if
they have obtained such knowledge, disclosing the nature,
details, and period of existence of such event.
Section 5.03 Taxes and Other Liens. Pay and discharge
promptly all taxes, assessments, and governmental charges or
levies imposed upon the Borrower or its Subsidiaries, or upon any
of their income or Property as well as all claims of any kind
(including claims for labor, materials, supplies, and rent)
which, if unpaid, might become a Lien upon any or all of their
Property; provided, however, that neither the Borrower nor any
Subsidiary shall be required to pay any such tax, assessment,
charge, levy, or claim if the amount, applicability, or validity
thereof shall currently be contested in good faith by appropriate
proceedings diligently conducted and if the Borrower (or the
Subsidiary, as applicable) shall establish reserves therefor
adequate under GAAP.
Section 5.04 Maintenance.
(a) Maintain its and its Guarantors' corporate
existence, name, rights, and franchises;
(b) observe and comply (to the extent necessary so
that any failure will not materially and adversely affect
the business or Property of the Borrower or the Guarantors)
with all applicable laws, statutes, codes, acts, ordinances,
orders, judgments, decrees, injunctions, rules, regulations,
certificates, franchises, permits, licenses, authorizations,
and requirements of all federal, state, county, municipal,
and other governments; and
(c) maintain its Property and the Property of its
Guarantors (and any Property leased by or consigned to them
or held under title retention or conditional sales
contracts) in good and workable condition at all times and
make all repairs, replacements, additions, and improvements
to their Property reasonably necessary and proper to ensure
that the business carried on in connection with their
Property may be conducted properly and efficiently at all
times.
Section 5.05 Further Assurances. Promptly cure any defects
in the creation, issuance, and delivery of the Loan Documents.
Borrower at its expense promptly will execute and deliver to
Agent upon request all such other and further documents,
agreements, and instruments in compliance with or accomplishment
of the covenants and agreements of Borrower in the Loan
Documents, or to correct any omissions in the Loan Documents, all
as may be reasonably necessary or appropriate in connection
therewith.
Section 5.06 Performance of Obligations.
(a) Pay the indebtedness described herein according to
the terms of the Loan Documents; and
(b) do and perform, and cause to be done and to be
performed, every act and discharge all of the obligations
provided to be performed and discharged by Borrower under
the Loan Documents, at the time or times and in the manner
specified.
Section 5.07 Insurance. Maintain and continue to maintain,
and cause each Subsidiary to maintain and continue to maintain,
with financially sound and reputable insurers, insurance
satisfactory in type, coverage and amount to Agent against such
liabilities, casualties, risks, and contingencies and in such
types and amounts as is customary in the case of corporations
engaged in the same or similar businesses and similarly situated.
Upon request of Agent, Borrower will furnish or cause to be
furnished to Agent from time to time a summary of the insurance
coverage of Borrower (or its Subsidiaries) in form and substance
satisfactory to Agent and if requested will furnish Agent copies
of the applicable policies.
Section 5.08 Accounts and Records. Keep books of record and
account, in which full, true, and correct entries will be made of
all dealings or transactions in accordance with GAAP, except only
for changes in accounting principles or practices with which
Borrower's certified public accountants concur.
Section 5.09 Right of Inspection. Permit any officer,
employee, or agent of Agent or any Lender as may be designated by
Agent to visit and inspect any of the Properties of the Borrower
and the Guarantors, to examine Borrower's (or Guarantors') books
of record and accounts, to take copies and extracts from such
books of record and accounts, and to discuss the affairs,
finances, and accounts of Borrower (or of the Guarantors) with
the respective officers, accountants, and auditors of Borrower
(or of the Guarantors), all at such reasonable times and as often
as Agent may reasonably desire. Notwithstanding the foregoing
provisions of this Section, Wachovia and First Chicago (and their
Affiliates) shall have the right of inspection as set forth in
this Section without any requirement of approval or designation
by Agent.
Section 5.10 Notice of Certain Events. Promptly, but in any
case within five (5) Business Days, notify Agent if the Borrower
learns of the occurrence of (i) any event that constitutes a
Default Condition or Event of Default together with a detailed
statement by a responsible officer of the steps being taken as a
result thereof; or (ii) the receipt of any notice from, or the
taking of any other action by, the holder of any promissory note,
debenture, or other evidence of material Debt of the Borrower (or
a Guarantor) with respect to a claimed default, together with a
detailed statement by a responsible officer of the Borrower
specifying the notice given or other action taken by such holder
and the nature of the claimed default and what action the
Borrower is taking or proposes to take with respect thereto; or
(iii) any legal, judicial, or regulatory proceedings affecting
Borrower (or a Guarantor) in which the amount involved is
material and is not covered by insurance or which, if adversely
determined, would have a material and adverse effect on the
business or the financial condition of the Borrower and the
Guarantors as a whole; or (iv) any dispute between the Borrower
(or a Guarantor) and any governmental or regulatory authority or
any other Person, entity, or agency which, if adversely
determined, might materially interfere with the normal business
operations of the Borrower (or a Guarantor); or (v) any material
adverse changes, either individually or in the aggregate, in the
assets, liabilities, financial condition, business, operations,
affairs, or circumstances of the Borrower from those reflected in
the Financial Statements or from the facts warranted or
represented in any Loan Document.
Section 5.11 ERISA Information and Compliance. Comply with
ERISA and all other applicable laws governing any pension or
profit sharing plan or arrangement to which the Borrower or any
Subsidiary is a party. The Borrower shall provide Agent with
notice of any "reportable event" or "prohibited transaction" or
the imposition of a "withdrawal liability" within the meaning of
ERISA.
Section 5.12 Additional Guarantees. Within thirty (30) days
after the Borrower acquires or creates a Subsidiary (other than
an Excluded Subsidiary), the Borrower shall cause the Subsidiary
to execute a Guaranty, in substantially the form and substance
set forth in Exhibit F, guaranteeing the indebtedness as set
forth in this Agreement and the Loan Documents. In the event
Borrower creates a Subsidiary and is desirous that such
Subsidiary be an Excluded Subsidiary, Borrower shall notify Agent
of such request in writing. Agent, with the consent of the
Majority Lenders, may consent (in their sole discretion) to a
Subsidiary being an Excluded Subsidiary. Borrower shall pay the
costs and expenses, including without limitation Agent's legal
fees and expenses, in connection with the preparation, execution
and review of such Guaranty.
Article VI. Negative Covenants.
The Borrower covenants and agrees that, during the term of
this Agreement and any extensions hereof and until the
indebtedness described herein has been paid and satisfied in
full, unless Agent shall otherwise first consent in writing, the
Borrower (on a consolidated basis, taking into account all its
Subsidiaries) will not, either directly or indirectly:
Section 6.01 Liens. Create, incur, assume, or permit to
exist any Lien on its Property (real, personal, or mixed now
owned or hereafter acquired) except, subject to all other
provisions of this Article, the foregoing restrictions shall not
apply to:
(a) Liens securing the payment of any of the
indebtedness described in this Credit Agreement;
(b) Permitted Encumbrances as defined in this
Agreement;
(c) Liens securing purchase money security
indebtedness up to $50,000,000 in the aggregate;
(d) Liens for taxes net yet due and payable or taxes,
assessments, or other governmental charges that are not
assessed or are being contested in good faith by appropriate
action promptly initiated and diligently conducted, if
Borrower shall have made any reserve therefor required by
GAAP;
(e) Liens of landlords, warehousemen, mechanics,
materialmen and similar liens imposed by law and created in
the ordinary course of business or being contested in good
faith by appropriate proceedings and subject to maintenance
of adequate reserves under GAAP;
(f) Customary liens incurred or deposited made in the
ordinary course of business in connection with worker's
compensation, unemployment insurance and other types of
social security and to secure performance of statutory
obligations, surety and appeal bonds and similar
obligations; and
(g) Zoning, easements and restrictions on use of real
property which do not materially impair the use of such
property.
Section 6.02 Investments, Loans, and Advances. Make or
permit to remain outstanding any loans or advances to or
investments in any Person, except that, subject to all other
provisions of this Article, the foregoing restriction shall not
apply to:
(a) investments in direct obligations of the United
States of America or any agency thereof;
(b) investments in direct obligations of any political
subdivisions of the United States of America or any State of
the United States of America having a debt rating from
Standard and Poor's Corporation or Moody's Investors
Services, Inc. of AA or better;
(c) any other investments with a maturity of less than
one year and having a credit rating of "A1/P1" or "AA" (or
their equivalent) from S&P or Moody's, or upon the
discontinuance of either or both of such services, any other
nationally recognized rating service,
(d) investments in certificates of deposit having
maturities of less than one year, or repurchase agreements
issued by commercial banks in the United States of America
having capital and surplus in excess of $50,000,000, or
commercial paper of the highest quality;
(e) investments in money market funds so long as the
entire investment therein is fully insured or so long as the
fund is a fund operated by a commercial bank of the type
specified in (d) above or in a brokerage account with
Merrill Lynch;
(f) investments received in the settlement of Debt
which was created in the ordinary course of business;
(g) investments in a Subsidiary; and
(h) loans, advances to, or investments in any Person
which in the aggregate do not exceed $25,000,000.
Section 6.03 Sales and Leasebacks. Enter into any arrange
ment, directly or indirectly, with any Person by which the
Borrower (or a Guarantor) shall sell or transfer any Property,
whether now owned or hereafter acquired, and by which the
Borrower (or a Guarantor) shall then or thereafter rent or lease
as lessee such Property or any part thereof or other Property
that Borrower (or a Guarantor) intends to use for substantially
the same purpose or purposes as the Property sold or transferred.
Section 6.04 Nature of Business. Suffer or permit any
material change to be made in the character of the business of
the Borrower or the Guarantors, as carried on as of the date
hereof.
Section 6.05 Mergers, Consolidations, Etc. Merge,
consolidate or reorganize with or into, or sell, assign, lease,
or otherwise dispose of (whether in one transaction or in a
series of transactions) all or substantially all of its Property
(whether now owned or hereafter acquired) to, or become an
Affiliate of, any Person; provided, however, that no Event of
Default and no Default Condition has occurred, Borrower may
merge, reorganize or consolidate with any Person as long as,
immediately after and giving effect to any such merger,
reorganization or consolidation no event shall occur or would
reasonably be expected to occur which constitutes a Default
Condition or an Event of Default and, in the case of any such
merger, reorganization or consolidation to which Borrower is a
party, the Borrower is the surviving corporation and has a
consolidated net worth equal to or greater than Borrower prior to
such merger, reorganization or consolidation.
Section 6.06 Disposition of Assets. Dispose of any of the
assets of the Borrower (or of a Guarantor) other than in the
ordinary course of Borrower's (or a Guarantor's, as applicable)
present business upon terms standard in Borrower's industry.
Section 6.07 Inconsistent Agreements. Enter into any
agreement containing any provision which would be violated or
breached by the performance by Borrower of its obligations.
Section 6.08 Fiscal Year. Change its Fiscal Year without
the written consent of the Majority Lenders.
Section 6.09 Transactions with Affiliates. Enter into any
transaction with its Subsidiaries or any Affiliates (other than a
wholly-owned Subsidiary) except on an arms-length basis.
Section 6.10 Transfers to Excluded Subsidiaries. Transfer
assets to Excluded Subsidiaries (whether in one transfer or
multiple transfers) in any Fiscal Year, which exceeds five
percent (5%) of Borrower's total assets in such Fiscal Year.
Article VII Financial Covenants. The Borrower covenants and
agrees that, during the term of this Agreement and any extensions
hereof and until the indebtedness described herein has been paid
and satisfied in full, unless the Majority Lenders shall
otherwise first consent in writing, the Borrower will not:
Section 7.01 Financial Covenants.
(a) Interest Coverage Ratio. Permit Borrower's ratio of
EBIT to Interest Expense to be less than 3.0 to 1.0. The ratio
made herein shall be determined for each Fiscal Quarter,
calculated on a trailing four (4) Fiscal Quarter basis.
(b) Lease Adjusted Funded Debt to Total Capitalization.
Permit the Borrower's ratio of Lease Adjusted Funded Debt to
Borrower's Total Capitalization to exceed .40 to 1.0 at the end
of any Fiscal Quarter.
Article VIII. Events of Default.
Section 8.01 Events of Default. Any of the following events
shall be considered an Event of Default as those terms are used
in this Agreement:
(a) Principal and Interest Payments. The Borrower
fails to make payment by 11:00 a.m. (Nashville, Tennessee
time) within five (5) days when due of any installment of
interest on the Revolving Credit Notes, the Term Notes or
Swing Line Note, the Borrower fails to make payment by 11:00
a.m. (Nashville, Tennessee time) on the due date, of any
principal due under the Revolving Credit Notes, the Term
Notes or Swing Line Note, or the Borrower fails to pay
within fifteen (15) days when due any other payment due
hereunder or under any of the Loan Documents; or
(b) Representations and Warranties. Any representation
or warranty made by the Borrower in any Loan Document is
incorrect in any material respect as of the date thereof; or
any representation, statement (including financial
statements), certificate, or data furnished or made by
Borrower in any Loan Document with respect to any
indebtedness is untrue in any material respect, as of the
date as of which the facts therein set forth were stated or
certified; or
(c) Borrower fails to perform any term, obligation or
covenant under Section 5.10, Article VI, or Article VII.
(d) Other Obligations. Borrower (or Guarantor, as
applicable) fails to perform any of its other obligations as
required by and contained in this Agreement or any Loan
Document, and such failure to perform is not cured within
thirty (30) days following receipt of written notice thereof
from Agent; or
(e) Involuntary Bankruptcy or Receivership Proceed
ings. A receiver, custodian, liquidator, or trustee of the
Borrower or any Guarantor, or of any of their Properties, is
appointed by the order or decree of any court or agency or
supervisory authority having jurisdiction; or the Borrower
or any Guarantor is adjudicated bankrupt or insolvent; or
any of the Property of the Borrower or any Guarantor is
sequestered by court order or a petition is filed against
the Borrower or any Guarantor under any state or federal
bankruptcy, reorganization, debt arrangement, insolvency,
readjustment of debt, dissolution, liquidation, or
receivership law of any jurisdiction, whether now or
hereafter in effect; or
(f) Voluntary Petitions. The Borrower or any Guarantor
files a petition in voluntary bankruptcy to seek relief
under any provision of any bankruptcy, reorganization, debt
arrangement, insolvency, readjustment of debt, dissolution,
or liquidation law of any jurisdiction, whether now or
hereafter in effect, or consents to the filing of any
petition against it under any such law; or
(g) Assignments for Benefit of Creditors, Etc. The
Borrower or any Guarantor makes an assignment for the
benefit of its creditors, or admits in writing its inability
to pay its debts generally as they become due, or consents
to the appointment of a receiver, trustee, or liquidator of
the Borrower or any Guarantor or of all or any part of their
Properties; or
(h) Discontinuance of Business, Etc. The Borrower or a
Guarantor discontinues its principal business; or
(i) Undischarged Judgments. A final judgment which,
with other outstanding final judgments against the Borrower
and its Subsidiaries, exceeds an aggregate of $10,000,000 in
excess of applicable insurance coverage shall be rendered
against the Borrower or any of its Subsidiaries, if, (i)
within 30 days after entry thereof, such judgment shall not
have been discharged or execution thereof stayed pending
appeal or (ii) within 30 days after the expiration of any
such stay, such judgment shall not have been discharged; or
(j) Violation of Laws, Etc. The Borrower or any
Subsidiary violates or otherwise fails to comply with any
law, rule, regulation, decree, order, or judgment under the
laws of the United States of America, or of any state or
jurisdiction thereof the effect of which has a material and
adverse impact on the Borrower and its Subsidiaries as a
whole; or the Borrower or any Subsidiary fails or refuses at
any and all times to remain current in its or their
financial reporting requirements pursuant to such laws,
rules, and regulations or pursuant to the rules and
regulations of any exchange upon which the shares of the
Borrower are traded; or
(k) A default by Borrower (or any Subsidiary) on any
other indebtedness which individually or in the aggregate
exceeds $10,000,000 and which causes the acceleration of
such indebtedness; or
(l) any Person (or related group of Persons) which
does not presently own 30% of the outstanding shares of
Borrower, obtains beneficial ownership of more than 30% of
the Voting Shares of Borrower; or
(m) there exists a default under any Guaranty subject
to any cure or grace periods therein; or
(n) Borrower commences dissolution proceedings under
applicable law.
Section 8.02 Remedies. Upon the happening of any Event of
Default set forth above, with the exception of those events set
forth in Section 8.01(e) and 8.01(f): (i) Agent, acting pursuant
to Lenders' direction as set forth in Article XII, may declare
the entire principal amount of all indebtedness under this
Agreement then outstanding, including interest accrued thereon,
to be immediately due and payable without presentment, demand,
protest, notice of protest, or dishonor or other notice of
default of any kind, all of which Borrower hereby expressly
waives, (ii) at Lenders' sole discretion and option, all
obligations of any of the Lenders under this Agreement shall
immediately cease and terminate unless and until each of the
Lenders shall reinstate such obligations in writing; and/or (iii)
Lenders may bring an action to protect or enforce their rights
under the Loan Documents or seek to collect the indebtedness
described herein by any lawful means.
Upon the happening of any event specified in Section 8.01(e)
and Section 8.01(f) above: (i) all indebtedness described herein,
including all principal, accrued interest, and other charges or
monies due in connection therewith shall be immediately and
automatically due and payable in full, without presentment,
demand, protest, or dishonor or other notice of any kind, all of
which Borrower hereby expressly waives, (ii) all obligations of
Lenders under this Agreement shall immediately cease and
terminate unless and until each of the Lenders shall reinstate
such obligations in writing; or (iii) Lenders may bring an action
to protect or enforce their rights under the Loan Documents or
seek to collect the indebtedness described herein and/or enforce
the obligations evidenced herein by any lawful means.
Section 8.03 Default Conditions. Any of the following events
shall be considered a Default Condition:
(a) The Borrower suffers a material adverse change in
its financial condition; and
(b) Should any event occur that except for the giving
of notice and/or the passage of time would be an Event of
Default.
Upon the occurrence of a Default Condition or at any time
thereafter until such Default Condition no longer exists, the
Borrower agrees that the Lenders, in their sole discretion, and
without notice to Borrower, may immediately cease making any
Advances, all without liability whatsoever to Borrower or any
other Person whomsoever, all of which is expressly waived hereby.
Borrower releases the Lenders and the Agent from any and all
liability whatsoever, whether direct, indirect, or consequential,
and whether seen or unforeseen, resulting from or arising out of
or in connection with Lenders' determination to cease making
Advances pursuant to this Section.
Article IX. General Provisions.
Section 9.01 Notices. All communications under or in con
nection with this Agreement or any of the other Loan Documents
shall be in writing and shall be mailed by first class certified
mail, postage prepaid, or otherwise sent by telex, telegram,
telecopy, or other similar form of rapid transmission confirmed
by mailing (in the manner stated above) a written confirmation at
substantially the same time as such rapid transmission, or
personally delivered to an officer of the receiving party. All
such communications shall be mailed, sent, or delivered as
follows:
(a) if to Borrower, to its address shown below, or to
such other address as Borrower may have furnished to Agent
in writing:
Cracker Barrel Old Country Store, Inc.
305 Hartmann Drive
Lebanon, Tennessee 37087
Attention: Michael A. Woodhouse
(b) if to Agent, to its address shown below, or to
such other address or to such individual's or department's
attention as it may have furnished Borrower in writing:
SunTrust Bank, Nashville, N.A., Agent
201 Fourth Avenue, North
Nashville, Tennessee 37219
Attention: Allen Oakley
(c) if to Lenders, to the address of each of the
Lenders as shown beside the respective signature of each of
the Lenders.
Any communication so addressed and mailed by certified mail shall
be deemed to be given when so mailed.
Section 9.02 Invalidity. In the event that any one or more
of the provisions contained in any Loan Document for any reason
shall be held invalid, illegal, or unenforceable in any respect,
such invalidity, illegality, or unenforceability shall not affect
any other provision of any Loan Document.
Section 9.03 Survival of Agreements. All representations and
warranties of Borrower in this Agreement and all covenants and
agreements in this Agreement not fully performed before the
Closing Date of this Agreement shall survive the Closing Date.
Section 9.04 Successors and Assigns. The Borrower may not
assign its rights or delegate duties under this Agreement or any
other Loan Document. All covenants and agreements contained by or
on behalf of the Borrower in any Loan Document shall bind the
Borrower's successors and assigns and shall inure to the benefit
of the Agent, each Lender, the Swing Line Lender, and their
respective successors and assigns.
Section 9.05 Waivers. Pursuant to T.C.A. Section 47-50-112,
no action or course of dealing on the part of Agent, the Swing
Line Lender, or any Lender, its officers, employees, consultants,
or agents, nor any failure or delay by Agent, Swing Line Lender,
or any Lender with respect to exercising any right, power, or
privilege of Agent, Swing Line Lender, or any Lender under any of
the Loan Documents shall operate as a waiver thereof, except as
otherwise provided in this Agreement. Acting pursuant to the
requirements of Article XII herein, Agent may from time to time
waive any requirement hereof, including any of the Conditions
Precedent; however no waiver shall be effective unless in writing
and signed by the Agent. The execution by Agent of any waiver
shall not obligate Agent, Swing Line Lender, or any Lender to
grant any further, similar, or other waivers.
Section 9.06 Cumulative Rights. The rights and remedies of
Agent, Swing Line Lender, or any Lender under each Loan Document
shall be cumulative, and the exercise or partial exercise of any
such right or remedy shall not preclude the exercise of any other
right or remedy.
Section 9.07 Construction. This Agreement and the other Loan
Documents constitute a contract made under and shall be construed
in accordance with and governed by the laws of the State of
Tennessee.
Section 9.08 Time of Essence. Time is of the essence with
regard to each and every provision of this Agreement.
Section 9.09 Costs, Expenses, and Indemnification. Borrower
agrees to: (a) pay all reasonable out-of-pocket costs and
expenses of (i) the Agent in connection with the negotiation,
preparation, execution and delivery of this Agreement and the
other Loan Documents; (ii) the Agent and the Lenders in
connection with enforcement of the Loan Documents, including,
without limitation, in connection with any such enforcement, the
reasonable fees and disbursements of counsel (including
allocation of cost of in-house counsel) for the Agent and each of
the Lenders; and (b) indemnify the Agent and each Lender, its
officers, directors, employees, representatives and agents from
and hold each of them harmless against any and all losses,
liabilities, claims, damages or expenses (but excluding any such
losses, liabilities, claims, damages or expenses to the extent
incurred by reason of gross negligence or willful misconduct on
the part of the Person to be indemnified) incurred by any of them
as a result of, or arising out of, or related to, or by reason
of, any litigation or other proceeding related to the entering
into and/or performance of any Loan Document or the use of
proceeds of any Loans hereunder or the consummation of any other
transactions contemplated in the Loan Documents.
Section 9.10 Entire Agreement; No Oral Representations
Limiting Enforcement. This Agreement represents the entire
agreement between the parties hereto except for such other
agreements set forth in the Loan Documents, and any and all oral
statements heretofore made regarding the matters set forth herein
are merged herein.
Section 9.11 Amendments. The parties hereto agree that this
Agreement may not be modified or amended except in writing signed
by the parties hereto.
Section 9.12 Distribution of Information. The Borrower
hereby authorizes the Agent, the Swing Line Lender, and each
Lender, as the Agent, the Swing Line Lender, and each Lender may
elect in its sole discretion, to discuss with and furnish to any
Affiliate, to any government or self-regulatory agency with
jurisdiction over the Agent, the Swing Line Lender, and each
Lender, or, subject to the terms of Section 12.12(e) hereof, to
any participant or prospective participant, all financial
statements, audit reports and other information pertaining to the
Borrower (or any Subsidiary) whether such information was
provided by Borrower or prepared or obtained by the Agent or
third parties. Neither the Agent nor any of its employees,
officers, directors or agents make any representation or warranty
regarding any audit reports or other analyses of Borrower which
the Agent may elect to distribute, whether such information was
provided by Borrower or prepared or obtained by the Agent or
third parties, nor shall the Agent or any of its employees,
officers, directors or agents be liable to any Person receiving a
copy of such reports or analyses for any inaccuracy or omission
contained in such reports or analyses or relating thereto.
Article X. Jury Waiver.
Section 10.01 Jury Waiver. IF ANY ACTION OR PROCEEDING
INVOLVING THIS LOAN AGREEMENT OR ANY LOAN DOCUMENT IS COMMENCED
IN ANY COURT OF COMPETENT JURISDICTION, BORROWER, AGENT, SWING
LINE LENDER, AND EACH LENDER HEREBY WAIVE THEIR RIGHTS TO DEMAND
A JURY TRIAL.
Article XI. Hazardous Substances.
Section 11.01 Representation and Indemnity Regarding
Hazardous Substances.
(a) Borrower has no knowledge of any spills, releases,
discharges, or disposal of Hazardous Substances that have
occurred or are presently occurring on or onto any of its
Property (or the Property of any Subsidiary); or of any
spills or disposal of Hazardous Substances that have
occurred or are occurring off any of its Property as a
result of any construction on or operation and use of such
Property; in each case under this paragraph (a) so as to
violate any Environmental Law in a manner that would have a
material adverse effect on the business, Properties or
financial condition of the Borrower (or a Subsidiary) or on
the ability of the Borrower (or a Subsidiary) to perform its
obligations under this Agreement or any of the other Loan
Documents.
(b) The Borrower represents that its Property and any
current operation concerning its Property (and the Property
of any Subsidiary) and its business operations are not in
material violation of any applicable Environmental Law, and
the Borrower has no actual knowledge or any notice from any
governmental body claiming that such Property or such
business operations or operations or uses of the Property
have or may result in any violation of any Environmental Law
or requiring or calling attention to the need for any work,
repairs, corrective actions, construction alterations or
installation on or in connection with such Property or the
Borrower's business in order to comply with any
Environmental Law with which Borrower has not complied, in
each case under this paragraph (b) wherein such violation
would have a material adverse effect on the business,
Properties, or financial condition of the Borrower. If there
are any such notices which would have such effect with which
Borrower has not complied, Borrower shall provide Agent with
copies thereof. If Borrower receives any such notice which
would have such effect, Borrower will immediately provide a
copy to Agent.
(c) Borrower agrees to indemnify and hold Agent, Swing
Line Lender, and Lenders harmless from and against any and
all claims, demands, damages, losses, liens, liabilities,
penalties, fines, lawsuits, and other proceedings, costs and
expenses (including, without limitation, reasonable
attorneys' fees), arising directly or indirectly from or out
of, or in any way connected with (i) the presence of any
Hazardous Substances on any of its Property (or the Property
of a Subsidiary) in violation of any Environmental Law; (ii)
any violation or alleged violation of any Environmental Law
relating to Hazardous Substances on any of its Property (or
the Property of a Subsidiary), whether attributable to
events occurring before or after acquisition of any of such
Property; (iii) any violation of any Environmental Law by
the Borrower (or a Subsidiary) resulting from the conduct of
its business, use of its Property, or otherwise; or (iv) any
inaccuracy in the certifications contained in Section
11.01(a).
Article XII. The Agent.
Section 12.01 Appointment of Agent. Each Lender hereby
designates STB as Agent to administer all matters concerning the
Loans and to act as herein specified. Each Lender hereby
irrevocably authorizes, and each holder of any Revolving Credit
Note and Term Note by the acceptance of a Revolving Credit Note
and Term Note shall be deemed irrevocably to authorize, the Agent
to take such actions on its behalf under the provisions of this
Agreement, the other Loan Documents and all other instruments and
agreements referred to herein or therein, and to exercise such
powers and to perform such duties hereunder and thereunder as are
specifically delegated to or required of the Agent by the terms
hereof and thereof and such other powers as are reasonably
incidental thereto. The Agent may perform any of its duties
hereunder by or through its agents or employees. The Lenders
agree that neither the Agent nor any of its directors, officers,
employees or agents shall be liable for any action taken or
omitted to be taken by it or them hereunder or in connection
herewith, except for its or their own gross negligence or willful
misconduct. The Lenders agree that the Agent shall not have any
duties or responsibilities, except those expressly set forth
herein, or any fiduciary relationship with any of the Lenders,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise be imposed upon or exist against the Agent.
Section 12.02 Authorization of Agent with Respect to the
Loan Documents. (a) Each Lender hereby authorizes the Agent to
enter into each of the Loan Documents and to take all action
contemplated thereby, all in its capacity as Agent for the
ratable benefit of the Lenders. All rights and remedies under the
Loan Documents may be exercised by the Agent for the benefit of
the Agent and the Lenders upon the terms thereof. The Lenders
further agree that the Agent may assign its rights and
obligations under any of the Loan Documents to any Affiliate of
the Agent, if necessary or appropriate under applicable law,
which assignee in each such case shall (subject to compliance
with any requirements of applicable law governing the assignment
of such Loan Documents) be entitled to all the rights of the
Agent under and with respect to the applicable Loan Document.
(b) The Agent shall administer the Loans described herein
and the Loan Documents on behalf of and for the benefit of the
Lenders in all respects as if the Agent were the sole Lender
under the Loan Documents, except that:
(i) The Agent shall administer the Loans and the Loan
Documents with a degree of care at least equal to that
customarily employed by the Agent in the administration of
similar credit facilities for its own account.
(ii) The Agent shall not, without the consent of the
Majority Lenders, take any of the following actions:
(A) agree to a waiver of any material
requirements, covenants, or obligations of the Borrower
contained herein;
(B) agree to any amendment to or
modification of any of the terms of any of the Loan
Documents;
(C) waive any Event of Default or Default
Condition as set forth in the Credit Agreement;
(D) accelerate the indebtedness described in
the Credit Agreement following an Event of Default;
(E) initiate litigation or pursue other
remedies to enforce the obligations contained in any
Loan Document or to collect the indebtedness described
herein.
(iii) The Agent shall not, without the consent of all
of the Lenders, take any of the following actions:
(A) extend the maturity of any payment of
principal of or interest on the indebtedness described
herein;
(B) reduce any fees paid to or for the
benefit of Lenders under this Credit Agreement;
(C) reduce the rate of interest charged on
the indebtedness described herein;
(D) release any Guaranty;
(E) waive, amend, modify or change the
Conditions Precedent;
(F) postpone any date fixed for the payment
in respect of principal of, or interest on the
indebtedness described herein, or any fees hereunder;
(G) modify the definition of Majority
Lenders; or
(H) modify this Section 12.02(b)(ii) or (iii).
(c) The Agent, upon its receipt of actual notice
thereof, shall notify the Lenders of: (i) each proposed
action that would require the consent of the Lenders as set
forth herein, or (ii) any action proposed to be taken by the
Agent in the administration of the Loans and Loan Documents
not in the ordinary course of business; provided that any
failure of the Agent to give the Lenders any such notice
shall not alone be the basis for any liability of the Agent
to the Lenders except for the Agent's gross negligence or
willful misconduct.
(d) The Lenders agree that the Agent shall incur no
liability under or in respect of this Agreement with respect
to anything which it may do or refrain from doing in the
reasonable exercise of its judgment or which may seem to it
to be necessary or desirable in the circumstances, except
for its gross negligence or willful misconduct.
(e) The Agent shall not be liable to the Lenders or to
any Lender in acting or refraining from acting under this
Agreement or any other Loan Document in accordance with the
instructions of the Majority Lenders or all of the Lenders,
where expressly required by this Agreement, and any action
taken or failure to act pursuant to such instructions shall
be binding on all Lenders. In each circumstance where any
consent of or direction from the Majority Lenders or all of
the Lenders is required or requested by Agent, the Agent
shall send to the Lenders a notice setting forth a
description in reasonable detail of the matter as to which
consent or direction is requested and the Agent's proposed
course of action with respect thereto. In the event the
Agent shall not have received a response from any Lender
within five (5) Business Days after Agent sends such notice,
such Lender shall be deemed not to have agreed to the course
of action proposed by the Agent.
Section 12.03 Agent's Duties Limited; No Fiduciary Duty. The
Lenders agree that the Agent shall have no duties or responsi-
bilities except those expressly set forth in this Agreement
and the other Loan Documents. The Lenders agree that none of the
Agent nor any of its respective officers, directors, employees
or agents shall be liable for any action taken or omitted by it as
such hereunder or in connection herewith, unless caused by its
or their gross negligence or willful misconduct. The Agent shall
not have by reason of this Agreement a fiduciary relationship to
or in respect of any Lender, and nothing in this Agreement, express
or implied, is intended to or shall be so construed as to impose
upon the Agent any obligations in respect of this Agreement or
the other Loan Documents except as expressly set forth herein.
SECTION 12.04 No Reliance on the Agent. (A) EACH LENDER
REPRESENTS AND WARRANTS TO THE AGENT AND THE OTHER LENDERS THAT
INDEPENDENTLY AND WITHOUT RELIANCE UPON THE AGENT, EACH LENDER,
TO THE EXTENT IT DEEMS APPROPRIATE, HAS MADE AND SHALL CONTINUE
TO MAKE (I) ITS OWN INDEPENDENT INVESTIGATION OF THE FINANCIAL
CONDITION AND AFFAIRS OF THE BORROWER, THE GUARANTORS AND ANY
SUBSIDIARY IN CONNECTION WITH THE TAKING OR NOT TAKING OF ANY
ACTION IN CONNECTION HEREWITH, AND (II) ITS OWN APPRAISAL OF THE
CREDITWORTHINESS OF THE BORROWER, THE GUARANTORS AND ANY
SUBSIDIARY, AND, EACH LENDER FURTHER AGREES THAT, EXCEPT AS
EXPRESSLY PROVIDED IN THIS AGREEMENT, THE AGENT SHALL HAVE NO
DUTY OR RESPONSIBILITY, EITHER INITIALLY OR ON A CONTINUING
BASIS, TO PROVIDE ANY LENDER WITH ANY CREDIT OR OTHER INFORMATION
WITH RESPECT THERETO, WHETHER COMING INTO ITS POSSESSION BEFORE
THE MAKING OF THE LOANS OR AT ANY TIME OR TIMES THEREAFTER. AS
LONG AS ANY OF THE LOANS ARE OUTSTANDING AND/OR ANY AMOUNT IS
AVAILABLE TO BE REQUESTED OR BORROWED HEREUNDER, OR THIS
AGREEMENT AND THE LOAN DOCUMENTS HAVE NOT BEEN CANCELLED AND
TERMINATED, EACH LENDER SHALL CONTINUE TO MAKE ITS OWN
INDEPENDENT EVALUATION OF THE FINANCIAL CONDITION AND AFFAIRS OF
THE BORROWER, THE GUARANTORS AND THE SUBSIDIARIES.
(b) The Agent shall not be responsible to any Lender for
any recitals, statements, information, representations or
warranties herein or in any document, certificate or other
writing delivered in connection herewith or for the execution,
effectiveness, genuineness, validity, enforceability,
collectability, priority or sufficiency of this Agreement, the
Revolving Credit Notes, the Swing Line Note, the Term Notes, the
Guarantees, the other Loan Documents, or any other documents
contemplated hereby or thereby, or the financial condition of the
Borrower, the Guarantors and any Subsidiary, or be required to
make any inquiry concerning either the performance or observance
of any of the terms, provisions or conditions of this Agreement,
the Revolving Credit Notes, the Swing Line Note, the Term Notes,
the Guarantees, the other Loan Documents or the other documents
contemplated hereby or thereby, or the financial condition of the
Borrower, the Guarantors and any Subsidiary, or the existence or
possible existence of any Default Condition or Event of Default.
Section 12.05 Certain Rights of Agent. The Lenders agree
that if the Agent shall request instructions from the Majority
Lenders (or all of the Lenders where unanimity is expressly
required under the terms of this Agreement) with respect to any
action or actions (including the failure to act) in connection
with this Agreement, the Agent shall be entitled to refrain from
such act or taking such act, unless and until the Agent shall
have received instructions from the Majority Lenders (or all of
the Lenders where unanimity is expressly required under the terms
of this Agreement); and the 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 Agent as a result of the Agent acting or refraining
from acting hereunder in accordance with the instructions of the
Majority Lenders (or, with regard to acts for which the consent
of all of the Lenders is expressly required under the terms of
this Agreement, in accordance with the instructions of all of the
Lenders).
Section 12.06 Reliance by Agent. The Lenders agree that the
Agent shall be entitled to rely, and shall be fully protected in
relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other documentary, teletransmission or
telephone message reasonably believed by it to be genuine and
correct and to have been signed, sent or made by the proper
Person. The Lenders agree that the Agent may consult with legal
counsel (including counsel for any Lender), independent public
accountants and other experts selected by it and shall not be
liable for any action taken or omitted to be taken by it in good
faith in accordance with the advice of such counsel, accountants
or experts.
Section 12.07 Indemnification of Agent. To the extent the
Agent is not reimbursed and indemnified by the Borrower, each
Lender will reimburse and indemnify the Agent, ratably according
to their respective Pro Rata Share, for, from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses (including fees of
experts, consultants and counsel and disbursements) or
disbursements of any kind or nature whatsoever that may be
imposed on, incurred by or asserted against the Agent in
performing its duties hereunder, in any way relating to or
arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable to the Agent for any
portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or
disbursements resulting from the Agent's gross negligence or
willful misconduct. The obligations and indemnifications arising
under this Section 12.07 shall survive termination of this
Agreement, repayment of the Loans and indebtedness arising in
connection with the Letters of Credit and expiration of the
Letters of Credit.
Section 12.08 The Agent in its Individual Capacity. With
respect to its obligation to lend under this Agreement, the Loan
made by it and the Revolving Credit Note and Term Note issued to
it, the Agent shall have the same rights and powers hereunder as
any other Lender or holder of a Revolving Credit Note and Term
Note and may exercise the same as though it were not performing
the duties of Agent specified herein; and the terms "Lenders,"
"Majority Lenders," "holders of Revolving Credit Notes," "holders
of Term Notes," or any similar terms shall, unless the context
clearly otherwise indicates, include the Agent in its individual
capacity. The Agent also may exercise the rights and remedies of
the Swing Line Lender. The Agent and its Affiliates may accept
deposits from, lend money to, and generally engage in any kind of
banking, trust, financial advisory or other business with the
Borrower or any Subsidiary of the Borrower as if it were not
performing the duties specified herein as Agent, and may accept
fees and other consideration from the Borrower for services in
connection with this Agreement and otherwise without having to
account for the same to the Lenders.
Section 12.09 Holders of Notes. The Agent and the Borrower
may deem and treat the payee of any Revolving Credit Notes and
any Term Notes as the owner thereof for all purposes hereof
unless and until a written notice of the assignment or transfer
thereof shall have been filed with the Agent and the Borrower.
Any request, authority or consent of any Person who, at the time
of making such request or giving such authority or consent, is
the holder of any Revolving Credit Note and any Term Note shall
be conclusive and binding on any subsequent holder, transferee or
assignee of such Revolving Credit Note any Term Note.
Section 12.10 Successor Agent. (a) The Agent may resign at
any time by giving written notice thereof to the Lenders and the
Borrower and may be removed at any time with cause by the
Majority Lenders; provided, however, the Agent may not resign or
be removed until (i) a successor Agent has been appointed and
shall have accepted such appointment, (ii) the successor Agent
has assumed all responsibility for issuance of the Letters of
Credit and the successor Agent has assumed in the place and stead
of the Agent all existing liability under outstanding Letters of
Credit, and (iii) the successor Agent has assumed in the place
and stead of the Agent all liability and responsibility of the
Swing Line Lender, including the purchase by the successor Agent
from the Agent of the Swing Line Lender's position in the Swing
Line Note. The transactions described in the immediately
preceding sentence shall be accomplished pursuant to written
agreements reasonably satisfactory to the Agent and the successor
Agent. Upon any such resignation or removal, the Majority Lenders
shall have the right to appoint a successor Agent with the
consent of Borrower, which shall not be unreasonably withheld. If
no successor Agent shall have been so appointed by the Majority
Lenders, and shall have accepted such appointment, within thirty
(30) days after the retiring Agent's giving of notice of
resignation or the Majority Lenders' removal of the retiring
Agent, then the retiring Agent may, on behalf of the Lenders,
appoint a successor Agent (with the consent of Borrower, which
will not be unreasonably withheld), which shall be a bank that
maintains an office in the United States, or a commercial bank
organized under the laws of the United States of America or any
State thereof, or any Affiliate of such bank, having a combined
capital and surplus of at least $100,000,000.
(b) Upon the acceptance of any appointment as the Agent
hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations under this Agreement. After any retiring Agent's
resignation or removal hereunder as Agent, the provisions of this
Article XII shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was an Agent under this
Agreement.
Section 12.11 Notice of Default or Event of Default. In the
event that the Agent or any Lender shall acquire actual
knowledge, or shall have been notified, of any Default Condition
or Event of Default (other than through a notice by one party
hereto to all other parties), the Agent or such Lender shall
promptly notify the Agent, and the Agent shall take such action
and assert such rights under this Agreement as the Majority
Lenders shall request in writing, and the Agent shall not be
subject to any liability by reason of its acting pursuant to any
such request. If, following notification by Agent to Lenders, the
Majority Lenders (or all of the Lenders if required hereunder)
shall fail to request the Agent to take action or to assert
rights under this Agreement in respect of any Default Condition
or Event of Default within five (5) Business Days after their
receipt of the notice of any Default Condition or Event of
Default from the Agent or any Lender, or shall request
inconsistent action with respect to such Default Condition or
Event of Default, the Agent may, but shall not be required to,
take such action and assert such rights (other than rights under
Article VIII hereof) as it deems in its discretion to be
advisable for the protection of the Lenders.
Section 12.12 Benefit of Agreement.
(a) Any Lender may make, carry or transfer Loans at, to or
for the account of, any of its branch offices or the office of an
Affiliate of such Lender, provided that no such action shall
increase the cost of the Loans to the Borrower.
(b) Each Lender may assign a portion of its interests,
rights and obligations under this Agreement, including all or a
portion of any of its Revolving Credit Loan Commitment (including
without limitation its commitment to participate in Letters of
Credit) and/or its Term Loan Commitment to any Eligible Assignee;
provided, however, that (i) the amount of the Revolving Credit
Loan Commitment or Term Loan Commitment of the assigning Lender
subject to each assignment (determined as of the date the
assignment and acceptance with respect to such assignment is
delivered to the Agent) shall not be less than an amount equal to
$10,000,000 or greater integral multiples thereof, and (ii) the
parties to each such assignment shall execute and deliver to the
Agent and the Borrower an Assignment and Acceptance, together
with a Revolving Credit Note(s) and Term Note(s) subject to such
assignment and, unless such assignment is to an Affiliate of such
Lender, a processing and recordation fee of $3,000. Borrower
shall not be responsible for such processing and recordation fee
or any costs or expenses incurred by any Lender or the Agent in
connection with such assignment. From and after the effective
date specified in each Assignment and Acceptance, which effective
date shall be at least five (5) Business Days after the execution
thereof, the 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. Notwithstanding the foregoing, the assigning
Lender must retain after the consummation of such Assignment and
Acceptance, a minimum aggregate amount of Revolving Credit Loan
Commitment and Term Loan Commitment of $10,000,000; provided,
however, no such minimum amount shall be required with respect to
any such assignment made at any time there exists an Event of
Default hereunder. Within five (5) Business Days after receipt of
the notice and the Assignment and Acceptance, Borrower, at their
own expense, shall execute and deliver to the Agent, in exchange
for the surrendered Revolving Credit Note(s) or Term Note(s), a
new Revolving Credit Note (or Revolving Credit Notes) and a New
Term Note (or Term Notes) to the order of the Eligible Assignee
in a principal amount equal to the applicable Revolving Credit
Loan Commitment and Term Loan Commitment assumed by it pursuant
to such Assignment and Acceptance, as well as a new Revolving
Credit Note (or Revolving Credit Notes) and a new Term Note (or
Term Notes) to the assigning Lender in the amount of its retained
Revolving Credit Loan Commitment and Term Loan Commitment. Such
new Revolving Credit Note(s) and Term Note(s) to the Eligible
Assignee and to the assigning Lender shall be in an aggregate
principal amount equal to the aggregate principal amount of such
surrendered Revolving Credit Note(s) or Term Note(s), shall be
dated the date of the surrendered Revolving Credit Note(s) or
Term Note(s) that they replace, and shall otherwise be in
substantially the form attached hereto as Exhibits A and B,
respectively.
(c) No assignment of all or any portion of this Agreement
by any Lender shall be permitted without compliance with the
provisions of Section 12.12(b) hereof, or if such assignment
would violate any applicable securities law. In connection with
its execution and delivery hereof each Lender represents that it
is acquiring its interest herein for its own account for
investment purposes and not with a view to further distribution
thereof, and shall require any proposed assignee to furnish
similar representations to the Agent and the Borrower.
(d) Each Lender may, without the consent of Borrower or the
Agent but subject to the provisions of Section 2.07, sell
participations in its respective Revolving Credit Loan
Commitment, Term Loan Commitment and Letter of Credit commitments
to such Lender's Affiliate(s), but sales of participations to
Persons other than such Lender's Affiliates shall be made only
with the prior written consent of the Borrower (which consent
shall not be unreasonably withheld or delayed) and in all events
subject to said Section. Provided, however, that (i) no Lender
may sell a participation in its aggregate Revolving Credit Loan
Commitment, Term Loan Commitment and Letter of Credit commitments
(after giving effect to any permitted assignment hereof) unless
it retains an aggregate exposure of at least $10,000,000 (except
that no such limitation shall be applicable to any such
participation sold at any time there exists an Event of Default
hereunder), (ii) such Lender's obligations under this Agreement
shall remain unchanged, (iii) such Lender shall remain solely
responsible to the other parties hereto for the performance of
such obligations, and (v) Borrower and the Agent and other
Lenders shall continue to deal solely and directly with each
Lender in connection with such Lender's rights and obligations as
provided in this Agreement and the other Loan Documents. Each
Lender shall promptly notify in writing the Agent of any sale of
a participation hereunder.
(e) Any Lender or participant may, in connection with the
assignment or participation or proposed assignment or
participation, pursuant to this Section 12.12, disclose to the
assignee or participant or proposed assignee or participant any
information relating to Borrower or any Subsidiary, furnished to
such Lender by or on behalf of Borrower. With respect to any
disclosure of confidential, non-public, proprietary information,
such proposed assignee or participant shall agree to use the
information only for the purpose of making any necessary credit
judgments with respect to this credit facility and not to use the
information in any manner prohibited by any law, including
without limitation, the securities laws of the United States. The
proposed participant or assignee shall agree in writing not to
disclose any of such information except (i) to directors,
employees, auditors or counsel to whom it is necessary to show
such information, each of whom shall be informed of the
confidential nature of the information and agree to maintain the
confidentiality thereof as described herein, (ii) in any
statement or testimony pursuant to a subpoena or order by any
court, governmental body or other agency asserting jurisdiction
over such entity, or as otherwise required by law (provided prior
notice is given to Borrower and the Agent unless otherwise
prohibited by the subpoena, order or law), and (iii) upon the
request or demand of any regulatory agency or authority with
proper jurisdiction. The proposed participant or assignee, and
such representatives, shall further agree to return to Borrower
all documents or other written material and copies thereof
received from any Lender, the Agent or Borrower relating to such
confidential information.
(f) Any Lender may at any time assign all or any portion of
its rights in this Agreement, the Term Notes and the Revolving
Credit Notes issued to it to a Federal Reserve Bank; provided
that no such assignment shall release the assigning Lender from
any of its obligations hereunder.
Section 12.13 Removal of Lender. In the event that any
Lender (the "Specified Lender") (a) fails to perform its
obligation to fund any portion of the Loan when required to do so
by the terms of this Agreement or excused only by Section 2.17,
(b) demands payment in respect of increased costs pursuant to
Section 2.18 in an amount the Borrower reasonably deems
materially in excess of the amounts in respect thereof demanded
by the other Lenders, or (c) refuses to consent to a proposed
amendment, modification, consent or other action requiring
unanimity among the Lenders under the terms of this Agreement, as
to which the Majority Lenders have given such consent, then, so
long as no Event of Default or Default Condition exists, the
Borrower shall have the right to seek a replacement Lender which
is reasonably satisfactory to the Agent (a "Replacement Lender").
The Replacement Lender shall purchase the interest of the
Specified Lender in the Loan and shall assume the obligations of
the Specified Lender hereunder upon execution by the Replacement
Lender of an Assignment and Acceptance and the tender by it to
the Specified Lender of a purchase price agreed by it and the
Specified Lender (or, if they are unable to agree, a purchase
price equal to the amount of the Specified Lender's Pro Rata
Share of the Loan and all other amounts then owed by the Borrower
to the Specified Lender). Upon consummation of such assignment,
the Replacement Lender shall become a party to this Agreement as
a signatory hereto and shall have all of the rights and
obligations of the Specified Lender under this Agreement and
under the other Loan Documents, and no further consent or action
by any party shall be required. Upon the consummation of such
assignment, the Borrower, the Agent and the Specified Lender
shall make appropriate arrangements so that a new Revolving
Credit Note and a new Term Note are issued to the Replacement
Lender. The Borrower and the Guarantors shall sign such documents
and take such other actions reasonably requested by the
Replacement Lender or the Agent to enable the Replacement Lender
to share in the rights created by this Agreement and the other
Loan Documents. Until the consummation of an assignment in
accordance with the foregoing provisions of this Section 12.13,
the Company
shall continue to pay to or for the benefit of the Specified
Lender all amounts which it is required to pay pursuant to this
Agreement and the other Loan Documents, as they become due and
payable.
Article XIII. Guarantors.
Section 13.01 Guarantors. The obligations of the Borrower
under the Loan Documents shall be guaranteed jointly and
severally by each of the Guarantors pursuant to the Guarantees.
ENTERED INTO the date first above written.
BORROWER:
CRACKER BARREL OLD COUNTRY STORE,
INC.
By: /s/Michael A. Woodhouse
Title: Senior Vice President, Finance
and Chief Financial Officer
AGENT:
SUNTRUST BANK, NASHVILLE, N.A., Agent
By: /s/Allen K. Oakley
Title: Senior Vice President
LENDERS:
SUNTRUST BANK, NASHVILLE, N.A.
By: /s/Allen K. Oakley
Title: Senior Vice President
Address: 201 Fourth Avenue North
Nashville, Tennessee 37219
Pro Rata Share: 40%
WACHOVIA BANK OF GEORGIA, N.A.
By: /s/Charles Dee O'Dell II
Title: Vice President
Address: 191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Pro Rata Share: 30%
THE FIRST NATIONAL BANK OF CHICAGO
By: /s/Curtis A. Price
Title: As Agent
Address: One First National Plaza
Mail Suite 0324
Chicago, IL 60670
Pro Rata Share: 30%