Exhibit 10.24
CHAR1\TCO\BANK\279009_ 6
CREDIT AGREEMENT
among
RYAN'S FAMILY STEAK HOUSES, INC.,
as Borrower,
THE DOMESTIC SUBSIDIARIES OF THE BORROWER,
as Guarantors,
THE LENDERS IDENTIFIED HEREIN
BANK OF AMERICA, N.A.,
as Administrative Agent,
FIRST UNION NATIONAL BANK,
as Syndication Agent,
WACHOVIA BANK, N.A.,
as Documentation Agent
AND
SUNTRUST BANK, ATLANTA,
as Senior Managing Agent
DATED AS OF JANUARY 28, 2000
Arranged by:
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS 1
1.1 Definitions. 1
1.2 Computation of Time Periods and Other Definitional
Provisions. 24
1.3 Accounting Terms. 24
SECTION 2 CREDIT FACILITIES 25
2.1 Revolving Loans. 25
2.2 Letter of Credit Subfacility. 27
2.3 Swingline Loans Subfacility. 32
2.4 Continuations and Conversions. 34
2.5 Minimum Amounts. 35
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND
LETTERS OF CREDIT 35
3.1 Interest. 35
3.2 Place and Manner of Payments. 36
3.3 Prepayments. 36
3.4 Termination and Reduction of Revolving Committed
Amount. 37
3.5 Fees. 38
3.6 Payment in full at Maturity. 39
3.7 Computations of Interest and Fees. 39
3.8 Pro Rata Treatment. 40
3.9 Sharing of Payments. 41
3.10 Capital Adequacy. 42
3.11 Inability To Determine Interest Rate. 43
3.12 Illegality. 43
3.13 Requirements of Law. 43
3.14 Taxes. 44
3.15 Compensation. 47
3.16 Evidence of Debt. 47
SECTION 4 GUARANTY 48
4.1 Guaranty of Payment. 48
4.2 Obligations Unconditional. 48
4.3 Modifications. 49
4.4 Waiver of Rights. 49
4.5 Reinstatement. 50
4.6 Remedies. 50
4.7 Limitation of Guaranty. 50
4.8 Rights of Contribution. 51
SECTION 5 CONDITIONS PRECEDENT 52
5.1 Closing Conditions. 52
5.2 Conditions to All Extensions of Credit. 55
SECTION 6 REPRESENTATIONS AND WARRANTIES 56
6.1 Financial Condition. 56
6.2 No Material Change. 57
6.3 Organization and Good Standing. 57
6.4 Due Authorization. 57
6.5 No Conflicts. 57
6.6 Consents. 58
6.7 Enforceable Obligations. 58
6.8 No Default. 58
6.9 Ownership. 58
6.10 Indebtedness. 58
6.11 Litigation. 59
6.12 Taxes. 59
6.13 Compliance with Law. 59
6.14 ERISA. 59
6.15 Subsidiaries. 60
6.16 Use of Proceeds. 61
6.17 Government Regulation. 61
6.18 Environmental Matters. 62
6.19 Intellectual Property. 63
6.20 Solvency. 63
6.21 Investments. 63
6.22 Location of Chief Executive Office/Principal Place of
Business. 63
6.23 Disclosure. 64
6.24 Licenses, etc. 64
6.25 No Burdensome Restrictions. 64
6.26 Collateral Documents. 64
6.27 Year 2000 Compliance. 64
6.28 Labor Contracts and Disputes. 65
6.29 Broker's Fees. 65
6.30 Indebtedness under Note Purchase Agreements. 65
SECTION 7 AFFIRMATIVE COVENANTS 65
7.1 Information Covenants. 65
7.2 Financial Covenants. 69
7.3 Preservation of Existence and Franchises. 69
7.4 Books and Records. 69
7.5 Compliance with Law. 70
7.6 Payment of Taxes, Claims and Other Indebtedness. 70
7.7 Insurance. 70
7.8 Maintenance of Property. 70
7.9 Collateral. 70
7.10 Use of Proceeds. 71
7.11 Performance of Obligations. 71
7.12 Additional Credit Parties. 71
7.13 Audits/Inspections. 72
7.14 Year 2000 Compliance. 72
SECTION 8 NEGATIVE COVENANTS 72
8.1 Indebtedness. 72
8.2 Liens. 73
8.3 Nature of Business. 74
8.4 Consolidation and Merger. 74
8.5 Sale or Lease of Assets. 74
8.6 Sale Leasebacks. 75
8.7 Investments. 75
8.8 Restricted Payments. 75
8.9 Transactions with Affiliates. 75
8.10 Fiscal Year; Organizational Documents. 76
8.11 No Limitations. 76
8.12 No Other Negative Pledges. 76
8.13 Capital Expenditures. 76
SECTION 9 EVENTS OF DEFAULT 78
9.1 Events of Default. 78
9.2 Acceleration; Remedies. 81
9.3 Allocation of Payments After Event of Default. 82
SECTION 10 AGENCY PROVISIONS 82
10.1 Appointment. 82
10.2 Delegation of Duties. 82
10.3 Exculpatory Provisions. 82
10.4 Reliance on Communications. 82
10.5 Notice of Default. 82
10.6 Non-Reliance on Agent and Other Lenders. 82
10.7 Indemnification. 82
10.8 Agent in Its Individual Capacity. 82
10.9 Successor Agent. 82
SECTION 11 MISCELLANEOUS 82
11.1 Notices. 82
11.2 Right of Set-Off. 82
11.3 Benefit of Agreement. 82
11.4 No Waiver; Remedies Cumulative. 82
11.5 Payment of Expenses; Indemnification. 82
11.6 Amendments, Waivers and Consents. 82
11.7 Counterparts/Telecopy. 82
11.8 Headings. 82
11.9 Defaulting Lender. 82
11.10 Survival of Indemnification and Representations
and Warranties. 82
11.11 Governing Law; Jurisdiction. 82
11.12 Waiver of Jury Trial; Waiver of Consequential
Damages. 82
11.13 Time. 82
11.14 Severability. 82
11.15 Further Assurances. 82
11.16 Entirety. 82
11.17 Binding Effect; Continuing Agreement. 82
SCHEDULES
Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Existing Letters of Credit
Schedule 1.1(c) Prior Credit Agreements
Schedule 6.10 Indebtedness
Schedule 6.12 Tax Assessment
Schedule 6.15 Subsidiaries
Schedule 6.22 Chief Executive Office/Principal Place of
Business
Schedule 8.5(d) 1999 Closed Stores
Schedule 10.1(b) Intercreditor Agreement
Schedule 11.1 Notices
EXHIBITS
Exhibit 2.1(b) Form of Notice of Borrowing
Exhibit 2.1(d) Form of Revolving Note
Exhibit 2.3(b) Form of Swingline Loan Request
Exhibit 2.3(d) Form of Swingline Note
Exhibit 2.4 Form of Notice of Continuation/Conversion
Exhibit 7.1(c) Form of Officer's Certificate
Exhibit 7.12(a) Form of Joinder Agreement
Exhibit 7.12(b) Form of Pledge Joinder Agreement
Exhibit 11.3(b) Form of Assignment Agreement
CREDIT AGREEMENT
THIS CREDIT AGREEMENT (this "Credit Agreement"), is entered
into as of January 28, 2000 among RYAN'S FAMILY STEAK HOUSES,
INC., a South Carolina corporation (the "Borrower"), each of the
Domestic Subsidiaries of the Borrower (individually a "Guarantor"
and collectively the "Guarantors"), the Lenders (as defined
herein), BANK OF AMERICA, N.A., as Administrative Agent for the
Lenders (in such capacity, the "Administrative Agent"), FIRST
UNION NATIONAL BANK, as Syndication Agent (in such capacity,
"Syndication Agent"), WACHOVIA BANK, N.A., as Documentation Agent
(in such capacity, the "Documentation Agent") and SUNTRUST BANK,
ATLANTA, as Senior Managing Agent (in such capacity, the "Senior
Managing Agent").
RECITALS
WHEREAS, the Borrower and the Guarantors have requested that
the Lenders provide a $200 million senior secured credit facility
for the purposes hereinafter set forth; and
WHEREAS, the Lenders party hereto have agreed to make the
requested senior secured credit facility available to the
Borrower on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other
good and valuable consideration, the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as
follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 Definitions.
As used herein, the following terms shall have the meanings
herein specified unless the context otherwise requires. Defined
terms herein shall include in the singular number the plural and
in the plural the singular:
"Acquisition" by any Person means the acquisition by
such Person of the Capital Stock or all or substantially all
of the Property of another Person, whether or not involving
a merger or consolidation with such Person.
"Additional Credit Party" means each Person that
becomes a Guarantor after the Closing Date, as provided in
Section 7.12.
"Adjusted Base Rate" means the Base Rate plus the
Applicable Percentage.
"Adjusted CD Rate" means the Floating CD Rate plus the
Applicable Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate
plus the Applicable Percentage.
"Administrative Agent" shall have the meaning assigned
to such term in the heading hereof, together with any
successors and assigns.
"Affiliate" means, with respect to any Person, any
other Person directly or indirectly controlling (including
but not limited to all directors and officers of such
Person), controlled by or under direct or indirect common
control with such Person. A Person shall be deemed to
control a corporation if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the
securities having ordinary voting power for the election of
directors or trustees of such corporation or (b) to direct
or cause direction of the management and policies of such
corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agency Services Address" means Bank of America, N.A.,
Independence Center, 15th Floor, NC1-001-15-04, 101 N. Tryon
Street, Charlotte, North Carolina 28255, Attn: Agency
Services, or such other address as may be identified by
written notice from the Administrative Agent to the
Borrower.
"Agents" means the Administrative Agent and the
Collateral Agent and any successors and assigns in such
capacity.
"Applicable Percentage" means, for Revolving Loans,
Swingline Loans, Letter of Credit Fees and Unused Fees, the
appropriate applicable percentages, in each case,
corresponding to the Leverage Ratio in effect as of the most
recent Calculation Date as shown below:
Applicable
Percentage
For
Eurodollar
Loans, Applicable Applicable
Prici CD Rate Percentage Percentage
ng Leverage Loans and For For
Level Ratio Letter of Base Rate Unused Fees
Credit Fees Loans
I <1.00 to 1.0 0.875% 0.0% 0.225%
II <1.50 to 1.0 1.125% 0.0% 0.275%
but
1.00 to 1.0
III < 2.0 to 1.0 1.375% 0.0% 0.325%
but
1.50 to 1.0
IV 2.00 to 1.0 1.625% 0.125% 0.375%
The Applicable Percentages shall be determined and
adjusted quarterly on the date (each a "Calculation Date")
five Business Days after the date on which the Borrower
delivers the officer's certificate in accordance with the
provisions of Section 7.1(c); provided that the initial
Applicable Percentages shall be based on Pricing Level IV
(as shown above) and shall remain at Pricing Level IV until
the first Calculation Date subsequent to March 29, 2000,
and, thereafter, the Applicable Percentages shall be
determined by the Leverage Ratio calculated as of the most
recent Calculation Date; and provided further that if the
Borrower fails to provide the officer's certificate required
by Section 7.1(c) on or before the most recent Calculation
Date, the Applicable Percentages from such Calculation Date
shall be based on Pricing Level IV until such time that an
appropriate officer's certificate is provided whereupon the
Applicable Percentages shall be determined by the then
current Leverage Ratio. Each Applicable Percentage shall be
effective from one Calculation Date until the next
Calculation Date except as set forth in the previous
sentence. Any adjustment in the Applicable Percentages
shall be applicable to all existing Eurodollar Loans, CD
Rate Loans, Base Rate Loans and Letters of Credit as well as
any new Eurodollar Loans, CD Rate Loans or Base Rate Loans
made or Letters of Credit issued.
The Borrower shall promptly deliver to the
Administrative Agent, at the address set forth on Schedule
11.1 and at the Agency Services Address, at the time the
officer's certificate is required to be delivered by Section
7.1(c), information regarding any change in the Leverage
Ratio that would change the existing Pricing Level pursuant
to the preceding paragraph.
"Bank of America" means Bank of America, N.A. and its
successors and assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11
of the United States Code, as amended, modified, succeeded
or replaced from time to time.
"BAS" means Banc of America Securities LLC and its
successors and assigns.
"Base Rate" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest whole
multiple of 1/100 of 1%) equal to the greater of (a) the
Federal Funds Rate in effect on such day plus one half of 1% or (b)
the Prime Rate in effect on such day. If for any reason the
Administrative Agent shall have determined (which
determination shall be conclusive absent manifest error)
that it is unable after due inquiry to ascertain the Federal
Funds Rate for any reason, including the inability or
failure of the Administrative Agent to obtain sufficient
quotations in accordance with the terms hereof, the Base
Rate shall be determined without regard to clause (a) of the
first sentence of this definition until the circumstances
giving rise to such inability no longer exist. Any change
in the Base Rate due to a change in the Prime Rate or the
Federal Funds Rate shall be effective on the effective date
of such change in the Prime Rate or the Federal Funds Rate,
respectively.
"Base Rate Loan" means any Loan bearing interest at a
rate determined by reference to the Adjusted Base Rate.
"Big R Procurement" means Big R Procurement Company,
LLC, a Delaware limited liability company.
"Borrower" means Ryan's Family Steak Houses, Inc., a
South Carolina corporation, together with any successors and
permitted assigns.
"Business Day" means any day other than a Saturday, a
Sunday, a legal holiday or a day on which banking
institutions are authorized or required by law or other
governmental action to close in Charlotte, North Carolina;
provided that in the case of Eurodollar Loans, such day is
also a day on which dealings between banks are carried on in
U.S. dollar deposits in the London interbank market.
"Calculation Date" has the meaning set forth in the
definition of Applicable Percentage.
"Capital Expenditures" means all expenditures of the
Credit Parties and their Subsidiaries which, in accordance
with GAAP, would be classified as capital expenditures,
including, without limitation, Capital Leases.
"Capital Lease" means, as applied to any Person, any
lease of any property (whether real, personal or mixed) by
that Person as lessee which, in accordance with GAAP, is or
should be accounted for as a capital lease on the balance
sheet of that Person and the amount of such obligation shall
be the capitalized amount thereof determined in accordance
with GAAP.
"Capital Stock" means (a) in the case of a corporation,
all classes of capital stock of such corporation, (b) in the
case of a partnership, partnership interests (whether
general or limited), (c) in the case of a limited liability
company, membership interests and (d) any other interest or
participation that confers on a Person the right to receive
a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Cash Equivalents" means (a) securities issued or
directly and fully guaranteed or insured by the United
States of America or any agency or instrumentality thereof
(provided that the full faith and credit of the United
States of America is pledged in support thereof) having
maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time and demand
deposits and certificates of deposit of (i) any Lender, (ii)
any domestic commercial bank having capital and surplus in
excess of $500,000,000 or (iii) any bank whose short-term
commercial paper rating from S&P is at least A-1 or the
equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"),
in each case with maturities of not more than 270 days from
the date of acquisition, (c) commercial paper and variable
or fixed rate notes issued by any Approved Bank (or by the
parent company thereof) or any variable rate notes issued
by, or guaranteed by, any domestic corporation rated A-1 (or
the equivalent thereof) or better by S&P or P-1 (or the
equivalent thereof) or better by Moody's and maturing within
six months of the date of acquisition, (d) repurchase
agreements with a bank or trust company (including any of
the Lenders) or recognized securities dealer having capital
and surplus in excess of $500,000,000 for direct obligations
issued by or fully guaranteed by the United States of
America in which a Credit Party shall have a perfected first
priority security interest (subject to no other Liens) and
having, on the date of purchase thereof, a fair market value
of at least 100% of the amount of the repurchase obligations
and (e) Investments, classified in accordance with GAAP as
current assets, in money market investment programs
registered under the Investment Company Act of 1940, as
amended, which are administered by reputable financial
institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the
character described in the foregoing subdivisions (a)
through (d).
"Cash Taxes" means, for any period, the aggregate of
all income taxes of the Credit Parties and their
Subsidiaries on a consolidated basis for such period, as
determined in accordance with GAAP, to the extent the same
are paid in cash during such period.
"CD Rate Loan" means any Loan bearing interest at a
rate determined by the Adjusted CD Rate
"Change of Control" means, with respect to the
Borrower, any of the following: (i) any "person" or "group"
(within the meaning of Section 13(d) or 14(d) of the
Exchange Act) has become, directly or indirectly, the
"beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed
to have "beneficial ownership" of all shares that any such
Person has the right to acquire, whether such right is
exercisable immediately or only after the passage of time),
by way of merger, consolidation or otherwise, of 20% or more
of the Voting Stock of the Borrower on a fully-diluted
basis, after giving effect to the conversion and exercise of
all outstanding warrants, options and other securities of
the Borrower (whether or not such securities are then
currently convertible or exercisable) other than Trimark
which may become the beneficial owner of up to 30% of the
Voting Stock of the Borrower as a result of the Share
Repurchase Program, or (ii) during any period of two
consecutive calendar years, individuals who at the beginning
of such period constituted the board of directors of the
Borrower cease for any reason to constitute a majority of
the directors of the Borrower then in office unless such new
directors were elected or designated by the directors of the
Borrower who constituted the board of directors of the
Borrower at the beginning of such period or such directors
were elected by shareholders to fill vacant seats for
resigning or retiring directors that were not replaced at
the time of such resignation or retirement.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as
amended, and any successor statute thereto, as interpreted
by the rules and regulations promulgated thereunder, in each
case as in effect from time to time. References to sections
of the Code should be construed to also refer to any
successor sections.
"Collateral" means a collective reference to the
collateral which is identified in, and at any time will be
covered by, the Collateral Documents.
"Collateral Agent" means Bank of America, N.A., in its
capacity as collateral agent for the Lenders and the
Noteholders under the Intercreditor Agreement and the Pledge
Agreement, together with any successor that becomes such in
accordance with the provisions of the Pledge Agreement and
the Intercreditor Agreement.
"Collateral Documents" means a collective reference to
the Pledge Agreement and such other documents executed and
delivered in connection with the attachment and perfection
of the Collateral Agent's security interests, for the
benefit of the Secured Parties, in the Capital Stock of each
Domestic and First-Tier Foreign Subsidiary of a Credit
Party, including without limitation, UCC financing
statements.
"Commitments" means (a) the commitment of each Lender
with respect to the Revolving Committed Amount, (b) the
commitment of the Issuing Lender with respect to the LOC
Committed Amount and (c) the commitment of the Swingline
Lender with respect to the Swingline Committed Amount.
"Consolidated Net Worth" means, as of any date with
respect to the Credit Parties and their Subsidiaries on a
consolidated basis, shareholders' equity or net worth, as
determined in accordance with GAAP.
"Credit Documents" means a collective reference to this
Credit Agreement, the Notes, any Joinder Agreement, the
Collateral Documents, the LOC Documents, the Fee Letter, the
Intercreditor Agreement and all other related agreements and
documents issued or delivered hereunder or thereunder or
pursuant hereto or thereto, in each case as the same may be
amended, modified, restated, supplemented, extended, renewed
or replaced from time to time, and "Credit Document" means
any one of them.
"Credit Parties" means the Borrower and the Guarantors
and "Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication,
(a) all of the obligations of the Credit Parties to the
Lenders (including the Issuing Lender) and the Agents,
whenever arising, under this Credit Agreement, the Notes,
the Collateral Documents or any of the other Credit
Documents to which any Credit Party is a party and (b) all
liabilities and obligations owing from any Credit Party to
any Lender, or any Affiliate of a Lender, arising under any
Hedging Agreement.
"Default" means any event, act or condition which with
notice or lapse of time, or both, would constitute an Event
of Default.
"Defaulting Lender" means, at any time, any Lender that
(a) has failed to make a Loan or purchase a Participation
Interest required pursuant to the terms of this Credit
Agreement when due (but only for so long as such Loan is not
made or such Participation Interest is not purchased), (b)
other than as set forth in the preceding clause (a), has
failed to pay to any Agent or any Lender an amount owed by
such Lender pursuant to the terms of this Credit Agreement
when due (but only for so long as such amount has not been
paid) or (c) has been deemed insolvent or has become subject
to a bankruptcy or insolvency proceeding or with respect to
which (or with respect to any assets of which) a receiver,
trustee or similar official has been appointed.
"Documentation Agent" shall have the meaning assigned
to such term in the heading hereof, together with any
successors and assigns.
"Dollars" and "$" means dollars in lawful currency of
the United States of America.
"Domestic Subsidiaries" means all direct and indirect
Subsidiaries of the Borrower that are domiciled,
incorporated or organized under the laws of any state of the
United States or the District of Columbia (or have any
material assets located in the United States or the District
of Columbia) whether existing as of the date hereof or
hereafter created or acquired.
"EBITDA" means, for any period with respect to the
Credit Parties and their Subsidiaries on a consolidated
basis, an amount equal to the sum of (a) Net Income for such
period (excluding the effect of any extraordinary or other
non-recurring gains or non-cash losses) plus (b) an amount
which, in the determination of Net Income for such period
has been deducted for (i) Interest Expense for such period,
(ii) total Federal, state, foreign or other income taxes for
such period and (iii) all depreciation and amortization for
such period, all as determined in accordance with GAAP.
"EBITR" means, for any period with respect to the
Credit Parties and their Subsidiaries on a consolidated
basis, an amount equal to the sum of (a) Net Income for such
period (excluding the effect of any extraordinary or other
non-recurring gains or non-cash losses) plus (b) an amount
which, in determination of Net Income for such period has
been deducted for (i) Interest Expense for such period, (ii)
total Federal, state, foreign or other income taxes for such
period and (iii) Rent Expense for such period.
"Effective Date" means the date on which the conditions
set forth in Section 5.1 shall have been fulfilled (or
waived in the sole discretion of the Required Lenders) and
on which the initial Loans shall have been made and/or the
initial Letters of Credit shall have been issued.
"Eligible Assignee" means (a) any Lender; (b) an
Affiliate of a Lender; and (c) any other Person approved by
the Administrative Agent, the Issuing Lender and the
Borrower (such approval not to be unreasonably withheld or
delayed); provided that (i) the Borrower's consent is not
required during the existence and continuation of a Default
or an Event of Default, (ii) approval by the Borrower shall
be deemed given if no objection is received by the assigning
Lender and the Administrative Agent from the Borrower within
five Business Days after notice of such proposed assignment
has been received by the Borrower and (iii) neither the
Borrower nor an Affiliate of the Borrower shall qualify as
an Eligible Assignee.
"Environmental Claim" means, with respect to the Real
Properties, any investigation, written notice, notice of
violation, written demand, written allegation, action, suit,
injunction, judgment, order, consent decree, penalty, fine,
lien, proceeding, or written claim (whether administrative,
judicial, or private in nature) arising (a) pursuant to, or
in connection with, an actual or alleged violation of, any
Environmental Law, (b) in connection with any Hazardous
Material, (c) from any assessment, abatement, removal,
remedial, corrective, or other response action required by
an Environmental Law or other order of a Governmental
Authority or (d) from any actual or alleged damage, injury,
threat, or harm to health or safety, natural resources, or
the environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a)
the protection of health or safety and the environment, (b)
the conservation, management, use or protection of natural
resources and wildlife, (c) the protection or use of surface
water and groundwater, (d) the management, manufacture,
possession, presence, use, generation, transportation,
treatment, storage, disposal, release, threatened release,
abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e)
pollution (including any release to land surface water and
groundwater) and includes, without limitation, the
Comprehensive Environmental Response, Compensation, and
Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et
seq., Solid Waste Disposal Act, as amended by the Resource
Conservation and Recovery Act of 1976 and Hazardous and
Solid Waste Amendments of 1984, 42 USC 6901 et seq., Federal
Water Pollution Control Act, as amended by the Clean Water
Act of 1977, 33 USC 1251 et seq., Clean Air Act of 1966, as
amended, 42 USC 7401 et seq., Toxic Substances Control Act
of 1976, 15 USC 2601 et seq., Hazardous Materials
Transportation Act, 49 USC App. 1801 et seq., Occupational
Safety and Health Act of 1970, as amended, 29 USC 651 et
seq., Oil Pollution Act of 1990, 33 USC 2701 et seq.,
Emergency Planning and Community Right-to-Know Act of 1986,
42 USC 11001 et seq., National Environmental Policy Act of
1969, 42 USC 4321 et seq., Safe Drinking Water Act of 1974,
as amended, 42 USC 300(f) et seq., any analogous
implementing or successor law, and any amendment, rule,
regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Credit Party
to any Person of (a) shares of its Capital Stock or other
equity interests, (b) any shares of its Capital Stock or
other equity interests pursuant to the exercise of options
(other than Capital Stock issued to employees and directors
pursuant to employees or directors stock option plans and
Capital Stock issued to consultants) or warrants or (c) any
shares of its Capital Stock or other equity interests
pursuant to the conversion of any debt securities to equity.
The amount of any Equity Issuance shall be the net cash
proceeds derived therefrom, including, in the case of any
conversion of any debt securities into equity the principal
amount of such debt.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended, and any successor statute thereto,
as interpreted by the rules and regulations thereunder, all
as the same may be in effect from time to time. References
to sections of ERISA shall be construed also to refer to any
successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit
Party or any of its Subsidiaries within the meaning of
Section 4001(a)(14) of ERISA, or is a member of a group
which includes any Credit Party or any of its Subsidiaries
and which is treated as a single employer under Sections
414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest based
at a rate determined by reference to the Eurodollar Rate.
"Eurodollar Rate" means, for the Interest Period for
each Eurodollar Loan comprising part of the same borrowing
(including conversions, extensions and renewals), a per
annum interest rate determined pursuant to the following
formula:
Eurodollar Rate = London Interbank Offered Rate
1 - Eurodollar Reserve Percentage
"Eurodollar Reserve Percentage" means for any day, that
percentage (expressed as a decimal) which is in effect from
time to time under Regulation D, as such regulation may be
amended from time to time or any successor regulation, as
the maximum reserve requirement (including, without
limitation, any basic, supplemental, emergency, special, or
marginal reserves) applicable with respect to Eurocurrency
liabilities as that term is defined in Regulation D (or
against any other category of liabilities that includes
deposits by reference to which the interest rate of
Eurodollar Loans is determined), whether or not a Lender has
any Eurocurrency liabilities subject to such reserve
requirement at that time. Eurodollar Loans shall be deemed
to constitute Eurocurrency liabilities and as such shall be
deemed subject to reserve requirements without benefits of
credits for proration, exceptions or offsets that may be
available from time to time to a Lender. The Eurodollar
Rate shall be adjusted automatically on and as of the
effective date of any change in the Eurodollar Reserve
Percentage.
"Event of Default" means any of the events or
circumstances specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of
1934 and the rules and regulations promulgated thereunder,
as amended, modified, succeeded or replaced from time to
time.
"Existing Letters of Credit" means the letters of
credit described by date of issuance, letter of credit
number, undrawn amount, name of beneficiary and date of
expiry on Schedule 1.1(b).
"Extension of Credit" means, as to any Lender, the
making of a Loan by such Lender (or a participation therein
by a Lender) or the issuance of, or participation in, a
Letter of Credit by such Lender.
"Federal Funds Rate" means for any day the rate of
interest per annum (rounded upward, if necessary, to the
nearest 1/100th of 1%) equal to the weighted average of the
rates on overnight Federal funds transactions with members
of the Federal Reserve System arranged by Federal funds
brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such
day; provided that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on
such transactions on the next preceding Business Day and (b)
if no such rate is so published on such next preceding
Business Day, the Federal Funds Rate for such day shall be
the average rate quoted to the Administrative Agent on such
day on such transactions as determined by the Administrative
Agent.
"Fee Letter" means that certain Fee Letter dated as of
October 21, 1999 among the Borrower, Bank of America and
BAS.
"First Tier Foreign Subsidiary" means each Foreign
Subsidiary in which any one or more of the Credit Parties
owns directly more than 50%, in the aggregate, of the Voting
Stock of such Foreign Subsidiary.
"Fixed Charge Coverage Ratio" means the ratio of (a)
the sum of (i) EBITR for the prior twelve month period minus
(ii) Cash Taxes for the prior twelve month period (excluding
back taxes, interest and penalties associated therewith paid
by the Credit Parties in connection with any audit of a
prior year's tax filings during the prior twelve month
period in an amount not to exceed $4,000,000 in the
aggregate) to (b) the sum of (i) cash Interest Expense for
the prior twelve month period plus (ii) Scheduled Funded
Debt Payments for the prior twelve month period plus (iii)
Rent Expense for the prior twelve month period.
"Floating CD Rate" means the sum of (a) the product of
(i) the Three-Month Secondary CD Rate and (ii) a fraction,
the numerator of which is one and the denominator of which
is one minus the CD Reserve Percentage and (b) the CD
Assessment Rate. For purposes of this definition, the
following terms shall have the following meanings: "Three-
Month Secondary CD Rate" means, for any day, the secondary
market rate for three-month certificates of deposit reported
as being in effect on such day (or if such day is not a
Business Day, the next following Business Day) by the Board
of Governors of the Federal Reserve System (the "Board"),
through the public information telephone line of the Federal
Reserve Bank of New York (which rate will, under current
practices of the Board, be published in Federal Reserve
Statistical Release H.15(519) during the week following such
day), or, if such rate is not so reported, the average
(rounded upwards to the nearest 1/100th of 1%) of the
secondary market quotations for three-month certificates of
deposit of major money center banks in New York City
received at approximately 10:00 a.m., New York City time, on
such day or next preceding Business Day by the Swingline
Lender from three New York City negotiable certificate of
deposit dealers of recognized standing selected by it; "CD
Reserve Percentage" means for any day as applied to any
calculation of the Floating CD Rate, that percentage
(expressed as a decimal) which is in effect on such day, as
prescribed by the Board for determining the maximum reserve
requirement for a Depositary Institution (as defined in
Regulation D of the Board) in respect of new non-personal
time deposits in Dollars having a maturity of 30 days or
more; and "CD Assessment Rate" means for any day the net
annual assessment rate (rounded upwards, if necessary, to
the next 1/100 of 1%) determined by the Swingline Lender to
be payable on such day to the Federal Deposit Insurance
Corporation or any successor ("FDIC") for FDIC's insuring
time deposits made in Dollars at offices of the Swingline
Lender in the United States.
"Foreign Subsidiary" means any Subsidiary of the
Borrower or any other Credit Party that is not a Domestic
Subsidiary.
"Funded Debt" means, without duplication, the sum of
(a) all outstanding Indebtedness (other than (i) Hedging
Agreements and (ii) Indebtedness owing from one Credit Party
to another Credit Party) of the Credit Parties and their
Subsidiaries for borrowed money, (b) all purchase money
Indebtedness of the Credit Parties and their Subsidiaries,
(c) the principal portion of all obligations of the Credit
Parties and their Subsidiaries under Capital Leases, (d) all
obligations, contingent or otherwise, relative to the face
amount of all letters of credit, whether or not drawn, and
banker's acceptances created for the account of a Credit
Party or its Subsidiaries (it being understood that, to the
extent an undrawn letter of credit supports another
obligation consisting of Indebtedness, in calculating
aggregated Indebtedness only such other obligation shall be
included), (e) all Guaranty Obligations of the Credit
Parties and their Subsidiaries with respect to Funded Debt
of another Person, (f) all Funded Debt of another entity
secured by a Lien on any property of the Credit Parties and
their Subsidiaries whether or not such Funded Debt has been
assumed by a Credit Party or any of its Subsidiaries, (g)
all Funded Debt of any partnership or unincorporated joint
venture to the extent a Credit Party or one of its
Subsidiaries is legally obligated or has a reasonable
expectation of being liable with respect thereto, net of any
assets of such partnership or joint venture and (h) the
principal balance outstanding under any synthetic lease, tax
retention operating lease, off-balance sheet loan or similar
off-balance sheet financing product where such transaction
is considered borrowed money indebtedness for tax purposes
but is classified as an operating lease in accordance with
GAAP.
"GAAP" means generally accepted accounting principles
in the United States applied on a consistent basis and
subject to Section 1.3.
"Governmental Authority" means any Federal, state,
local, provincial or foreign court, governmental agency,
authority, instrumentality or regulatory body, or any
securities exchange or self-regulatory organization.
"Guarantor" means each of the Domestic Subsidiaries of
the Borrower and each Additional Credit Party which has
executed a Joinder Agreement or otherwise become a Guarantor
hereunder, together with their successors and assigns.
"Guaranty Obligations" means, with respect to any
Person, without duplication, any obligations (other than
endorsements in the ordinary course of business of
negotiable instruments for deposit or collection)
guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect,
and including without limitation any obligation, whether or
not contingent, (a) to purchase any such Indebtedness or
other obligation or any property constituting security
therefor, (b) to advance or provide funds or other support
for the payment or purchase of such Indebtedness or
obligation or to maintain working capital, solvency or other
balance sheet condition of such other Person (including,
without limitation, maintenance agreements, comfort letters,
take or pay arrangements, put agreements or similar
agreements or arrangements) for the benefit of the holder of
Indebtedness of such other Person, (c) to lease or purchase
property, securities or services primarily for the purpose
of assuring the owner of such Indebtedness or (d) to
otherwise assure or hold harmless the owner of such
Indebtedness or obligation against loss in respect thereof.
The amount of any Guaranty Obligation hereunder shall
(subject to any limitations set forth therein) be deemed to
be an amount equal to the outstanding principal amount (or
maximum principal amount, if larger) of the Indebtedness in
respect of which such Guaranty Obligation is made unless
such primary obligation in respect of which such Guaranty
Obligation is made is not stated or determinable, in which
case the amount of such Guaranty Obligation shall be the
maximum reasonably anticipated liability in respect thereof
(assuming the guaranteeing person is required to perform).
"Hazardous Materials" means any substance, material or
waste defined in or regulated under any Environmental Laws.
"Hedging Agreements" means any interest rate protection
agreements, foreign currency exchange agreements, currency
swap agreements, commodity purchase or option agreements or
other interest or exchange rate hedging agreements, in each
case, entered into or purchased by a Credit Party.
"Immaterial Subsidiary" means any Subsidiary of the
Borrower which accounted for less than (a) two percent (2%)
of the consolidated assets of the Borrower and its
Subsidiaries, on a consolidated basis, as of the end of the
most recent fiscal year of the Borrower and (b) two percent
(2%) of the consolidated revenues of the Borrower and its
Subsidiaries, on a consolidated basis, for the four fiscal
quarters ending as of the most recent fiscal year of the
Borrower.
"Indebtedness" of any Person means, without
duplication, (a) all obligations of such Person for borrowed
money, (b) all obligations of such Person evidenced by
bonds, debentures, notes or similar instruments, or upon
which interest payments are customarily made (c) all
obligations of such Person under conditional sale or other
title retention agreements relating to property purchased by
such Person to the extent of the value of such property
(other than customary reservations or retentions of title
under agreements with suppliers entered into in the ordinary
course of business), (d) all obligations, other than
intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by
such Person which would appear as liabilities on a balance
sheet of such Person, (e) all Indebtedness of others secured
by (or for which the holder of such Indebtedness has an
existing right, contingent or otherwise, to be secured by)
any Lien on, or payable out of the proceeds of production
from, property owned or acquired by such Person, whether or
not the obligations secured thereby have been assumed, (f)
all Guaranty Obligations of such Person, (g) the principal
portion of all obligations of such Person under (i) Capital
Leases and (ii) any synthetic lease, tax retention operating
lease, off-balance sheet loan or similar off-balance sheet
financing product where such transaction is considered
borrowed money indebtedness for tax purposes but is
classified as an operating lease in accordance with GAAP,
(h) all obligations of such Person in respect of Hedging
Agreements, (i) the maximum amount of all performance and
standby letters of credit issued or bankers' acceptances
facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the
extent unreimbursed), (j) all preferred stock issued by such
Person and required by the terms thereof to be redeemed, or
for which mandatory sinking fund payments are due by a fixed
date, (k) the aggregate amount of uncollected accounts
receivable of such Person subject at such time to a sale of
receivables (or similar transaction) regardless of whether
such transaction is effected without recourse to such Person
or in a manner that would not be reflected on the balance
sheet of such Person in accordance with GAAP, and (l) all
obligations of such Person to repurchase any securities
which repurchase obligation is related to the issuance
thereof, including, without limitation, obligations commonly
known as residual equity appreciation potential shares. The
Indebtedness of any Person shall include the Indebtedness of
any partnership or unincorporated joint venture in which
such Person is legally obligated or has a reasonable
expectation of being liable with respect thereto.
"Intercreditor Agreement" means that certain
Intercreditor and Collateral Agency Agreement dated as of
the date hereof among the Collateral Agent, the
Administrative Agent and the Noteholders, as amended,
modified, supplemented or restated from time to time.
"Interest Expense" means, for any period, with respect
to the Credit Parties and their Subsidiaries on a
consolidated basis, all interest expense, including the
interest component under Capital Leases, as determined in
accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans
and CD Rate Loans, the last day of each calendar quarter and
the Maturity Date and (b) as to Eurodollar Loans, the last
day of each applicable Interest Period and the Maturity
Date, and in addition, where the applicable Interest Period
for a Eurodollar Loan is greater than three months, then
also the date three months from the beginning of the
Interest Period and each three months thereafter.
"Interest Period" means, (i) as to Revolving Loans that
are Eurodollar Loans, a period of one, two, three or six
months' duration, as the Borrower may elect, commencing, in
each case, on the date of the borrowing (including
continuations and conversions thereof) and (ii) as to
Swingline Loans that are Eurodollar Loans, a period of
seven, fourteen or twenty-one days' duration as the Borrower
may elect, commencing, in each case, on the date of the
borrowing; provided, however, (a) if any Interest Period
would end on a day which is not a Business Day, such
Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business
Day falls in the next succeeding calendar month, then on the
next preceding Business Day), (b) no Interest Period shall
extend beyond the Maturity Date and (c) where an Interest
Period begins on a day for which there is no numerically
corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on
the last Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition
(whether for cash, property, services, assumption of
Indebtedness, securities or otherwise) of assets, shares of
Capital Stock, bonds, notes, debentures, partnership, joint
ventures or other ownership interests or other securities of
such Person or (b) any deposit with, or advance, loan or
other extension of credit to, such Person (other than
deposits made in connection with the purchase of equipment
or other assets in the ordinary course of business) or (c)
any other capital contribution to or investment in such
Person, including, without limitation, any Guaranty
Obligation (including any support for a Letter of Credit
issued on behalf of such Person) incurred for the benefit of
such Person.
"Issuing Lender" means (a) with respect to any Existing
Letter of Credit, Wachovia Bank, N.A. and (b) with respect
to any Letter of Credit (other than any Existing Letter of
Credit), Bank of America, N.A. or any successor Issuing
Lender.
"Issuing Lender Fees" has the meaning set forth in
Section 3.4(c).
"Joinder Agreement" means a Joinder Agreement
substantially in the form of Exhibit 7.12.
"Lender" means any of the Persons identified as a
"Lender" on the signature pages hereto, the Swingline
Lender, the Issuing Lender and any Eligible Assignee which
may become a Lender by way of assignment in accordance with
the terms hereof, together with their successors and
permitted assigns.
"Letter of Credit" means (a) a letter of credit issued
for the account of a Credit Party by the Issuing Lender
pursuant to Section 2.2, as any such letter of credit may be
amended, modified, extended, renewed or replaced and (b) any
Existing Letter of Credit.
"Letter of Credit Fees" has the meaning set forth in
Section 3.4(b).
"Leverage Ratio" means, as of the end of each fiscal
quarter, the ratio of (a) total Funded Debt on such date to
(b) EBITDA for the twelve month period ending on such date.
"Lien" means any mortgage, pledge, hypothecation,
assignment, deposit arrangement, security interest,
encumbrance, lien (statutory or otherwise), preference,
priority or charge of any kind, including, without
limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any
lease in the nature thereof.
"Loan" or "Loans" means the Revolving Loans and the
Swingline Loans (or a portion of any Revolving Loan or
Swingline Loan), individually or collectively, as
appropriate.
"LOC Committed Amount" has the meaning set forth in
Section 2.2(a).
"LOC Documents" means, with respect to any Letter of
Credit, such Letter of Credit, any amendments thereto, any
documents delivered in connection therewith, any application
therefor, and any agreements, instruments, guarantees or
other documents (whether general in application or
applicable only to such Letter of Credit) governing or
providing for (a) the rights and obligations of the parties
concerned or at risk or (b) any collateral security for such
obligations.
"LOC Obligations" means, at any time, the sum of (a)
the maximum amount which is, or at any time thereafter may
become, available to be drawn under Letters of Credit then
outstanding, assuming compliance with all requirements for
drawings referred to in such Letters of Credit plus (b) the
aggregate amount of all drawings under Letters of Credit
honored by the Issuing Lender but not theretofore
reimbursed.
"LOC Participants" means the Lenders.
"London Interbank Offered Rate" means, with respect to
any Eurodollar Loan for the Interest Period applicable
thereto, the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Telerate
Page 3750 (or any successor page) as the London interbank
offered rate for deposits in Dollars at approximately 11:00
A.M. (London time) two Business Days prior to the first day
of such Interest Period for a term comparable to such
Interest Period; provided, however, if more than one rate is
specified on Telerate Page 3750, the applicable rate shall
be the arithmetic mean of all such rates. If, for any
reason, such rate is not available, the term "London
Interbank Offered Rate" shall mean, with respect to any
Eurodollar Loan for the Interest Period applicable thereto,
the rate of interest per annum (rounded upwards, if
necessary, to the nearest 1/100 of 1%) appearing on Reuters
Screen LIBO Page as the London interbank offered rate for
deposits in Dollars at approximately 11:00 A.M. (London
time) two Business Days prior to the first day of such
Interest Period for a term comparable to such Interest
Period; provided, however, if more than one rate is
specified on Reuters Screen LIBO Page, the applicable rate
shall be the arithmetic mean of all such rates (rounded
upwards, if necessary, to the nearest 1/100 of 1%).
"Mandatory Borrowing" has the meaning set forth in
Section 2.2(e).
"Material Adverse Effect" means a material adverse
effect on (a) the business, assets, liabilities (actual or
contingent), operations, condition (financial or otherwise)
or prospects of the Credit Parties and their Subsidiaries
taken as a whole, (b) the ability of the Credit Parties and
their Subsidiaries taken as a whole to perform their
obligations under this Credit Agreement or any of the other
Credit Documents, or (c) the validity or enforceability of
this Credit Agreement, any of the other Credit Documents, or
the rights and remedies of the Lenders hereunder or
thereunder taken as a whole.
"Maturity Date" means January 28, 2005.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the
business of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV
of ERISA which is a multiemployer plan as defined in Section
3(37) or 4001(a)(3) of ERISA.
"Multiple Employer Plan" means a Single Employer Plan
to which any Credit Party or any of its Subsidiaries or any
ERISA Affiliate and at least one employer other than a
Credit Party or any of its Subsidiaries or any ERISA
Affiliate are contributing sponsors.
"Net Income" means, for any period, the net income
after taxes for such period of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined in
accordance with GAAP.
"Non-Excluded Taxes" has the meaning set forth in
Section 3.14.
"Non-Operating Subsidiaries" means the collective
reference to Big R, Ryan's TLC, Rymark and Ryan's
Properties.
"Note" or "Notes" means the Revolving Notes and the
Swingline Note, individually or collectively, as
appropriate.
"Noteholders" means the holders from time to time of
the 9.02% Senior Notes due January 28, 2008 (and any notes
issued in substitution thereof) issued pursuant to separate
Note Purchase Agreements.
"Note Purchase Agreements" means the collective
reference to those separate Note Purchase Agreements dated
as of January 28, 2000 among the Borrower and each of the
respective purchasers identified therein, as the same may be
amended, modified, supplemented or restated from time to
time.
"Notice of Borrowing" means a request by the Borrower
for a Revolving Loan, in the form of Exhibit 2.1(b).
"Notice of Continuation/Conversion" means a request by
the Borrower to continue an existing Eurodollar Loan to a
new Interest Period or to convert a Eurodollar Loan to a
Base Rate Loan or a Base Rate Loan to a Eurodollar Loan, in
the form of Exhibit 2.4.
"Operating Leases" means, as applied to any Person, any
lease (including, without limitation, leases which may be
terminated by the lessee at any time) of any Property which
is not a Capital Lease other than any such lease in which
such Person is the lessor.
"Operating Partners Program" means the Borrower's
program whereby employees of the Borrower or its
Subsidiaries who hold the positions of restaurant general
manager, district manager or regional manager or positions
of like authority and similar responsibilities may purchase
Capital Stock of the Borrower and may obtain from the
Borrower a guarantee of loans received by such an employee
to enable such employee to purchase such Capital Stock
pursuant to the program.
"Participation Interest" means the Extension of Credit
by a Lender by way of a purchase of a participation in
Letters of Credit or LOC Obligations as provided in Section
2.2, in Swingline Loans as provided in Section 2.3(c) or in
any Loans as provided in Section 3.9.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and
any successor thereto.
"Permitted Acquisitions" means an Acquisition by the
Borrower for consideration no greater than the fair market
value; provided that (a) the Capital Stock or Property
acquired in such Acquisition are in, or used or useful in,
the same or similar or related line of business as the
Borrower is engaged in on the Closing Date, (b) the
Administrative Agent shall have received all items in
respect of the Capital Stock or Property acquired in such
Acquisition required to be delivered by the terms of Section
7.9 and/or Section 7.12, (c) in the case of an Acquisition
of the Capital Stock of another Person, the board of
directors (or other comparable governing body) of such other
Person shall have duly approved such Acquisition, (d) the
Borrower shall have delivered to the Administrative Agent a
Pro Forma Compliance Certificate demonstrating that, upon
giving effect to such Acquisition on a Pro Forma Basis, the
Credit Parties shall be in compliance with all of the
financial covenants set forth in Section 7.2, (e) the
representations and warranties made by the Credit Parties in
any Credit Document shall be true and correct in all
material respects at and as if made as of the date of such
Acquisition (after giving effect thereto) except to the
extent such representations and warranties expressly relate
to an earlier date, (f) after giving effect to such
Acquisition, no Default or Event of Default shall exist, (g)
after giving effect to such Acquisition, the amount of
availability existing under the Revolving Committed Amount
shall be greater than or equal to $20,000,000 and (h) the
cash consideration and non-cash consideration (including,
without limitation, assumed Indebtedness) paid in any single
Acquisition shall not exceed $20,000,000 and the cash
consideration and non-cash consideration (including, without
limitation, assumed Indebtedness) paid in the aggregate for
all Acquisitions shall not exceed $40,000,000 during the
term of this Credit Agreement.
"Permitted Investments" means Investments which are (a)
cash or Cash Equivalents, (b) accounts receivable created,
acquired or made in the ordinary course of business and
payable or dischargeable in accordance with customary trade
terms, (c) inventory, raw materials and general intangibles
(to the extent such general intangibles are not a Capital
Expenditure) acquired in the ordinary course of business,
(d) Investments by a Credit Party in or to another Credit
Party and (e) Permitted Acquisitions.
"Permitted Liens" means (a) Liens securing the
Obligations (as defined in the Intercreditor Agreement), (b)
Liens for taxes not yet due or Liens for taxes being
contested in good faith by appropriate proceedings for which
adequate reserves determined in accordance with GAAP have
been established (and as to which the property subject to
any such Lien is not yet subject to foreclosure, sale,
collection, levy or loss on account thereof), (c) Liens in
respect of property imposed by law arising in the ordinary
course of business such as materialmen's, mechanics',
warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and
payable or which are being contested in good faith by
appropriate proceedings for which adequate reserves
determined in accordance with GAAP have been established
(and as to which the property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account
thereof), (d) pledges or deposits made in the ordinary
course of business to secure payment of worker's
compensation insurance, unemployment insurance, pensions or
social security programs, (e) Liens arising from good faith
deposits in connection with or to secure performance of (i)
tenders, bids, leases, government contracts, performance and
return-of-money bonds and other similar obligations or (ii)
leases of real property, in each case incurred in the
ordinary course of business (other than obligations in
respect of the payment of borrowed money), (f) Liens arising
from good faith deposits in connection with or to secure
performance of statutory obligations and surety and appeal
bonds, (g) easements, rights-of-way, restrictions (including
zoning restrictions), matters of plat, minor defects or
irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use
of the encumbered property for its intended purposes, (h)
judgment Liens that would not constitute an Event of
Default, (i) Liens in connection with Indebtedness permitted
by Section 8.1(c); provided that (i) any such Lien shall
extend solely to the item of such Property so acquired and
(ii) any such Lien shall attach or be created
contemporaneously with, or within 180 days after, the
acquisition of such Property, (j) Liens arising by virtue of
any statutory or common law provision relating to banker's
liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor
depository institution, (k) any precautionary filings of
financing statements under the UCC made in relation to
leases of equipment which leases are otherwise permitted by
this Credit Agreement and (l) Liens of a collecting bank
arising under Section 4-210 of the UCC on items in the
course of collection.
"Person" means any individual, partnership, joint
venture, firm, corporation, limited liability company,
association, trust, fund or other enterprise (whether or not
incorporated), or any Governmental Authority.
"Plan" means any employee benefit plan (as defined in
Section 3(3) of ERISA) which is covered by ERISA and with
respect to which any Credit Party or any of its Subsidiaries
or any ERISA Affiliate is (or, if such plan were terminated
at such time, would under Section 4069 of ERISA be deemed to
be) an "employer" within the meaning of Section 3(5) of
ERISA.
"Pledge Agreement" means the Pledge Agreement executed
and delivered by each of the Credit Parties in favor of the
Collateral Agent, for the benefit of the Lenders (and any
Affiliate of a Lender that enters into a Hedging Agreement
with a Credit Party) and the Noteholders, as amended,
modified, extended, supplemented, restated, renewed or
replaced from time to time.
"Prime Rate" means the per annum rate of interest
established from time to time by the Administrative Agent as
its prime rate in effect at its principal office in
Charlotte, North Carolina (or such other principal office of
the Administrative Agent as communicated in writing to the
Borrower and the Lenders). Any change in the interest rate
resulting from a change in the Prime Rate shall become
effective as of 12:01 a.m. of the Business Day on which each
change in the Prime Rate is announced by the Administrative
Agent. The Prime Rate is a reference rate used by the
Administrative Agent in determining interest rates on
certain loans and is not intended to be the lowest rate of
interest charged on any extension of credit to any debtor.
"Prior Credit Agreements" means the collective
reference to (a) that certain Credit Agreement, dated as of
June 5, 1996, among the Borrower, Wachovia Bank, N.A., as
agent, and the lenders party thereto, as amended or modified
from time to time and (b) those certain credit agreements of
the Borrower identified on Schedule 1.1(b).
"Pro Forma Basis" means, for purposes of calculating
(utilizing the principles set forth in the second paragraph
of Section 1.3) compliance with each of the financial
covenants set forth in Section 7.2 in respect of a proposed
Acquisition as referred to in clause (d) of the definition
of "Permitted Acquisition" set forth in this Section 1.1,
that such Acquisition shall be deemed to have occurred as of
the first day of the four fiscal-quarter period ending as of
the most recent fiscal quarter end preceding the date of
such Acquisition with respect to which the Administrative
Agent has received the financial statements and officer's
certificate required to be delivered pursuant to Section
7.1(a) or (b), as applicable, and Section 7.1(c). In
connection with any calculation of the financial covenants
set forth in Section 7.2 and upon giving effect on a Pro
Forma Basis to any Acquisition, (a) any Indebtedness
incurred by any Credit Party or any of its Subsidiaries in
connection with such Acquisition (i) shall be deemed to have
been incurred as of the first day of the applicable period
and (ii) if such Indebtedness has a floating or formula
rate, such Indebtedness shall have an implied rate of
interest for the applicable period for purposes of this
definition determined by utilizing the rate which is or
would be in effect with respect to such Indebtedness as at
the relevant date of determination and (b) income statement
items (whether positive or negative) attributable to the
Capital Stock or Property acquired in such Acquisition shall
be included to the extent relating to the relevant period
and to the extent, and in the same manner, as such items are
included for the Credit Parties.
"Pro Forma Compliance Certificate" means a certificate
of a Responsible Officer of the Borrower delivered to the
Administrative Agent in connection with any Acquisition as
referred to in clause (d) of the definition of "Permitted
Acquisition" set forth in this Section 1.1 and containing
reasonably detailed calculations, upon giving effect to such
Acquisition on a Pro Forma Basis, of each of the financial
covenants set forth in Section 7.2 as of the most recent
fiscal quarter end preceding the date of such Acquisition
with respect to which the Administrative Agent shall have
received the financial statements and officer's certificate
required to be delivered pursuant to Section 7.1(a) or (b),
as applicable, and Section 7.1(c).
"Property" means any interest in any kind of property
or asset, whether real, personal or mixed, or tangible or
intangible.
"Real Properties" means the real properties that the
Credit Parties may own, operate or lease (as lessee or
sublessee) from third parties from time to time.
"Regulation D, O, T, U or X" means Regulation D, O, T,
U or X, respectively, of the Board of Governors of the
Federal Reserve System as from time to time in effect and
any successor to all or a portion thereof.
"Rent Expense" means, for any period, the total rent
expense for Operating Leases of the Credit Parties and their
Subsidiaries on a consolidated basis, as determined in
accordance with GAAP.
"Reportable Event" means a "reportable event" as
defined in Section 4043 of ERISA with respect to which the
notice requirements to the PBGC have not been waived.
"Required Holders" means, at any time, the holders of
at least a majority in principal amount of the Senior Notes
at the time outstanding (exclusive of Senior Notes then
owned by the Borrower or any of its Affiliates).
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50%
of the Credit Exposure of all Lenders at such time;
provided, however, that if any Lender shall be a Defaulting
Lender at such time then there shall be excluded from the
determination of Required Lenders the aggregate principal
amount of Credit Exposure of such Lender at such time. For
purposes of the preceding sentence, the term "Credit
Exposure" as applied to each Lender shall mean (a) at any
time prior to the termination of the Commitments, the
Revolving Loan Commitment Percentage of such Lender
multiplied by the Revolving Committed Amount, and (b) at any
time after the termination of the Commitments, the sum of
(i) the principal balance of the outstanding Loans of such
Lender plus (ii) such Lender's Participation Interests in
the face amount of the outstanding Letters of Credit and
Swingline Loans.
"Requirement of Law" means, as to any Person, the
articles or certificate of incorporation and by-laws or
other organizational or governing documents of such Person,
and any law, treaty, rule or regulation or final, non-
appealable determination of an arbitrator or a court or
other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material
property is subject.
"Responsible Officer" means the chief executive
officer, president, chief financial officer, treasurer, or
any other senior officer of a Credit Party designated as
such to the Administrative Agent by such Credit Party.
"Revolving Committed Amount" means TWO HUNDRED MILLION
DOLLARS ($200,000,000) or such lesser amount to which the
Revolving Committed Amount may be reduced pursuant to
Section 2.1(d) or Section 3.4.
"Revolving Loan Commitment Percentage" means, for each
Lender, the percentage identified as its Revolving Loan
Commitment Percentage on Schedule 1.1(a), as such percentage
may be modified in connection with any assignment made in
accordance with the provisions of Section 11.3.
"Revolving Loans" means the Revolving Loans made to the
Borrower by the Lenders pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the
promissory notes of the Borrower in favor of each of the
Lenders evidencing the Revolving Loans provided pursuant to
Section 2.1, individually or collectively, as appropriate,
as such promissory notes may be amended, modified,
supplemented, extended, renewed or replaced from time to
time and as evidenced in the form of Exhibit 2.1(e).
"Ryan's Properties" means Ryan's Properties, Inc., a
Delaware corporation.
"Ryan's TLC" means Ryan's Family Steak Houses TLC,
Inc., a Delaware corporation.
"Rymark" means Rymark Holdings, Inc., a Delaware
corporation.
"S&P" means Standard & Poor's Rating Services, a
division of The McGraw-Hill Companies, Inc. or any successor
or assignee of the business of such division in the business
of rating securities.
"Scheduled Funded Debt Payments" means, as of the end
of each fiscal quarter of the Borrower, for the Credit
Parties and their Subsidiaries on a consolidated basis, the
sum of all scheduled payments of principal on Funded Debt
for the applicable period ending on such date (including the
principal component of payments due on Capital Leases during
the applicable period ending on such date); it being
understood that Scheduled Funded Debt Payments shall not
include voluntary prepayments or the mandatory prepayments
required pursuant to Section 3.3.
"Secured Parties" means a collective reference to the
Lenders and the Noteholders, and "Secured Party" means any
one of them.
"Securities Act" means the Securities Act of 1933, as
amended, and the rules and regulations promulgated
thereunder.
"Senior Managing Agent" shall have the meaning assigned
to such term in the heading hereof, together with any
successors and assigns.
"Senior Notes" means the senior notes purchased by the
Noteholders pursuant to the Note Purchase Agreements.
"Share Repurchase Program" means the share repurchase
program authorized by the board of directors of the
Borrower.
"Single Employer Plan" means any Plan which is covered
by Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of a
particular date, that on such date (a) such Person is able
to pay its debts and other liabilities, contingent
obligations and other commitments as they mature in the
normal course of business, (b) such Person does not intend
to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such
debts and liabilities mature in their ordinary course, (c)
such Person is not engaged in a business or a transaction,
and is not about to engage in a business or a transaction,
for which such Person's assets would constitute unreasonably
small capital after giving due consideration to the
prevailing practice in the industry in which such Person is
engaged or is to engage, (d) the fair value of the assets of
such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of
such Person and (e) the present fair saleable value of the
assets of such Person is not less than the amount that will
be required to pay the probable liability of such Person on
its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is
intended that such liabilities will be computed at the
amount which, in light of all the facts and circumstances
existing at such time, represents the amount that can
reasonably be expected to become an actual or matured
liability.
"Subsidiary" means, as to any Person, (a) any
corporation more than 50% of whose stock of any class or
classes having by the terms thereof ordinary voting power to
elect a majority of the directors of such corporation
(irrespective of whether or not at the time, any class or
classes of such corporation shall have or might have voting
power by reason of the happening of any contingency) is at
the time owned by such Person directly or indirectly through
Subsidiaries, and (b) any partnership, limited liability
company, association, joint venture or other entity in which
such person directly or indirectly through Subsidiaries has
more than a 50% equity interest at any time.
"Swingline Lender" means Bank of America, N.A. or any
successor Swingline Lender.
"Swingline Loans" means the loans made by the Swingline
Lender pursuant to Section 2.3.
"Swingline Committed Amount" means Ten Million Dollars
($10,000,000).
"Swingline Loan Request" means a request by the
Borrower for a Swingline Loan in substantially the form of
Exhibit 2.3(b).
"Swingline Note" means the promissory note of the
Borrower in favor of the Swingline Lender evidencing the
Swingline Loans provided pursuant to Section 2.3, as such
promissory note may be amended, modified, supplemented,
extended, renewed or replaced from time to time in and as
evidenced by the form of Exhibit 2.3(d).
"Syndication Agent" shall have the meaning assigned to
such term in the heading hereof, together with any
successors and assigns.
"Termination Event" means (a) with respect to any
Single Employer Plan, the occurrence of a Reportable Event
or the substantial cessation of operations (within the
meaning of Section 4062(e) of ERISA); (b) the withdrawal of
any Credit Party or any of its Subsidiaries or any ERISA
Affiliate from a Multiple Employer Plan during a plan year
in which it was a substantial employer (as such term is
defined in Section 4001(a)(2) of ERISA), or the termination
of a Multiple Employer Plan; (c) the distribution of a
notice of intent to terminate or the actual termination of a
Plan pursuant to Section 4041(a)(2) or 4041A of ERISA; (d)
the institution of proceedings to terminate or the actual
termination of a Plan by the PBGC under Section 4042 of
ERISA; (e) any event or condition which might reasonably
constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to
administer, any Plan; or (f) the complete or partial
withdrawal of any Credit Party or any of its Subsidiaries or
any ERISA Affiliate from a Multiemployer Plan.
"Trimark" means Trimark Financial Corporation, a
corporation organized under the laws of Ontario, Canada.
"Unused Commitment" means, for any period, the amount
by which (a) the then applicable aggregate Revolving
Committed Amount exceeds (b) the daily average sum for such
period of the outstanding aggregate principal amount of all
Revolving Loans plus the aggregate amount of LOC Obligations
outstanding.
"Voting Stock" of a corporation means all classes of
the Capital Stock of such corporation then outstanding and
normally entitled to vote in the election of directors.
"Year 2000 Compliant" shall have the meaning assigned
to such term in Section 6.27.
"Year 2000 Problem" means any risk (a) that any
computer hardware, software or other equipment used by a
Credit Party or any of its Subsidiaries (or by any
suppliers, vendors or customers that is material to the
business of such Credit Party or Subsidiary) will not
function as effectively and reliably on and after January 1,
2000 as it does prior to January 1, 2000 or (b) that any
computer applications used by a Credit Party or any of its
Subsidiaries may not be able to recognize and properly
perform date-sensitive functions after December 31, 1999, to
the extent any such risk specified in items (a) or (b) above
would have or be reasonably expected to have a Material
Adverse Effect.
1.2 Computation of Time Periods and Other Definitional
Provisions.
For purposes of computation of periods of time hereunder,
the word "from" means "from and including" and the words "to" and
"until" each mean "to but excluding." References in this
Agreement to "Articles", "Sections", "Schedules" or "Exhibits"
shall be to Articles, Sections, Schedules or Exhibits of or to
this Agreement unless otherwise specifically provided.
1.3 Accounting Terms.
Except as otherwise expressly provided herein, all
accounting terms used herein shall be interpreted, and all
financial statements and certificates and reports as to financial
matters required to be delivered to the Lenders hereunder shall
be prepared, in accordance with GAAP applied on a consistent
basis. All calculations made for the purposes of determining
compliance with this Credit Agreement shall (except as otherwise
expressly provided herein) be made by application of GAAP applied
on a basis consistent with the most recent annual or quarterly
financial statements delivered pursuant to Section 7.1 (or, prior
to the delivery of the first financial statements pursuant to
Section 7.1, consistent with the financial statements described
in Section 5.1(d)); provided, however, if (a) the Borrower shall
object to determining such compliance on such basis at the time
of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the
Administrative Agent or the Required Lenders shall so object in
writing within 60 days after delivery of such financial
statements, then such calculations shall be made on a basis
consistent with GAAP as in effect as of the date of the most
recent financial statements delivered by the Borrower to the
Lenders to which no such objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and
agree that, for purposes of all calculations made under the
financial covenants set forth in Section 7.2 (including the
definitions used therein) and also for purposes of calculating
the Leverage Ratio in connection with the definition of
"Applicable Percentage" set forth in Section 1.1, income
statement items (whether positive or negative) attributable to
any Person or property acquired in any Acquisition contemplated
by the definition of "Permitted Acquisition" set forth in Section
1.1 and any Indebtedness incurred by the Credit Parties in order
to consummate such Acquisition shall, to the extent not otherwise
included in such income statement items for the Credit Parties in
accordance with GAAP or in accordance with any defined terms set
forth in Section 1.1, be included to the extent relating to any
period applicable in such calculations occurring after the date
of such Acquisition (and notwithstanding the foregoing, during
the first four fiscal quarters following the date of the such
Acquisition, such Acquisition and any Indebtedness incurred by
the Credit Parties in order to consummate such Acquisition (A)
shall be deemed to have occurred on the first day of the four
fiscal quarter period immediately preceding the date of such
Acquisition and (B) if such Indebtedness has a floating or
formula rate, then the implied rate of interest for such
Indebtedness for the applicable period shall be determined by
utilizing the rate which is or would be in effect with respect to
such Indebtedness as at the relevant date of determination).
SECTION 2
CREDIT FACILITIES
2.1 Revolving Loans.
(a) Revolving Loan Commitment. Subject to the terms
and conditions set forth herein, each Lender severally
agrees to make revolving loans (each a "Revolving Loan" and
collectively the "Revolving Loans") to the Borrower, in
Dollars, at any time and from time to time, during the
period from and including the Effective Date to but not
including the Maturity Date (or such earlier date if the
Revolving Committed Amount has been terminated as provided
herein); provided, however, that (i) the sum of the
aggregate amount of Revolving Loans outstanding plus the
aggregate amount of LOC Obligations outstanding plus the
aggregate amount of Swingline Loans outstanding shall not
exceed the Revolving Committed Amount and (ii) with respect
to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's pro rata
share of outstanding LOC Obligations plus (other than the
Swingline Lender) such Lender's pro rata share of Swingline
Loans outstanding shall not exceed such Lender's Revolving
Loan Commitment Percentage of the Revolving Committed
Amount. Subject to the terms of this Credit Agreement
(including Section 3.3), the Borrower may borrow, repay and
reborrow Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no
later than 11:00 a.m. (i) on the date of the requested
borrowing of Revolving Loans that will be Base Rate Loans
or (ii) three Business Days prior to the date of the
requested borrowing of Revolving Loans that will be
Eurodollar Loans, the Borrower shall telephone the
Administrative Agent with the information described below as
well as submit a written Notice of Borrowing in the form of
Exhibit 2.1(b) to the Administrative Agent setting forth (A)
the amount requested, (B) whether such Revolving Loans shall
accrue interest at the Adjusted Base Rate or the Adjusted
Eurodollar Rate, (C) with respect to Revolving Loans that
will be Eurodollar Loans, the Interest Period applicable
thereto and (D) certification that the Borrower has complied
in all respects with Section 5.2. If the Borrower shall
fail to specify (x) an Interest Period in the case of a
Eurodollar Loan, then such Eurodollar Loan shall be deemed
to have an Interest Period of one month, or (y) the type of
Revolving Loan requested, then such Revolving Loan shall be
deemed to be a Base Rate Loan. All Revolving Loans made on
the Effective Date shall be Base Rate Loans unless the
Borrower delivers to the Administrative Agent at least three
Business Days prior to the Effective Date a funding
indemnity letter in form and substance reasonably
satisfactory to the Administrative Agent. Thereafter, all
or any portion of such Revolving Loans may be converted into
Eurodollar Loans in accordance with the terms of Section
2.5.
(c) Funding of Revolving Loans. Upon receipt of a
Notice of Borrowing, the Administrative Agent shall promptly
inform the Lenders as to the terms thereof. Each Lender
shall make its Revolving Loan Commitment Percentage of the
requested Revolving Loans available to the Administrative
Agent by 1:00 p.m. on the date specified in the Notice of
Borrowing by deposit, in Dollars, of immediately available
funds at the offices of the Administrative Agent at its
principal office in Charlotte, North Carolina or at such
other address as the Administrative Agent may designate in
writing. The amount of the requested Revolving Loans will
then be made available to the Borrower by the Administrative
Agent by crediting the account of the Borrower on the books
of such office of the Administrative Agent, to the extent
the amount of such Revolving Loans are made available to the
Administrative Agent.
No Lender shall be responsible for the failure or delay
by any other Lender in its obligation to make Revolving
Loans hereunder; provided, however, that the failure of any
Lender to fulfill its obligations hereunder shall not
relieve any other Lender of its obligations hereunder.
Unless the Administrative Agent shall have been notified by
any Lender prior to the date of any such Revolving Loan that
such Lender does not intend to make available to the
Administrative Agent its portion of the Revolving Loans to
be made on such date, the Administrative Agent may assume
that such Lender has made such amount available to the
Administrative Agent on the date of such Revolving Loans,
and the Administrative Agent in reliance upon such
assumption, may (in its sole discretion but without any
obligation to do so) make available to the Borrower a
corresponding amount. If such corresponding amount is not
in fact made available to the Administrative Agent, the
Administrative Agent shall be able to recover such
corresponding amount from such Lender. If such Lender does
not pay such corresponding amount forthwith upon the
Administrative Agent's demand therefor, the Administrative
Agent will promptly notify the Borrower, and the Borrower
shall immediately pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also
be entitled to recover from the Lender or the Borrower, as
the case may be, interest on such corresponding amount in
respect of each day from the date such corresponding amount
was made available by the Administrative Agent to the
Borrower to the date such corresponding amount is recovered
by the Administrative Agent at a per annum rate equal to (i)
from the Borrower at the applicable rate for such Revolving
Loan pursuant to the Notice of Borrowing and (ii) from a
Lender at the Federal Funds Rate if paid within two Business
Days of the date of drawing, and thereafter at a rate equal
to the Base Rate.
(d) Revolving Notes. The Revolving Loans made by each
Lender shall be evidenced by a duly executed promissory note
of the Borrower to such Lender in an original principal
amount equal to such Lender's Revolving Commitment
Percentage of the Revolving Committed Amount and in
substantially the form of Exhibit 2.1(d).
2.2 Letter of Credit Subfacility.
(a) Issuance. Subject to the terms and conditions
hereof and of the LOC Documents, if any, and any other terms
and conditions which the Issuing Lender may reasonably
require, the Issuing Lender shall from time to time upon
request issue (from the Effective Date to the Maturity Date
and in a form reasonably acceptable to the Issuing Lender),
in Dollars, and the LOC Participants shall participate in,
Letters of Credit for the account of a Credit Party;
provided, however, that (i) the aggregate amount of LOC
Obligations shall not at any time exceed TWENTY MILLION
DOLLARS ($20,000,000) (the "LOC Committed Amount"), (ii) the
sum of the aggregate amount of LOC Obligations outstanding
plus Revolving Loans outstanding plus Swingline Loans
outstanding shall not exceed the Revolving Committed Amount
and (iii) with respect to each individual LOC Participant,
the LOC Participant's pro rata share of outstanding
Revolving Loans plus its pro rata share of outstanding LOC
Obligations plus its (other than the Swingline Lender) pro
rata share of outstanding Swingline Loans shall not exceed
such LOC Participant's Revolving Loan Commitment Percentage
of the Revolving Committed Amount. The Issuing Lender may
require the issuance and expiry date of each Letter of
Credit to be a Business Day. Each Letter of Credit shall be
either (i) a standby letter of credit issued to support the
obligations (including pension or insurance obligations),
contingent or otherwise, of a Credit Party or any of its
Subsidiaries or (ii) a commercial letter of credit in
respect of the purchase of goods or services by a Credit
Party in the ordinary course of business. Except as
otherwise expressly agreed upon by all the LOC Participants,
no Letter of Credit shall have an original expiry date more
than one year from the date of issuance, or as extended,
shall have an expiry date extending beyond the Maturity
Date. Each Letter of Credit shall comply with the related
LOC Documents.
(b) Notice and Reports. The request for the issuance
of a Letter of Credit shall be submitted to the Issuing
Lender at least three Business Days prior to the requested
date of issuance (or such shorter period as may be
reasonably acceptable to the Issuing Lender). The Issuing
Lender will, at least quarterly and more frequently upon
request, provide to the Administrative Agent for
dissemination to the Lenders a detailed report specifying
the Letters of Credit which are then issued and outstanding
and any activity with respect thereto which may have
occurred since the date of the prior report, and including
therein, among other things, the account party, the
beneficiary, the face amount, and the expiry date as well as
any payments or expirations which may have occurred. The
Issuing Lender will further provide to the Administrative
Agent, promptly upon request, copies of the Letters of
Credit and the other LOC Documents.
(c) Participations.
(i) Each LOC Participant acknowledges and
confirms that it has a Participation Interest in the
liability of the Issuing Lender under each Existing
Letter of Credit in an amount equal to its Revolving
Loan Commitment Percentage of such Existing Letter of
Credit. The Borrower's reimbursement obligations in
respect of each Existing Letter of Credit, and each LOC
Participant's obligations in connection therewith,
shall be governed by the terms of this Credit
Agreement.
(ii) Each LOC Participant, upon issuance of a
Letter of Credit, shall be deemed to have purchased
without recourse a risk participation from the Issuing
Lender in such Letter of Credit and each LOC Document
related thereto and the rights and obligations arising
thereunder and any collateral relating thereto, in each
case in an amount equal to its Revolving Loan
Commitment Percentage of the 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 Issuing Lender
therefor and discharge when due, its Revolving Loan
Commitment Percentage of the obligations arising under
such Letter of Credit. Without limiting the scope and
nature of each LOC Participant's participation in any
Letter of Credit, to the extent that the Issuing Lender
has not been reimbursed as required hereunder or under
any such Letter of Credit, each such LOC Participant
shall pay to the Issuing Lender its Revolving Loan
Commitment Percentage of such unreimbursed drawing in
same day funds on the day of notification by the
Issuing Lender of an unreimbursed drawing pursuant to
the provisions of subsection (d) or (e) hereof. The
obligation of each LOC Participant to so reimburse the
Issuing Lender shall be absolute and unconditional and
shall not be affected by the occurrence of a Default,
an Event of Default or any other occurrence or event.
Any such reimbursement shall not relieve or otherwise
impair the obligation of the Borrower or any other
Credit Party to reimburse the Issuing Lender under any
Letter of Credit, together with interest as hereinafter
provided.
(d) Reimbursement. In the event of any drawing under
any Letter of Credit, the Issuing Lender will promptly
notify the Borrower. Unless the Borrower shall, upon
receipt of such notice by the Issuing Lender, immediately
notify the Issuing Lender of its intent to otherwise
reimburse the Issuing Lender, the Borrower shall be deemed
to have requested a Revolving Loan at the Adjusted Base Rate
in the amount of the drawing as provided in subsection (e)
hereof, the proceeds of which will be used to satisfy the
reimbursement obligations. The Borrower shall reimburse the
Issuing Lender on the day it receives notice from the
Issuing Lender of a drawing under any Letter of Credit with
the proceeds of such Revolving Loan obtained hereunder or
otherwise in same day funds as provided herein or in the LOC
Documents. If the Borrower shall fail to reimburse the
Issuing Lender as provided hereinabove, the unreimbursed
amount of such drawing shall bear interest at a per annum
rate equal to the Adjusted Base Rate plus an additional two
percent (2%). The Borrower's reimbursement obligations
hereunder shall be absolute and unconditional under all
circumstances irrespective of (but without waiver of) any
rights of set-off, counterclaim or defense to payment that
the applicable account party or the Borrower may claim or
have against the Issuing Lender, an Agent, the Lenders, the
beneficiary of the Letter of Credit drawn upon or any other
Person, including without limitation, any defense based on
any failure of the applicable account party, the Borrower or
any other Credit Party to receive consideration or the
legality, validity, regularity or unenforceability of the
Letter of Credit. The Issuing Lender will promptly notify
the LOC Participants of the amount of any unreimbursed
drawing and each LOC Participant shall promptly pay to the
Administrative Agent for the account of the Issuing Lender,
in Dollars and in immediately available funds, the amount of
such LOC Participant's Revolving Loan Commitment Percentage
of such unreimbursed drawing. Such payment shall be made on
the day such notice is received by such Lender from the
Issuing Lender if such notice is received at or before 2:00
p.m., otherwise such payment shall be made at or before
12:00 Noon on the Business Day next succeeding the day such
notice is received. If such LOC Participant does not pay
such amount to the Issuing Lender in full upon such request,
such LOC Participant shall, on demand, pay to the
Administrative Agent for the account of the Issuing Lender
interest on the unpaid amount during the period from the
date the LOC Participant received the notice regarding the
unreimbursed drawing until such LOC Participant pays such
amount to the Issuing Lender in full at a rate per annum
equal to, if paid within two Business Days of the date of
drawing, the Federal Funds Rate and thereafter at a rate
equal to the Base Rate. Each LOC Participant's obligation
to make such payment to the Issuing Lender, and the right of
the Issuing Lender to receive the same, shall be absolute
and unconditional, shall not be affected by any circumstance
whatsoever and without regard to the termination of this
Credit Agreement or the Commitments hereunder, the existence
of a Default or Event of Default or the acceleration of the
obligations hereunder and shall be made without any offset,
abatement, withholding or reduction whatsoever.
Simultaneously with the making of each such payment by a LOC
Participant to the Issuing Lender, such LOC Participant
shall, automatically and without any further action on the
part of the Issuing Lender or such LOC Participant, acquire
a participation in an amount equal to such payment
(excluding the portion of such payment constituting interest
owing to the Issuing Lender) in the related unreimbursed
drawing portion of the LOC Obligation and in the interest
thereon and in the related LOC Documents, and shall have a
claim against the Borrower and the other Credit Parties with
respect thereto.
(e) Repayment with Revolving Loans. On any day on
which the Borrower shall have requested, or been deemed to
have requested, a Revolving Loan borrowing to reimburse a
drawing under a Letter of Credit (as set forth in subsection
(d) above), the Administrative Agent shall give notice to
the applicable Lenders that a Revolving Loan has been
requested or deemed requested in connection with a drawing
under a Letter of Credit, in which case a Revolving Loan
borrowing comprised solely of Base Rate Loans (each such
borrowing, a "Mandatory Borrowing") shall be immediately
made from all applicable Lenders (without giving effect to
any termination of the Commitments pursuant to Section 9.2
or otherwise) pro rata based on each Lender's respective
Revolving Loan Commitment Percentage and the proceeds
thereof shall be paid directly to the Issuing Lender for
application to the respective LOC Obligations. Each such
Lender hereby irrevocably agrees to make such Revolving
Loans immediately upon any such request or deemed request on
account of each such Mandatory Borrowing in the amount and
in the manner specified in the preceding sentence and on the
same such date notwithstanding (i) the amount of Mandatory
Borrowing may not comply with the minimum amount for
borrowings of Revolving Loans otherwise required hereunder,
(ii) whether any conditions specified in Section 5.2 are
then satisfied, (iii) whether a Default or Event of Default
then exists, (iv) failure of any such request or deemed
request for Revolving Loans to be made by the time otherwise
required hereunder, (v) the date of such Mandatory
Borrowing, or (vi) any reduction in the Revolving Committed
Amount or any termination of the Commitments. In the event
that any Mandatory Borrowing cannot for any reason be made
on the date otherwise required above (including, without
limitation, as a result of the commencement of a proceeding
under the Bankruptcy Code with respect to the Borrower or
any other Credit Party), then each such Lender hereby agrees
that it shall forthwith fund (as of the date the Mandatory
Borrowing would otherwise have occurred, but adjusted for
any payments received from the Borrower on or after such
date and prior to such purchase) its Participation Interest
in the outstanding LOC Obligations; provided, further, that
in the event any Lender shall fail to fund its Participation
Interest on the day the Mandatory Borrowing would otherwise
have occurred, then the amount of such Lender's unfunded
Participation Interest therein shall bear interest payable
to the Issuing Lender upon demand, at the rate equal to, if
paid within two Business Days of such date, the Federal
Funds Rate, and thereafter at a rate equal to the Base Rate.
(f) Designation of Subsidiaries as Account Parties.
Notwithstanding anything to the contrary set forth in this
Credit Agreement, a Letter of Credit issued hereunder may
contain a statement to the effect that such Letter of Credit
is issued for the account of a Subsidiary of the Borrower;
provided that notwithstanding such statement, the Borrower
shall be the actual account party for all purposes of this
Credit Agreement for such Letter of Credit and such
statement shall not affect the Borrower's reimbursement
obligations hereunder with respect to such Letter of Credit.
(g) Modification and Extension. The issuance of any
supplement, modification, amendment, renewal, or extensions
to any Letter of Credit shall, for purposes hereof, be
treated in all respects the same as the issuance of a new
Letter of Credit hereunder.
(h) Uniform Customs and Practices. The Issuing Lender
may have the Letters of Credit be subject to The Uniform
Customs and Practice for Documentary Credits (the "UCP") or
the International Standby Practices 1998 (the "ISP98"), in
either case as published as of the date of issue by the
International Chamber of Commerce, in which case the UCP or
ISP98, as applicable, may be incorporated therein and deemed
in all respects to be a part thereof.
(i) Responsibility of Issuing Lender. It is expressly
understood and agreed as between the Lenders that the
obligations of the Issuing Lender hereunder to the LOC
Participants are only those expressly set forth in this
Credit Agreement and that the Issuing Lender shall be
entitled to assume that the conditions precedent set forth
in Section 5.2 have been satisfied unless it shall have
acquired actual knowledge that any such condition precedent
has not been satisfied; provided, however, that nothing set
forth in this Section 2.2 shall be deemed to prejudice the
right of any LOC Participant to recover from the Issuing
Lender any amounts made available by such LOC Participant to
the Issuing Lender pursuant to this Section 2.2 in the event
that it is determined by a court of competent jurisdiction
that the payment with respect to a Letter of Credit
constituted gross negligence or willful misconduct on the
part of the Issuing Lender.
(j) Conflict with LOC Documents. In the event of any
conflict between this Credit Agreement and any LOC Document,
this Credit Agreement shall govern.
(k) Indemnification of Issuing Lender.
(i) In addition to its other obligations under
this Credit Agreement, the Credit Parties hereby agree
to protect, indemnify, pay and save the Issuing Lender
harmless from and against any and all claims, demands,
liabilities, damages, losses, costs, charges and
expenses (including reasonable attorneys' fees) that
the Issuing Lender may incur or be subject to as a
consequence, direct or indirect, of (A) the issuance of
any Letter of Credit or (B) the failure of the Issuing
Lender to honor a drawing under a Letter of Credit as a
result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or
omissions, herein called "Government Acts").
(ii) As between the Credit Parties and the Issuing
Lender, the Credit Parties shall assume all risks of
the acts, omissions or misuse of any Letter of Credit
by the beneficiary thereof. The Issuing Lender shall
not be responsible for: (A) the form, validity,
sufficiency, accuracy, genuineness or legal effect of
any document submitted by any party in connection with
the application for and issuance of any Letter of
Credit, even if it should in fact prove to be in any or
all respects invalid, insufficient, inaccurate,
fraudulent or forged; (B) the validity or sufficiency
of any instrument transferring or assigning or
purporting to transfer or assign any Letter of Credit
or the rights or benefits thereunder or proceeds
thereof, in whole or in part, that may prove to be
invalid or ineffective for any reason; (C) failure of
the beneficiary of a Letter of Credit to comply fully
with conditions required in order to draw upon a Letter
of Credit; (D) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by
mail, cable, telegraph, telex or otherwise, whether or
not they be in cipher; (E) errors in interpretation of
technical terms; (F) any loss or delay in the
transmission or otherwise of any document required in
order to make a drawing under a Letter of Credit or of
the proceeds thereof; and (G) any consequences arising
from causes beyond the control of the Issuing Lender,
including, without limitation, any Government Acts.
None of the above shall affect, impair, or prevent the
vesting of the Issuing Lender's rights or powers
hereunder.
(iii) In furtherance and extension and not in
limitation of the specific provisions hereinabove set
forth, any action taken or omitted by the Issuing
Lender, under or in connection with any Letter of
Credit or the related certificates, if taken or omitted
in good faith, shall not put the Issuing Lender under
any resulting liability to the Borrower or any other
Credit Party. It is the intention of the parties that
this Credit Agreement shall be construed and applied to
protect and indemnify the Issuing Lender against any
and all risks involved in the issuance of the Letters
of Credit, all of which risks are hereby assumed by the
Credit Parties, including, without limitation, any and
all risks of the acts or omissions, whether rightful or
wrongful, of any present or future Government Acts.
The Issuing Lender shall not, in any way, be liable for
any failure by the Issuing Lender or anyone else to pay
any drawing under any Letter of Credit as a result of
any Government Acts or any other cause beyond the
control of the Issuing Lender.
(iv) Nothing in this subsection (k) is intended to
limit the reimbursement obligation of the Borrower
contained in this Section 2.2. The obligations of the
Borrower under this subsection (k) shall survive the
termination of this Credit Agreement. No act or
omission of any current or prior beneficiary of a
Letter of Credit shall in any way affect or impair the
rights of the Issuing Lender to enforce any right,
power or benefit under this Credit Agreement.
(v) Notwithstanding anything to the contrary
contained in this subsection (k), the Borrower shall
have no obligation to indemnify the Issuing Lender in
respect of any liability incurred by the Issuing Lender
arising solely out of the gross negligence or willful
misconduct of the Issuing Lender, as determined by a
court of competent jurisdiction. Nothing in this
Credit Agreement shall relieve the Issuing Lender of
any liability to the Borrower in respect of any action
taken by the Issuing Lender which action constitutes
gross negligence or willful misconduct of the Issuing
Lender, as determined by a court of competent
jurisdiction.
2.3 Swingline Loans Subfacility.
(a) Swingline Loans. The Swingline Lender hereby
agrees, on the terms and subject to the conditions set forth
herein and in the other Credit Documents, to make loans to
the Borrower in Dollars at any time and from time to time
during the period from and including the Effective Date to
but not including the Maturity Date (each such loan, a
"Swingline Loan" and collectively, the "Swingline Loans");
provided that (i) the aggregate principal amount of the
Swingline Loans outstanding at any one time shall not exceed
the Swingline Committed Amount and (ii) the aggregate amount
of Swingline Loans outstanding plus the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of LOC
Obligations outstanding shall not exceed the Revolving
Committed Amount. Prior to the Maturity Date, Swingline
Loans may be repaid and reborrowed by the Borrower in
accordance with the provisions hereof.
(b) Method of Borrowing and Funding Swingline Loans.
By no later than (i) 11:00 a.m. two Business Days prior to
the date of the requested borrowing of Swingline Loans that
will be Eurodollar Loans or (ii) 1:00 p.m., on the date of
the requested borrowing of Swingline Loans that will be Base
Rate Loans or CD Rate Loans, the Borrower shall telephone
the Swingline Lender as well as submit a Swingline Loan
Request to the Swingline Lender in the form of Exhibit
2.3(b) setting forth (A) the amount of the requested
Swingline Loan, (B) the date of the requested Swingline
Loan, (C) whether such Swingline Loan shall accrue interest
at the Adjusted Base Rate, the Adjusted CD Rate or the
Eurodollar Rate agreed to by the Borrower and the Swingline
Lender, (D) with respect to Swingline Loans that will be
Eurodollar Loans, the Interest Period applicable thereto and
(E) certification that the Borrower has in all respects
complied with Section 5.2. If the Borrower shall fail to
specify (x) an Interest Period in the case of a Swingline
Loan that will be a Eurodollar Loan, then such Swingline
Loan shall be deemed to have an Interest Period of seven
days, or (y) the type of Swingline Loan requested, then such
Swingline Loan shall be deemed to be a Base Rate Loan. The
Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Borrower by
3:00 p.m. on the Business Day of the requested borrowing.
Swingline Loans that are Eurodollar Loans shall convert to a
Base Rate Loan on the last day of the applicable Interest
Period unless repaid on such day.
(c) Repayment and Participations of Swingline Loans.
The Borrower agrees to repay all Swingline Loans that are
Base Rate Loans and all Swingline Loans that are CD Rate
Loans within one Business Day of demand therefor by the
Swingline Lender. The Borrower agrees to repay all
Swingline Loans that are Eurodollar Loans on the last day of
the Interest Period applicable thereto. Each repayment of a
Swingline Loan may be accomplished by requesting Revolving
Loans which request is not subject to the conditions set
forth in Section 5.2. In the event that the Borrower shall
fail to timely repay any Swingline Loan, and in any event
upon (i) a request by the Swingline Lender, (ii) the
occurrence of an Event of Default described in Section
9.1(f) or (iii) the acceleration of any Loan or termination
of any Commitment pursuant to Section 9.2, each other Lender
shall irrevocably and unconditionally purchase from the
Swingline Lender, without recourse or warranty, an undivided
interest and participation in such Swingline Loan in an
amount equal to such other Lender's Revolving Loan
Commitment Percentage thereof, by directly purchasing a
participation in such Swingline Loan in such amount
(regardless of whether the conditions precedent thereto set
forth in Section 5.2 are then satisfied, whether or not the
Borrower has submitted a Notice of Borrowing and whether or
not the Commitments are then in effect, any Event of Default
exists or all the Loans have been accelerated) and paying
the proceeds thereof to the Swingline Lender at the address
provided in Section 11.1, or at such other address as the
Swingline Lender may designate, in Dollars and in
immediately available funds. If such amount is not in fact
made available to the Swingline Lender by any Lender, the
Swingline Lender shall be entitled to recover such amount on
demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof, at the
Federal Funds Rate. If such Lender does not pay such amount
forthwith upon the Swingline Lender's demand therefor, and
until such time as such Lender makes the required payment,
the Swingline Lender shall be deemed to continue to have
outstanding Swingline Loans in the amount of such unpaid
participation obligation for all purposes of the Credit
Documents other than those provisions requiring the other
Lenders to purchase a participation therein. Further, such
Lender shall be deemed to have assigned any and all payments
made of principal and interest on its Loans, and any other
amounts due to it hereunder to the Swingline Lender to fund
Swingline Loans in the amount of the participation in
Swingline Loans that such Lender failed to purchase pursuant
to this Section 2.3(c) until such amount has been purchased
(as a result of such assignment or otherwise).
(d) Swingline Note. The Swingline Loans made by the
Swingline Lender shall be evidenced by a duly executed
promissory note of the Borrower to the Swingline Lender in
the face amount of the Swingline Committed Amount and in
substantially the form of Exhibit 2.3(d).
2.4 Continuations and Conversions.
The Borrower shall have the option, on any Business Day, to
continue existing Revolving Loans that are Eurodollar Loans for a
subsequent Interest Period, to convert Revolving Loans that are
Base Rate Loans into Eurodollar Loans or to convert Revolving
Loans that are Eurodollar Loans into Base Rate Loans; provided,
however, that (a) each such continuation or conversion must be
requested by the Borrower by telephone to the Administrative
Agent followed by prompt submission of a written Notice of
Continuation/Conversion, in the form of Exhibit 2.4, in
compliance with the terms set forth below, (b) except as provided
in Section 3.13, Eurodollar Loans may only be continued or
converted into Base Rate Loans on the last day of the Interest
Period applicable thereto, (c) Eurodollar Loans may not be
continued nor may Base Rate Loans be converted into Eurodollar
Loans during the existence and continuation of a Default or an
Event of Default, (d) any request to continue a Eurodollar Loan
that fails to comply with the terms hereof or any failure to
request a continuation of a Eurodollar Loan at the end of an
Interest Period shall constitute a conversion to a Base Rate Loan
on the last day of the applicable Interest Period and (e) any
request for continuation or conversion of a Eurodollar Loan which
shall fail to specify an Interest Period shall be deemed to be a
request for an Interest Period of one month. Each continuation
or conversion must be requested by the Borrower no later than
11:00 a.m. (i) on the date for a requested conversion of a
Eurodollar Loan to a Base Rate Loan or (ii) three Business Days
prior to the date for a requested continuation of a Eurodollar
Loan or conversion of a Base Rate Loan to a Eurodollar Loan, in
each case by telephone to the Administrative Agent followed by a
written Notice of Continuation/Conversion promptly submitted to
the Administrative Agent which shall set forth (A) whether the
Borrower intends to continue or convert such Loans and (B) if the
request is to continue a Eurodollar Loan or convert a Base Rate
Loan to a Eurodollar Loan, the Interest Period applicable
thereto.
2.5 Minimum Amounts.
Each request for a borrowing, conversion or continuation
shall be subject to the requirements that (a) each Eurodollar
Loan that is a Revolving Loan and each Base Rate Loan that is a
Revolving Loan shall be in a minimum amount of $3,000,000 and in
integral multiples of $500,000 in excess thereof or the remaining
amount available under the Revolving Committed Amount, if less
(b) each Swingline Loan shall be in a minimum amount of $250,000
and in integral multiples of $250,000 in excess thereof (or the
remaining amount of the Swingline Committed Amount, if less) and
(c) no more than ten (10) Eurodollar Loans that are Revolving
Loans shall be outstanding hereunder at any one time. For the
purposes of this Section, all Revolving Loans that are Eurodollar
Loans with the same Interest Periods that begin and end on the
same date shall be considered as one Eurodollar Loan, but
Eurodollar Loans with different Interest Periods, even if they
begin on the same date, shall be considered as separate
Eurodollar Loans.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1 Interest.
(a) Interest. Subject to the provisions of Section
3.1(b):
(i) Base Rate Loans. During such periods as
the Revolving Loans shall be comprised in whole or in
part of Base Rate Loans, such Base Rate Loans shall
bear interest at a per annum rate equal to the Adjusted
Base Rate.
(ii) Eurodollar Loans. During such periods as
the Revolving Loans shall be comprised in whole or in
part of Eurodollar Loans, such Eurodollar Loans shall
bear interest at a per annum rate equal to the Adjusted
Eurodollar Rate.
(iii) Swingline Loans. Each Swingline Loan
shall bear interest at either the Adjusted Base Rate,
the Adjusted CD Rate or the Eurodollar Rate agreed to
by the Borrower and the Swingline Lender; provided,
however, that if a Swingline Loan bears interest at the
Eurodollar Rate or the Adjusted CD Rate, such
Eurodollar Rate or Adjusted CD Rate shall not be less
than the interest rate which would be obtainable with
respect to a Revolving Loan borrowing at such time.
(b) Default Rate of Interest. Upon the occurrence,
and during the continuance, of an Event of Default, the
principal of and, to the extent permitted by law, interest
on the Loans and any other amounts owing (but not timely
paid) hereunder or under the other Credit Documents
(including without limitation fees and expenses) shall bear
interest, payable on demand, at a per annum rate equal to 2%
plus the rate which would otherwise be applicable (or if no
rate is applicable, then the Adjusted Base Rate plus two
percent (2%) per annum).
(c) Interest Payments. Interest on Loans shall be due
and payable in arrears on each Interest Payment Date. If an
Interest Payment Date falls on a date which is not a
Business Day, such Interest Payment Date shall be deemed to
be the next succeeding Business Day, except that in the case
of Eurodollar Loans where the next succeeding Business Day
falls in the next succeeding calendar month, then on the
next preceding Business Day.
3.2 Place and Manner of Payments.
All payments of principal, interest, fees, expenses and
other amounts to be made by a Credit Party under this Credit
Agreement shall be received not later than 2:00 p.m. on the date
when due, in Dollars and in immediately available funds, by the
Administrative Agent at its offices in Charlotte, North Carolina.
Payments received after such time shall be deemed to have been
received on the next Business Day. The Borrower shall, at the
time it makes any payment under this Credit Agreement, specify to
the Administrative Agent the Loans, Letters of Credit, fees or
other amounts payable by the Borrower hereunder to which such
payment is to be applied (and in the event that it fails to
specify, or if such application would be inconsistent with the
terms hereof, the Administrative Agent shall, subject to Section
3.8, distribute such payment to the Lenders in such manner as the
Administrative Agent may reasonably deem appropriate). The
Administrative Agent will distribute such payments to the
applicable Lenders on the same Business Day if any such payment
is received prior to 2:00 p.m.; otherwise the Administrative
Agent will distribute such payment to the applicable Lenders on
the next succeeding Business Day. Whenever any payment hereunder
shall be stated to be due on a day which is not a Business Day,
the due date thereof shall be extended to the next succeeding
Business Day (subject to accrual of interest and fees for the
period of such extension), except that in the case of Eurodollar
Loans, if the extension would cause the payment to be made in the
next following calendar month, then such payment shall instead be
made on the next preceding Business Day.
3.3 Prepayments.
(a) Voluntary Prepayments. The Borrower shall have
the right to prepay Loans in whole or in part from time to
time without premium or penalty; provided, however, that (i)
Eurodollar Loans may only be prepaid on three Business Days'
prior written notice to the Administrative Agent and (ii)
each such partial prepayment of Loans shall be in the
minimum principal amount of $3,000,000 and integral
multiples of $500,000 in excess thereof. All prepayments
under this Section shall be subject to Section 3.15, shall
be applied to the Loans and LOC Obligations as the Borrower
may elect and shall be accompanied by interest on the
principal amount prepaid through the date of prepayment;
provided that if the Borrower fails to specify how a
prepayment should be applied, then such prepayment shall be
applied first to Revolving Loans (first to Base Rate Loans
and then to Eurodollar Loans in direct order of Interest
Period maturities) and then to Swingline Loans.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any
time the sum of the aggregate amount of Revolving Loans
outstanding plus LOC Obligations outstanding plus
Swingline Loans outstanding exceeds the Revolving
Committed Amount, the Borrower shall immediately make a
principal payment to the Administrative Agent in the
manner and in an amount such that the sum of the
aggregate amount of Revolving Loans outstanding plus
LOC Obligations outstanding plus Swingline Loans
outstanding is less than or equal to the Revolving
Committed Amount (to be applied as set forth in Section
3.3(b)(ii) below).
(ii) Prepayments on Senior Notes.
Contemporaneously with any prepayment of the Senior
Notes pursuant to Section 8.3 of the Note Purchase
Agreements, the Borrower shall make a principal payment
to the Administrative Agent in an amount necessary to
prepay the Loans on a pro rata basis according to the
aggregate unpaid principal amount of the Senior Notes
and the aggregate unpaid principal amount of the Loans.
(iii) Application of Prepayments. All amounts
required to be paid pursuant to this Section 3.3(b)
shall be applied first to Revolving Loans, second to
Swingline Loans and third to a cash collateral account
in respect of LOC Obligations. Within the foregoing
parameters, prepayments shall be applied first to Base
Rate Loans and then to Eurodollar Loans in direct order
of Interest Period maturities. All prepayments
hereunder shall be subject to Section 3.15 and shall be
accompanied by interest on the principal amount prepaid
through the date of prepayment.
3.4 Termination and Reduction of Revolving Committed
Amount.
(a) Voluntary Reduction. The Borrower may from time
to time permanently reduce or terminate (without premium or
penalty) the Revolving Committed Amount in whole or in part
(in minimum aggregate amounts of $5,000,000 or in integral
multiples of $1,000,000 in excess thereof (or, if less, the
full remaining amount of the then applicable Revolving
Committed Amount)) upon three Business Days' prior written
notice to the Administrative Agent; provided, that, no such
termination or reduction shall be made which would cause the
sum of the aggregate outstanding principal amount of the
Revolving Loans plus the aggregate amount of outstanding LOC
Obligations plus the aggregate outstanding principal amount
of Swingline Loans to exceed the Revolving Committed Amount,
unless, concurrently with such termination or reduction, the
Loans are repaid to the extent necessary to eliminate such
excess. Any reduction in (or termination of) the Revolving
Committed Amount shall be permanent and may not be
reinstated. The Administrative Agent shall promptly notify
each affected Lender of receipt by the Administrative Agent
of any notice from the Borrower pursuant to this Section
3.4(a).
(b) Mandatory Reduction.
(i) Asset Dispositions. To the extent the asset
dispositions permitted by Section 8.5(d) of the Credit
Agreement exceed $40,000,000 in the aggregate during
the term of this Credit Agreement, the Revolving
Committed Amount shall be immediately and permanently
reduced by the amount by which such permitted asset
dispositions exceed $40,000,000 in the aggregate during
the term of this Credit Agreement.
(ii) Sale Leasebacks. To the extent the sale
leaseback transactions permitted hereunder exceed
$5,000,000 in the aggregate during any fiscal year, the
Revolving Committed Amount shall be immediately and
permanently reduced by the amount by which such sale
leaseback transactions exceed $5,000,000 in the
aggregate during any fiscal year.
(iii) Prepayments on Senior Notes.
Immediately upon the occurrence of any voluntary or
optional prepayment of the Senior Notes pursuant to
Section 8.2 of the Senior Note Purchase Agreements, the
Revolving Committed Amount shall be permanently reduced
on a pro rata basis according to the aggregate unpaid
principal amount of the Senior Notes and the amount of
the Revolving Committed Amount on the date of such
prepayment.
(iv) Notification. The Administrative Agent shall
promptly notify the Lenders of any reduction of the
Revolving Committed Amount pursuant to this Section
3.4(b).
3.5 Fees.
(a) Unused Fees. In consideration of the Revolving
Committed Amount being made available by the Lenders
hereunder, the Borrower agrees to pay to the Administrative
Agent, for the pro rata benefit of each applicable Lender
(based on each Lender's Revolving Loan Commitment Percentage
of the Revolving Committed Amount), a per annum fee equal to
the Applicable Percentage for Unused Fees multiplied by the
Unused Commitment (the "Unused Fees"). The Unused Fees
shall commence to accrue on the Effective Date and shall be
due and payable in arrears on the last Business Day of each
fiscal quarter of the Borrower (as well as on the Maturity
Date and on any date that the Revolving Committed Amount is
reduced) for the fiscal quarter then ending (or portion
thereof), beginning with the first of such dates to occur
after the Effective Date. For purposes of computation of
the Unused Fees, the Swingline Loans shall not be counted
toward or considered usage of the Revolving Committed
Amount.
(b) Letter of Credit Fees. In consideration of the
issuance of Letters of Credit hereunder, the Borrower agrees
to pay to the Issuing Lender for the pro rata benefit of the
applicable Lenders (based on each Lender's Revolving Loan
Commitment Percentage of the Revolving Committed Amount), a
per annum fee (the "Letter of Credit Fees") equal to the
Applicable Percentage for the Letter of Credit Fees on the
average daily maximum amount available to be drawn under
each such Letter of Credit from the date of issuance to the
date of expiration. The Letter of Credit Fees shall
commence to accrue on the Effective Date and shall be due
and payable in arrears on the last Business Day of each
fiscal quarter of the Borrower (as well as on the Maturity
Date) for the fiscal quarter then ending (or portion
thereof), beginning with the first of such dates to occur
after the Effective Date.
(c) Issuing Lender Fees. In addition to the Letter of
Credit Fees payable pursuant to subsection (b) above, the
Borrower shall pay to the Issuing Lender for its own
account, without sharing by the other Lenders, (i) a letter
of credit fronting fee equal to 0.125% of the face amount of
each Letter of Credit, such fee to be due and payable in
arrears on the last Business Day of each fiscal quarter of
the Borrower (as well as on the Maturity Date) for the
fiscal quarter then ending and for the Letters of Credit
issued during such fiscal quarter and (ii) the customary
charges from time to time to the Issuing Lender for its
services in connection with the issuance, amendment,
payment, transfer, administration, cancellation and
conversion of, and drawings under, Letters of Credit, and
(collectively, the "Issuing Lender Fees").
(d) Administrative Fees. The Borrower agrees to pay
to the Administrative Agent, for its own account, an annual
fee in accordance with the terms of the Administrative Agent
Fee Letter.
3.6 Payment in full at Maturity.
On the Maturity Date, the entire outstanding principal
balance of all Revolving Loans, all Swingline Loans and all LOC
Obligations, together with accrued but unpaid interest and all
other sums owing with respect thereto, shall be due and payable
in full, unless accelerated sooner pursuant to Section 9.2.
3.7 Computations of Interest and Fees.
(a) Except for Base Rate Loans, in which case interest
shall be computed on the basis of a 365 or 366 day year as
the case may be, all computations of interest and fees
hereunder shall be made on the basis of the actual number of
days elapsed over a year of 360 days. Interest shall accrue
from and include the date of borrowing (or continuation or
conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit
Parties to conform to and contract in strict compliance with
applicable usury law from time to time in effect. All
agreements between the Lenders and the Borrower are hereby
limited by the provisions of this paragraph which shall
override and control all such agreements, whether now
existing or hereafter arising and whether written or oral.
In no way, nor in any event or contingency (including but
not limited to prepayment or acceleration of the maturity of
any obligation), shall the interest taken, reserved,
contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum
nonusurious amount permissible under applicable law. If,
from any possible construction of any of the Credit
Documents or any other document, interest would otherwise be
payable in excess of the maximum nonusurious amount, any
such construction shall be subject to the provisions of this
paragraph and such documents shall be automatically reduced
to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or
new document. If any Lender shall ever receive anything of
value which is characterized as interest on the Loans under
applicable law and which would, apart from this provision,
be in excess of the maximum lawful amount, an amount equal
to the amount which would have been excessive interest
shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment
of interest, or refunded to the Borrower or the other payor
thereof if and to the extent such amount which would have
been excessive exceeds such unpaid principal amount of the
Loans. The right to demand payment of the Loans or any
other indebtedness evidenced by any of the Credit Documents
does not include the right to accelerate the payment of any
interest which has not otherwise accrued on the date of such
demand, and the Lenders do not intend to charge or receive
any unearned interest in the event of such demand. All
interest paid or agreed to be paid to the Lenders with
respect to the Loans shall, to the extent permitted by
applicable law, be amortized, prorated, allocated, and
spread throughout the full stated term (including any
renewal or extension) of the Loans so that the amount of
interest on account of such indebtedness does not exceed the
maximum nonusurious amount permitted by applicable law.
3.8 Pro Rata Treatment.
Except to the extent otherwise provided herein:
(a) Loans. Each Revolving Loan borrowing (including,
without limitation, each Mandatory Borrowing), each payment
or prepayment of principal of any Loan, each payment of fees
(other than the Issuing Lender Fees retained by the Issuing
Lender for its own account and the Administrative Fees
retained by the Administrative Agent for its own account),
each reduction of the Revolving Committed Amount, and each
conversion or continuation of any Loan, shall (except as
otherwise provided in Section 3.12) be allocated pro rata
among the relevant Lenders in accordance with the respective
Revolving Loan Commitment Percentages of such Lenders (or,
if the Commitments of such Lenders have expired or been
terminated, in accordance with the respective principal
amounts of the outstanding Loans and Participation Interests
of such Lenders); provided that, if any Lender shall have
failed to pay its applicable pro rata share of any Loan,
then any amount to which such Lender would otherwise be
entitled pursuant to this subsection (a) shall instead be
payable to the Administrative Agent until the share of such
Loan not funded by such Lender has been repaid; provided
further, that in the event any amount paid to any Lender
pursuant to this subsection (a) is rescinded or must
otherwise be returned by the Administrative Agent, each
Lender shall, upon the request of the Administrative Agent,
repay to the Administrative Agent the amount so paid to such
Lender, with interest for the period commencing on the date
such payment is returned by the Administrative Agent until
the date the Administrative Agent receives such repayment at
a rate per annum equal to, during the period to but
excluding the date two Business Days after such request, the
Federal Funds Rate, and thereafter, the Adjusted Base Rate
plus two percent (2%) per annum; and
(b) Letters of Credit. Each payment of unreimbursed
drawings in respect of LOC Obligations shall be allocated to
each LOC Participant pro rata in accordance with its
Revolving Loan Commitment Percentage; provided that, if any
LOC Participant shall have failed to pay its applicable pro
rata share of any drawing under any Letter of Credit, then
any amount to which such LOC Participant would otherwise be
entitled pursuant to this subsection (b) shall instead be
payable to the Issuing Lender until the share of such
unreimbursed drawing not funded by such Lender has been
repaid; provided further, that in the event any amount paid
to any LOC Participant pursuant to this subsection (b) is
rescinded or must otherwise be returned by the Issuing
Lender, each LOC Participant shall, upon the request of the
Issuing Lender, repay to the Administrative Agent for the
account of the Issuing Lender the amount so paid to such LOC
Participant, with interest for the period commencing on the
date such payment is returned by the Issuing Lender until
the date the Issuing Lender receives such repayment at a
rate per annum equal to, during the period to but excluding
the date two Business Days after such request, the Federal
Funds Rate, and thereafter, the Adjusted Base Rate plus two
percent (2%) per annum.
3.9 Sharing of Payments.
The Lenders agree among themselves that, except to the
extent otherwise provided herein, in the event that any Lender
shall obtain payment in respect of any Loan, unreimbursed drawing
with respect to any LOC Obligations or any other obligation owing
to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant
to a secured claim under Section 506 of the Bankruptcy Code or
other security or interest arising from, or in lieu of, such
secured claim, received by such Lender under any applicable
bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment
as provided for in this Credit Agreement, such Lender shall
promptly pay in cash or purchase from the other Lenders a
participation in such Loans, LOC Obligations, and other
obligations in such amounts, and make such other adjustments from
time to time, as shall be equitable to the end that all Lenders
share such payment in accordance with their respective ratable
shares as provided for in this Credit Agreement. The Lenders
further agree among themselves that if payment to a Lender
obtained by such Lender through the exercise of a right of
setoff, banker's lien, counterclaim or other event as aforesaid
shall be rescinded or must otherwise be restored, each Lender
which shall have shared the benefit of such payment shall, by
payment in cash or a repurchase of a participation theretofore
sold, return its share of that benefit (together with its share
of any accrued interest payable with respect thereto) to each
Lender whose payment shall have been rescinded or otherwise
restored. The Credit Parties agree that any Lender so purchasing
such a participation may, to the fullest extent permitted by law,
exercise all rights of payment, including setoff, banker's lien
or counterclaim, with respect to such participation as fully as
if such Lender were a holder of such Loan, LOC Obligation or
other obligation in the amount of such participation. Except as
otherwise expressly provided in this Credit Agreement, if any
Lender shall fail to remit to the any Agent or any other Lender
an amount payable by such Lender to such Agent or such other
Lender pursuant to this Credit Agreement on the date when such
amount is due, such payments shall be made together with interest
thereon for each date from the date such amount is due until the
date such amount is paid to such Agent or such other Lender, if
paid within two Business Days of the date when such amount is
due, at a rate per annum equal to the Federal Funds Rate and
thereafter at a rate per annum equal to the Base Rate. If under
any applicable bankruptcy, insolvency or other similar law, any
Lender receives a secured claim in lieu of a setoff to which this
Section 3.9 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim
in a manner consistent with the rights of the Lenders under this
Section 3.9 to share in the benefits of any recovery on such
secured claim.
3.10 Capital Adequacy.
(a) If, after the date hereof, any Lender has
determined that the adoption or the becoming effective of,
or any change in, or any change by any Governmental
Authority, central bank or comparable agency charged with
the interpretation or administration thereof in the
interpretation or administration of, any applicable law,
rule or regulation regarding capital adequacy, or compliance
by such Lender, or its parent corporation, with any request
or directive regarding capital adequacy (whether or not
having the force of law) of any such authority, central bank
or comparable agency, has or would have the effect of
reducing the rate of return on such Lender's (or parent
corporation's) capital or assets as a consequence of its
commitments or obligations hereunder to a level below that
which such Lender, or its parent corporation, could have
achieved but for such adoption, effectiveness, change or
compliance (taking into consideration such Lender's (or
parent corporation's) policies with respect to capital
adequacy), then, upon written notice from such Lender to the
Borrower (together with documentation supporting such claim;
provided that failure to provide such documentation shall
not impair a Lender's claim hereunder), the Borrower shall
be obligated to pay to such Lender such additional amount or
amounts as will compensate such Lender on an after-tax basis
(after taking into account applicable deductions and credits
in respect of the amount indemnified) for such reduction.
Each determination by any such Lender of amounts owing under
this Section shall, absent manifest error, be conclusive and
binding on the parties hereto. This covenant shall survive
the termination of this Credit Agreement and the payment of
the Loans and all other amounts payable hereunder.
(b) Each Lender shall promptly notify the Borrower and
the Administrative Agent of any event of which it has
knowledge, occurring after the Closing Date, which will
entitle such Lender to compensation pursuant to this Section
and will designate a different lending office if such
designation will avoid the need for, or reduce the amount
of, such compensation and will not, in the reasonable
judgment of such Lender, be otherwise disadvantageous to it.
Any Lender claiming compensation under this Section shall
furnish to the Borrower and the Administrative Agent a
statement setting forth the additional amount or amounts to
be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such
Lender may use any reasonable averaging and attribution
methods.
3.11 Inability To Determine Interest Rate.
If prior to the first day of any Interest Period, the
Administrative Agent shall have determined in good faith (which
determination shall be conclusive and binding upon the Borrower)
that, by reason of circumstances affecting the relevant market,
adequate and reasonable means do not exist for ascertaining the
Eurodollar Rate for such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the
Borrower and the Lenders as soon as practicable thereafter, and
will also give prompt written notice to the Borrower when such
conditions no longer exist. If such notice is given (a) any
Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (b) any Loans
that were to have been converted on the first day of such
Interest Period to or continued as Eurodollar Loans shall be
converted to or continued as Base Rate Loans and (c) any
outstanding Eurodollar Loans shall be converted, on the first day
of such Interest Period, to Base Rate Loans. Until such notice
is withdrawn by the Administrative Agent, no further Eurodollar
Loans shall be made or continued as such, nor shall the Borrower
have the right to convert Base Rate Loans to Eurodollar Loans.
3.12 Illegality.
Notwithstanding any other provision herein, if the adoption
of or any change in any Requirement of Law or in the
interpretation or application thereof occurring after the Closing
Date shall make it unlawful for any Lender to make or maintain
Eurodollar Loans as contemplated by this Credit Agreement, (a)
such Lender shall promptly give written notice of such
circumstances to the Borrower and the Administrative Agent (which
notice shall be withdrawn whenever such circumstances no longer
exist), (b) the commitment of such Lender hereunder to make
Eurodollar Loans, continue Eurodollar Loans as such and convert a
Base Rate Loan to Eurodollar Loans shall forthwith be canceled
and, until such time as it shall no longer be unlawful for such
Lender to make or maintain Eurodollar Loans, such Lender shall
then have a commitment only to make a Base Rate Loan when a
Eurodollar Loan is requested and (c) such Lender's Loans then
outstanding as Eurodollar Loans, if any, shall be converted
automatically to Base Rate Loans on the respective last days of
the then current Interest Periods with respect to such Loans or
within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the
last day of the then current Interest Period with respect
thereto, the Borrower shall pay to such Lender such amounts, if
any, as may be required pursuant to Section 3.15.
3.13 Requirements of Law.
If the adoption of or any change in any Requirement of Law
or in the interpretation or application thereof applicable to any
Lender, or compliance by any Lender with any request or directive
(whether or not having the force of law) from any central bank or
other Governmental Authority, in each case made subsequent to the
Closing Date (or, if later, the date on which such Lender becomes
a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any
Eurodollar Loans made by it or its obligation to make
Eurodollar Loans, or change the basis of taxation of
payments to such Lender in respect thereof (except for Non-
Excluded Taxes covered by Section 3.14 (including Non-
Excluded Taxes imposed solely by reason of any failure of
such Lender to comply with its obligations under Section
3.14(b)) and changes in taxes measured by or imposed upon
the overall net income, or franchise taxes, branch taxes,
taxes on doing business or taxes on capital or net worth
(imposed in lieu of such net income tax), of such Lender or
its applicable lending office, branch, or any affiliate
thereof);
(b) shall impose, modify or hold applicable any
reserve, special deposit, compulsory loan or similar
requirement against assets held by, deposits or other
liabilities in or for the account of, advances, loans or
other extensions of credit by, or any other acquisition of
funds by, any office of such Lender which is not otherwise
included in the determination of the Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition
(excluding any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to
such Lender, by an amount which such Lender deems to be material,
of making, converting into, continuing or maintaining Eurodollar
Loans or issuing or participating in Letters of Credit or to
reduce any amount receivable hereunder in respect thereof, then,
in any such case, upon notice to the Borrower from such Lender,
through the Administrative Agent, in accordance herewith, the
Borrower shall be obligated to promptly pay such Lender, upon its
demand, any additional amounts necessary to compensate such
Lender on an after-tax basis (after taking into account
applicable deductions and credits in respect of the amount
indemnified) for such increased cost or reduced amount
receivable, provided that, in any such case, the Borrower may
elect to convert the Eurodollar Loans made by such Lender
hereunder to Base Rate Loans by giving the Administrative Agent
at least one Business Day's notice of such election, in which
case the Borrower shall promptly pay to such Lender, upon demand,
without duplication, such amounts, if any, as may be required
pursuant to Section 3.15. If any Lender becomes entitled to
claim any additional amounts pursuant to this Section 3.13, it
shall provide prompt notice thereof to the Borrower, through the
Administrative Agent, certifying (x) that one of the events
described in this Section 3.13 has occurred and describing in
reasonable detail the nature of such event, (y) as to the
increased cost or reduced amount resulting from such event and
(z) as to the additional amount demanded by such Lender and a
reasonably detailed explanation of the calculation thereof. Such
a certificate as to any additional amounts payable pursuant to
this Section 3.13 submitted by such Lender, through the
Administrative Agent, to the Borrower shall be conclusive and
binding on the parties hereto in the absence of manifest error.
This covenant shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts
payable hereunder.
3.14 Taxes.
(a) Except as provided below in this Section 3.14, all
payments made by a Credit Party under this Credit Agreement
and any Notes shall be made free and clear of, and without
deduction or withholding for or on account of, any present
or future income, stamp or other taxes, levies, imposts,
duties, charges, fees, deductions or withholdings, now or
hereafter imposed, levied, collected, withheld or assessed
by any court, or governmental body, agency or other
official, excluding taxes measured by or imposed upon the
net income of any Lender or its applicable lending office,
or any branch or affiliate thereof, and all franchise taxes,
branch taxes, taxes on doing business or taxes on the
capital or net worth of any Lender or its applicable lending
office, or any branch or affiliate thereof, in each case
imposed in lieu of net income taxes: (i) by the jurisdiction
under the laws of which such Lender, applicable lending
office, branch or affiliate is organized or is located, or
in which its principal executive office is located, or any
nation within which such jurisdiction is located or any
political subdivision thereof; or (ii) by reason of any
connection between the jurisdiction imposing such tax and
such Lender, applicable lending office, branch or affiliate
other than a connection arising solely from such Lender
having executed, delivered or performed its obligations, or
received payment under or enforced, this Credit Agreement or
any Notes. If any such non-excluded taxes, levies, imposts,
duties, charges, fees, deductions or withholdings ("Non-
Excluded Taxes") are required to be withheld from any
amounts payable to any Agent or any Lender hereunder or
under any Notes, (A) the amounts so payable to such Agent or
such Lender shall be increased to the extent necessary to
yield to such Agent or such Lender (after payment of all Non-
Excluded Taxes) interest or any such other amounts payable
hereunder at the rates or in the amounts specified in this
Credit Agreement and any Notes, provided, however, that the
Credit Parties shall be entitled to deduct and withhold any
Non-Excluded Taxes and shall not be required to increase any
such amounts payable to any Lender that is not organized
under the laws of the United States of America or a state
thereof if such Lender fails to comply with the requirements
of paragraph (b) of this Section 3.14 whenever any Non-
Excluded Taxes are payable by a Credit Party, and (B) as
promptly as possible after requested such Credit Party shall
send to the Administrative Agent for its own account or for
the account of such other Agent or such Lender, as the case
may be, a certified copy of an original official receipt
received by such Credit Party showing payment thereof or
other documentation reasonably acceptable to the
Administrative Agent. If a Credit Party fails to pay any
Non-Excluded Taxes when due to the appropriate taxing
authority or fails to remit to the Administrative Agent the
required receipts or other required documentary evidence,
the Borrower shall indemnify any Agent and any Lender for
any incremental Non-Excluded Taxes, interest or penalties
that may become payable by such Agent or any such Lender as
a result of any such failure. The agreements in this
subsection shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts
payable hereunder.
(b) Each Lender that is not incorporated under the
laws of the United States of America or a state thereof
shall:
(i) (A) on or before the date of any
payment by a Credit Party under this Credit Agreement
or Notes to such Lender, deliver to the Borrower and
the Administrative Agent (x) two duly completed copies
of United States Internal Revenue Service Form 1001 or
4224, or successor applicable form, as the case may be,
certifying that it is entitled to receive payments
under this Credit Agreement and any Notes without
deduction or withholding of any United States federal
income taxes and (y) an Internal Revenue Service Form W-
8 or W-9, or successor applicable form, as the case may
be, certifying that it is entitled to an exemption from
United States backup withholding tax;
(B) deliver to the Borrower and the
Administrative Agent two further copies of any such
form or certification on or before the date that any
such form or certification expires or becomes obsolete
and after the occurrence of any event requiring a
change in the most recent form previously delivered by
it to the Borrower; and
(C) obtain such extensions of time for
filing and complete such forms or certifications as may
reasonably be requested by the Borrower or the
Administrative Agent; or
(ii) in the case of any such Lender that is
not a "bank" within the meaning of Section 881(c)(3)(A)
of the Internal Revenue Code, (A) represent to the
Borrower (for the benefit of the Borrower and the
Administrative Agent) that it is not a bank within the
meaning of Section 881(c)(3)(A) of the Internal Revenue
Code, (B) agree to furnish to the Borrower, on or
before the date of any payment by the Borrower, with a
copy to the Administrative Agent, two accurate and
complete original signed copies of Internal Revenue
Service Form W-8, or successor applicable form
certifying to such Lender's legal entitlement at the
date of such certificate to an exemption from U.S.
withholding tax under the provisions of Section 881(c)
of the Internal Revenue Code with respect to payments
to be made under this Credit Agreement and any Notes
(and to deliver to the Borrower and the Administrative
Agent two further copies of such form on or before the
date it expires or becomes obsolete and after the
occurrence of any event requiring a change in the most
recently provided form and, if necessary, obtain any
extensions of time reasonably requested by the Borrower
or the Administrative Agent for filing and completing
such forms), and (C) agree, to the extent legally
entitled to do so, upon reasonable request by the
Borrower, to provide to the Borrower (for the benefit
of the Borrower and the Administrative Agent) such
other forms as may be reasonably required in order to
establish the legal entitlement of such Lender to an
exemption from withholding with respect to payments
under this Credit Agreement and any Notes.
Notwithstanding the above, if any change in treaty, law or
regulation has occurred after the date such Person becomes a
Lender hereunder which renders all such forms inapplicable
or which would prevent such Lender from duly completing and
delivering any such form with respect to it and such Lender
so advises the Borrower and the Administrative Agent, then
such Lender shall be exempt from such requirements. Each
Person that shall become a Lender or a participant of a
Lender pursuant to Section 11.3 shall, upon the
effectiveness of the related transfer, be required to
provide all of the forms, certifications and statements
required pursuant to this subsection (b); provided that in
the case of a participant of a Lender, the obligations of
such participant of a Lender pursuant to this subsection (b)
shall be determined as if the participant of a Lender were a
Lender except that such participant of a Lender shall
furnish all such required forms, certifications and
statements to the Lender from which the related
participation shall have been purchased.
3.15 Compensation.
The Credit Parties promise to indemnify each Lender and to
hold each Lender harmless from any loss or expense which such
Lender may sustain or incur as a consequence of (a) default by
the Borrower in making a borrowing of, conversion into or
continuation of Eurodollar Loans after the Borrower has given a
notice requesting the same in accordance with the provisions of
this Credit Agreement, (b) default by the Borrower in making any
prepayment of a Eurodollar Loan after the Borrower has given a
notice thereof in accordance with the provisions of this Credit
Agreement and (c) the making of a prepayment of Eurodollar Loans
on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount
equal to (i) the amount of interest which would have accrued on
the amount so prepaid, or not so borrowed, converted or
continued, for the period from the date of such prepayment or of
such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to
borrow, convert or continue, the Interest Period that would have
commenced on the date of such failure) in each case at the
applicable rate of interest for such Eurodollar Loans provided
for herein (excluding, however, the Applicable Percentage
included therein, if any) minus (ii) the amount of interest (as
reasonably determined by such Lender) which would have accrued to
such Lender on such amount by placing such amount on deposit for
a comparable period with leading banks in the interbank
Eurodollar market. The agreements in this Section shall survive
the termination of this Credit Agreement and the payment of the
Loans and all other amounts payable hereunder.
3.16 Evidence of Debt.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrower
from time to time, including the amounts of principal and
interest payable and paid to such Lender from time to time
under this Credit Agreement. Each Lender will make
reasonable efforts to maintain the accuracy of its account
or accounts and to promptly update its account or accounts
from time to time, as necessary.
(b) The Administrative Agent shall maintain the
Register pursuant to Section 11.3(c), and a subaccount for
each Lender, in which Register and subaccounts (taken
together) shall be recorded (i) the amount, type and
Interest Period of each such Loan hereunder, (ii) the amount
of any principal or interest due and payable or to become
due and payable to each Lender hereunder, and (iii) the
amount of any sum received by the Administrative Agent
hereunder from or for the account of the Borrower and each
Lender's share thereof, if any. The Administrative Agent
will make reasonable efforts to maintain the accuracy of the
subaccounts referred to in the preceding sentence and to
promptly update such subaccounts from time to time, as
necessary.
(c) The entries made in the accounts, Register and
subaccounts maintained pursuant to subsection (b) of this
Section 3.16 (and, if consistent with the entries of the
Administrative Agent, subsection (a)) shall be prima facie
evidence of the existence and amounts of the obligations of
the Borrower therein recorded; provided, however, that the
failure of any Lender or the Administrative Agent to
maintain such account, such Register, or such subaccount, as
applicable, or any error therein, shall not in any manner
affect the obligation of the Borrower to repay the Loans
made by such Lender in accordance with the terms hereof.
SECTION 4
GUARANTY
4.1 Guaranty of Payment.
Subject to Section 4.7 below, each of the Guarantors hereby,
jointly and severally, unconditionally guarantees to each Lender,
each Affiliate of Lender that enters into a Hedging Agreement and
the Administrative Agent the prompt payment of the Credit Party
Obligations in full when due (whether at stated maturity, as a
mandatory prepayment, by acceleration or otherwise). This
Guaranty is a guaranty of payment and not of collection and is a
continuing guaranty and shall apply to all Credit Party
Obligations whenever arising.
4.2 Obligations Unconditional.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity,
regularity or enforceability of any of the Credit Documents or
the Hedging Agreements, or any other agreement or instrument
referred to therein, to the fullest extent permitted by
applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge
or defense of a surety or guarantor. Each Guarantor agrees that
this Guaranty may be enforced by the Lenders without the
necessity at any time of resorting to or exhausting any other
security or collateral and without the necessity at any time of
having recourse to the Notes or any other of the Credit Documents
or any collateral, if any, hereafter securing the Credit Party
Obligations or otherwise and each Guarantor hereby waives the
right to require the Lenders to proceed against the Borrower or
any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right.
Each Guarantor further agrees that it shall have no right of
subrogation, indemnity, reimbursement or contribution against the
Borrower or any other Guarantor of the Credit Party Obligations
for amounts paid under this Guaranty until such time as the
Lenders (and any Affiliates of Lenders entering into Hedging
Agreements) have been paid in full, all Commitments under the
Credit Agreement have been terminated and no Person or
Governmental Authority shall have any right to request any return
or reimbursement of funds from the Lenders in connection with
monies received under the Credit Documents. Each Guarantor
further agrees that nothing contained herein shall prevent the
Lenders from suing on the Notes or any of the other Credit
Documents or any of the Hedging Agreements or foreclosing its
security interest in or Lien on any collateral, if any, securing
the Credit Party Obligations or from exercising any other rights
available to it under this Credit Agreement, the Notes, any other
of the Credit Documents, or any other instrument of security, if
any, and the exercise of any of the aforesaid rights and the
completion of any foreclosure proceedings shall not constitute a
discharge of any of any Guarantor's obligations hereunder; it
being the purpose and intent of each Guarantor that its
obligations hereunder shall be absolute, independent and
unconditional under any and all circumstances. Neither any
Guarantor's obligations under this Guaranty nor any remedy for
the enforcement thereof shall be impaired, modified, changed or
released in any manner whatsoever by an impairment, modification,
change, release or limitation of the liability of the Borrower or
by reason of the bankruptcy or insolvency of the Borrower. Each
Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Credit Party Obligations and
notice of or proof of reliance of by any Agent or any Lender upon
this Guarantee or acceptance of this Guarantee. The Credit Party
Obligations, and any of them, shall conclusively be deemed to
have been created, contracted or incurred, or renewed, extended,
amended or waived, in reliance upon this Guarantee. All dealings
between the Borrower and any of the Guarantors, on the one hand,
and the Agents and the Lenders, on the other hand, likewise shall
be conclusively presumed to have been had or consummated in
reliance upon this Guarantee. The Guarantors further agree to
all rights of set-off as set forth in Section 11.2.
4.3 Modifications.
Each Guarantor agrees that (a) all or any part of the
Collateral now or hereafter held for the Credit Party
Obligations, if any, may be exchanged, compromised or surrendered
from time to time; (b) the Lenders shall not have any obligation
to protect, perfect, secure or insure any such security
interests, liens or encumbrances now or hereafter held, if any,
for the Credit Party Obligations or the properties subject
thereto; (c) the time or place of payment of the Credit Party
Obligations may be changed or extended, in whole or in part, to a
time certain or otherwise, and may be renewed or accelerated, in
whole or in part; (d) the Borrower and any other party liable for
payment under the Credit Documents may be granted indulgences
generally; (e) any of the provisions of the Notes or any of the
other Credit Documents may be modified, amended or waived; (f)
any party (including any co-guarantor) liable for the payment
thereof may be granted indulgences or be released; and (g) any
deposit balance for the credit of the Borrower or any other party
liable for the payment of the Credit Party Obligations or liable
upon any security therefor may be released, in whole or in part,
at, before or after the stated, extended or accelerated maturity
of the Credit Party Obligations, all without notice to or further
assent by such Guarantor, which shall remain bound thereon,
notwithstanding any such exchange, compromise, surrender,
extension, renewal, acceleration, modification, indulgence or
release.
4.4 Waiver of Rights.
Each Guarantor expressly waives to the fullest extent
permitted by applicable law: (a) notice of acceptance of this
Guaranty by the Lenders and of all extensions of credit to the
Borrower by the Lenders; (b) presentment and demand for payment
or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as
specifically required in the Credit Agreement) with respect to
the Credit Party Obligations or with respect to any security
therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security
interest, lien or encumbrance, if any, hereafter securing the
Credit Party Obligations, or the Lenders' subordinating,
compromising, discharging or releasing such security interests,
liens or encumbrances, if any; (e) all other notices to which
such Guarantor might otherwise be entitled; and (f) demand for
payment under this Guaranty.
4.5 Reinstatement.
The obligations of the Guarantors under this Section 4 shall
be automatically reinstated if and to the extent that for any
reason any payment by or on behalf of any Person in respect of
the Credit Party Obligations is rescinded or must be otherwise
restored by any holder of any of the Credit Party Obligations,
whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it
will indemnify the Agents and each Lender promptly upon demand
for all reasonable costs and expenses (including, without
limitation, reasonable fees of counsel) incurred by an Agent or
such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending
against any claim alleging that such payment constituted a
preference, fraudulent transfer or similar payment under any
bankruptcy, insolvency or similar law. Upon the request of the
Borrower, an Agent or a Lender will provide written support for
any claim made pursuant to this Section 4.5; provided that
failure to provide such written support shall not impair a
Lender's or an Agent's claim hereunder.
4.6 Remedies.
The Guarantors agree that, to the fullest extent permitted
by law, as between the Guarantors, on the one hand, and the
Agents and the Lenders, on the other hand, the Credit Party
Obligations may be declared to be forthwith due and payable as
provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in
Section 9.2) notwithstanding any stay, injunction or other
prohibition preventing such declaration (or preventing such
Credit Party Obligations from becoming automatically due and
payable) as against any other Person and that, in the event of
such declaration (or such Credit Party Obligations being deemed
to have become automatically due and payable), such Credit Party
Obligations (whether or not due and payable by any other Person)
shall forthwith become due and payable by the Guarantors. The
Guarantors acknowledge and agree that their obligations hereunder
are secured in accordance with the terms of the Collateral
Documents and that the Lenders may exercise their remedies
thereunder in accordance with the terms thereof.
4.7 Limitation of Guaranty.
Notwithstanding any provision to the contrary contained
herein or in any of the other Credit Documents, to the extent the
obligations of any Guarantor shall be adjudicated to be invalid
or unenforceable for any reason (including, without limitation,
because of any applicable state or federal law relating to
fraudulent conveyances or transfers) then the obligations of such
Guarantor hereunder shall be limited to the maximum amount that
is permissible under applicable law (whether federal or state and
including, without limitation, the Bankruptcy Code).
4.8 Rights of Contribution.
The Guarantors hereby agree as among themselves that, if any
Guarantor shall make an Excess Payment (as defined below), such
Guarantor shall have a right of contribution from each other
Guarantor in an amount equal to such other Guarantor's
Contribution Share (as defined below) of such Excess Payment.
The payment obligations of any Guarantor under this Section 4.8
shall be subordinate and subject in right of payment to the
Credit Party Obligations until such time as the Credit Party
Obligations have been fully satisfied, and none of the Guarantors
shall exercise any right or remedy under this Section 4.8 against
any other Guarantor until such Credit Party Obligations have been
fully satisfied. For purposes of this Section 4.8, (a) "Excess
Payment" shall mean the amount paid by any Guarantor in excess of
its Pro Rata Share of any Credit Party Obligations; (b) "Pro Rata
Share" shall mean, for any Guarantor in respect of any payment of
Credit Party Obligations, the ratio (expressed as a percentage)
as of the date of such payment of Credit Party Obligations of (i)
the amount by which the aggregate present fair salable value of
all of its assets and properties exceeds the amount of all debts
and liabilities of such Guarantor (including contingent,
subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of such Guarantor hereunder) to (ii)
the amount by which the aggregate present fair salable value of
all assets and other properties of all of the Credit Parties
exceeds the amount of all of the debts and liabilities (including
contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of the Credit Parties
hereunder) of the Credit Parties; provided, however, that, for
purposes of calculating the Pro Rata Shares of the Guarantors in
respect of any payment of Credit Party Obligations, any Guarantor
that became a Guarantor subsequent to the date of any such
payment shall be deemed to have been a Guarantor on the date of
such payment and the financial information for such Guarantor as
of the date such Guarantor became a Guarantor shall be utilized
for such Guarantor in connection with such payment; and (c)
"Contribution Share" shall mean, for any Guarantor in respect of
any Excess Payment made by any other Guarantor, the ratio
(expressed as a percentage) as of the date of such Excess Payment
of (i) the amount by which the aggregate present fair salable
value of all of its assets and properties exceeds the amount of
all debts and liabilities of such Guarantor (including
contingent, subordinated, unmatured, and unliquidated
liabilities, but excluding the obligations of such Guarantor
hereunder) to (ii) the amount by which the aggregate present fair
salable value of all assets and other properties of the Credit
Parties other than the maker of such Excess Payment exceeds the
amount of all of the debts and liabilities (including contingent,
subordinated, unmatured, and unliquidated liabilities, but
excluding the obligations of the Credit Parties) of the Credit
Parties other than the maker of such Excess Payment; provided,
however, that, for purposes of calculating the Contribution
Shares of the Guarantors in respect of any Excess Payment, any
Guarantor that became a Guarantor subsequent to the date of any
such Excess Payment shall be deemed to have been a Guarantor on
the date of such Excess Payment and the financial information for
such Guarantor as of the date such Guarantor became a Guarantor
shall be utilized for such Guarantor in connection with such
Excess Payment. This Section 4.8 shall not be deemed to affect
any right of subrogation, indemnity, reimbursement or
contribution that any Guarantor may have under applicable law
against the Borrower in respect of any payment of Credit Party
Obligations.
SECTION 5
CONDITIONS PRECEDENT
5.1 Closing Conditions.
The obligation of the Lenders to enter into this Credit
Agreement and make the initial Extension of Credit is subject to
satisfaction (or waiver by the Administrative Agent with the
consent of the Required Lenders) of the following conditions:
(a) Executed Credit Documents. Receipt by the
Administrative Agent of duly executed copies of: (i) this
Credit Agreement; (ii) the Notes; (iii) the Collateral
Documents; and (iv) all other Credit Documents, each in form
and substance reasonably acceptable to the Administrative
Agent and the Lenders; provided that, receipt by the
Administrative Agent of an executed signature page to this
Credit Agreement from a Lender shall be deemed approval by
such Lender of the form and substance of the Credit
Documents.
(b) Authority Documents. Receipt by the
Administrative Agent of the following:
(i) Charter Documents. Copies of the
articles or certificate of incorporation or other
charter documents of such Credit Party certified to be
true and complete as of a recent date by the
appropriate Governmental Authority of the state or
other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit
Party to be true and correct as of the Effective Date.
(ii) Bylaws. A copy of the bylaws of such
Credit Party certified by a secretary or assistant
secretary of such Credit Party to be true and correct
as of the Effective Date.
(iii) Resolutions. Copies of resolutions
of the Board of Directors of such Credit Party
approving and adopting the Credit Documents to which it
is a party, the transactions contemplated therein and
authorizing execution and delivery thereof, certified
by a secretary or assistant secretary of such Credit
Party to be true and correct and in force and effect as
of the Effective Date.
(iv) Good Standing. Copies of certificates
of good standing, existence or its equivalent with
respect to such Credit Party certified as of a recent
date by the appropriate Governmental Authorities of the
state or other jurisdiction of incorporation and each
other jurisdiction in which the failure to so qualify
and be in good standing would have or be reasonably
expected to have a Material Adverse Effect on the
business or operations of such Credit Party in such
jurisdiction.
(v) Incumbency. An incumbency certificate
of such Credit Party certified by a secretary or
assistant secretary of such Credit Party to be true and
correct as of the Effective Date.
(c) Opinion of Counsel. Receipt by the Administrative
Agent of an opinion or opinions from legal counsel to the
Credit Parties (which shall cover, among other things,
authority, legality, validity, binding effect, and
enforceability of the Credit Documents and the attachment,
perfection, and validity of Liens), reasonably satisfactory
to the Administrative Agent, addressed to the Administrative
Agent and the Lenders and dated as of the Effective Date.
(d) Financial Statements. Receipt by the Lenders of
such financial information regarding the Credit Parties and
their Subsidiaries as they may request, including, but not
limited to, (i) the consolidated financial statements of the
Borrower and its Subsidiaries for their three most recently
ended fiscal years, including balance sheets, income
statements and cash flow statements audited by independent
public accountants of recognized national standing and
prepared in accordance with GAAP and (ii) unaudited
consolidated financial statements of the Borrower and its
Subsidiaries, prepared in accordance with GAAP as of the
fiscal quarter ending September 29, 1999 for the fiscal
quarter ending as of such date.
(e) Note Purchase Agreements. The Administrative
Agent shall have received (i) copies, certified by an
officer of the Borrower as true and complete, of the Note
Purchase Agreements (including all exhibits and schedules
thereto) as originally executed and delivered, together with
any amendments or modifications to such Note Purchase
Agreements as of the Closing Date, such Note Purchase
Agreements and amendments or modifications to be acceptable
to the Lenders, (ii) evidence that the Note Purchase
Agreements have been consummated in accordance with the
terms thereof and (iii) evidence that the Borrower has
received proceeds from the issuance of the Senior Notes of
at least $75 million.
(f) Personal Property Collateral. The Collateral
Agent shall have received, in form and substance reasonably
satisfactory to the Collateral Agent:
(i) searches of Uniform Commercial Code
("UCC") filings in the jurisdiction of the chief
executive office of each Credit Party copies of the
financing statements on file in such jurisdictions and
evidence that no Liens exist other than Permitted
Liens;
(ii) duly executed UCC financing statements
for each appropriate jurisdiction as is necessary, in
the Collateral Agent's sole discretion, to perfect the
Collateral Agent's security interest (for the benefit
of Secured Parties) in the Collateral; and
(iii) all stock certificates evidencing
the stock pledged to the Collateral Agent pursuant to
the Pledge Agreement, together with duly executed in
blank undated stock powers attached thereto.
(g) Consents. Receipt by the Administrative Agent of
evidence that (A) all governmental, shareholder and third
party consents and approvals necessary in connection with
the Note Purchase Agreements and the related financings and
transactions contemplated thereby and hereby have been
received and (B) no condition or Requirement of Law exists
which could reasonably be likely to restrain, prevent or
impose any material adverse conditions on the issuance of
the Senior Notes or the financings or other transactions
contemplated hereby.
(h) Litigation. There shall not exist any pending or,
to the knowledge of any Credit Party, threatened action,
suit, investigation or proceeding against a Credit Party or
any of their Subsidiaries that would have or be reasonably
expected to have a Material Adverse Effect.
(i) Officer's Certificates. The Administrative Agent
shall have received a certificate or certificates executed
by a Responsible Officer of the Borrower as of the Effective
Date stating that, among other things, (i) the Credit
Parties and each of their Subsidiaries are in compliance
with all existing material financial obligations after
giving effect to the issuance of the Senior Notes and the
transactions contemplated hereby, (ii) no action, suit,
investigation or proceeding is pending or, to the knowledge
of any Credit Party, threatened in any court or before any
arbitrator or governmental instrumentality that purports to
affect the Credit Parties, any of their Subsidiaries or any
transaction contemplated by the Credit Documents, if such
action, suit, investigation or proceeding would have or be
reasonably expected to have a Material Adverse Effect,
(iii) the financial statements and information delivered to
the Administrative Agent on or before the Effective Date
were prepared in good faith and in accordance with GAAP (iv)
since December 30, 1998, there has been no development or
event relating to or affecting a Credit Party or any of its
Subsidiaries which would have or be reasonably expected to
have a Material Adverse Effect, (v) the issuance of the
Senior Notes has been consummated in accordance with the
terms of the Note Purchase Agreements and is effective, and
(vi) immediately after giving effect to this Credit
Agreement, the other Credit Documents and all the
transactions contemplated therein to occur on such date, (A)
the Credit Parties, on a consolidated basis, are Solvent,
(B) no Default or Event of Default exists, (C) all
representations and warranties contained herein and in the
other Credit Documents are true and correct in all material
respects, and (D) the Credit Parties are in compliance with
each of the financial covenants set forth in Section 7.2.
(j) Fees and Expenses. Payment by the Credit Parties
of the fees and expenses owed by them as set forth in the
Fee Letter.
(k) Material Adverse Effect. No Material Adverse
Effect and no material adverse change in the facts and
information regarding the Credit Parties and their
Subsidiaries provided to the Agents and the Lenders shall
have occurred since December 30, 1998.
(l) Prior Credit Agreements. Receipt by the
Administrative Agent of evidence that (i) the Prior Credit
Agreements and all documents executed or delivered in
connection with the Prior Credit Agreements have been
terminated, and (ii) all amounts owing in connection with
the Prior Credit Agreements have been paid in full on the
Effective Date and all liens granted in connection therewith
have been or are agreed to be released upon such repayment
in full.
(m) Year 2000 Problem. The Administrative Agent shall
be satisfied that (i) the Credit Parties and their
Subsidiaries are taking all necessary and appropriate steps
to ascertain the extent of, and to quantify and successfully
address, business and financial risks facing the Credit
Parties and Subsidiaries as a result of the Year 2000
Problem, including risks resulting from the failure of key
vendors and customers of the Credit Parties and their
Subsidiaries to successfully address the Year 2000 Problem
and (ii) the Credit Parties' and their Subsidiaries'
material computer applications and those of its key vendors
and customers will, on a timely basis, adequately address
the Year 2000 Problem in all material respects.
(n) Other. Receipt and satisfactory review by the
Administrative Agent and its counsel of such other
documents, instruments, agreements or information as
reasonably and timely requested by the Administrative Agent
or its counsel or any Lender, including, but not limited to,
shareholder agreements and information regarding management
of the Credit Parties and their Subsidiaries, litigation,
tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material
contracts, debt agreements, property ownership,
environmental matters and contingent liabilities of the
Credit Parties and their Subsidiaries.
5.2 Conditions to All Extensions of Credit.
In addition to the conditions precedent stated elsewhere
herein, the Lenders shall not be obligated to make Loans nor
shall the Issuing Lender be required to issue or extend a Letter
of Credit unless:
(a) Notice. The Borrower shall have delivered (i) in
the case of any new Revolving Loan, a Notice of Borrowing to
the Administrative Agent, duly executed and completed, by
the time specified in Section 2.1, (ii) in the case of any
Letter of Credit, to the Issuing Lender an appropriate
request for issuance of a Letter of Credit in accordance
with the provisions of Section 2.2 and (iii) in the case of
any Swingline Loan, to the Swingline Lender a Swingline Loan
Request, duly executed and completed, by the time specified
in Section 2.3.
(b) Representations and Warranties. The
representations and warranties made by the Credit Parties in
any Credit Document are true and correct in all material
respects at and as if made as of such date except to the
extent they expressly relate to an earlier date;
(c) No Default. No Default or Event of Default shall
exist or be continuing either prior to or after giving
effect thereto;
(d) Material Adverse Effect. There shall not have
occurred any Material Adverse Effect; and
(e) Availability. Immediately after giving effect to
the making of a Loan (and the application of the proceeds
thereof) or to the issuance of a Letter of Credit, as the
case may be, (i) the sum of the Revolving Loans outstanding
plus LOC Obligations outstanding plus Swingline Loans
outstanding shall not exceed the Revolving Commitment
Amount, (ii) the sum of LOC Obligations outstanding shall
not exceed the LOC Committed Amount and (iii) the sum of
Swingline Loans outstanding shall not exceed the Swingline
Committed Amount.
The delivery of each Notice of Borrowing and each request for a
Letter of Credit shall constitute a representation and warranty
by the Borrower of the correctness of the matters specified in
subsections (b), (c), (d) and (e) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative
Agent and each Lender that:
6.1 Financial Condition.
(a) The financial statements delivered to the Lenders
pursuant to Section 5.1(d) and Sections 7.1(a) and (b): (i)
have been prepared in accordance with GAAP (subject, in the
case of financial statements other than year-end financial
statements, to normal year-end adjustments and the absence
of footnotes), and (ii) present fairly in all material
respects (on the basis disclosed in the footnotes to such
financial statements, if any) the consolidated financial
condition, results of operations and cash flows of the
Credit Parties and their Subsidiaries as of such date and
for such periods.
(b) Since December 30, 1998, there has been no sale,
transfer or other disposition by any Credit Party or any of
its Subsidiaries of any material part of the business or
Property of the Credit Parties and their Subsidiaries taken
as a whole, and no purchase or other Acquisition by any of
them of any business or Property (including any Capital
Stock of any other Person) material in relation to the
consolidated financial condition of the Credit Parties taken
as a whole, in each case which is not (i) reflected in the
most recent financial statements delivered to the Lenders
pursuant to Section 7.1 or in the notes thereto or (ii)
otherwise permitted by the terms of this Credit Agreement
and communicated to the Administrative Agent.
6.2 No Material Change.
Since December 30, 1998, there has been no development or
event relating to or affecting a Credit Party or any of their
Subsidiaries which would have or be reasonably expected to have a
Material Adverse Effect. From and after the Closing Date, except
as otherwise permitted under this Credit Agreement, no dividends
or other distributions have been declared, paid or made upon the
Capital Stock or other equity interest in a Credit Party or any
of its Subsidiaries nor has any of the Capital Stock or other
equity interest in a Credit Party or any of its Subsidiaries been
redeemed, retired, purchased or otherwise acquired for value.
6.3 Organization and Good Standing.
Each Credit Party (a) is a corporation or limited liability
company duly incorporated or organized, validly existing and in
good standing under the laws of the State (or other jurisdiction)
of its incorporation or organization, (b) is duly qualified and
in good standing as a foreign corporation or a limited liability
company and authorized to do business in every jurisdiction where
the failure to be so qualified, in good standing or authorized
would have or be reasonably expected to have a Material Adverse
Effect and (c) has the requisite corporate or limited liability
company power and authority to own its properties and to carry on
its business as now conducted and as proposed to be conducted.
6.4 Due Authorization.
Each Credit Party (a) has the requisite corporate or limited
liability company power and authority to execute, deliver and
perform this Credit Agreement and the other Credit Documents to
which it is a party and to incur the obligations herein and
therein provided for and (b) is duly authorized to, and has been
authorized by all necessary corporate or limited liability
company action, to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party.
6.5 No Conflicts.
Neither the execution and delivery of the Credit Documents,
nor the consummation of the transactions contemplated therein,
nor performance of and compliance with the terms and provisions
thereof by such Credit Party will (a) violate or conflict with
any provision of its articles or certificate of incorporation,
operating agreement, articles of organization or bylaws, (b)
violate, contravene or materially conflict with any Requirement
of Law or any other law, regulation (including, without
limitation, Regulation U, Regulation T or Regulation X), order,
writ, judgment, injunction, decree or permit applicable to it,
(c) violate, contravene or conflict with contractual provisions
of, or cause an event of default under, any indenture, loan
agreement, mortgage, deed of trust, contract or other agreement
or instrument to which it is a party or by which it may be bound,
the violation of which would have or be reasonably expected to
have a Material Adverse Effect, or (d) result in or require the
creation of any Lien (other than those contemplated in or created
in connection with the Credit Documents) upon or with respect to
its properties.
6.6 Consents.
Except for consents, approvals, authorizations, orders,
filings, registrations and qualifications which have been
obtained, no consent, approval, authorization or order of, or
filing, registration or qualification with, any court or
Governmental Authority or third party in respect of any Credit
Party is required in connection with the execution, delivery or
performance of this Credit Agreement or any of the other Credit
Documents by such Credit Party.
6.7 Enforceable Obligations.
This Credit Agreement and the other Credit Documents have
been duly executed and delivered and constitute legal, valid and
binding obligations of each Credit Party enforceable against such
Credit Party in accordance with their respective terms, except as
may be limited by bankruptcy, insolvency, reorganization or
moratorium laws or similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
6.8 No Default.
No Credit Party, nor any of its Subsidiaries, is in default
in any respect under any contract, lease, loan agreement,
indenture, mortgage, security agreement or other agreement or
obligation to which it is a party or by which any of its
properties is bound which default would have or be reasonably
expected to have a Material Adverse Effect. No Default or Event
of Default has occurred or exists except as previously disclosed
in writing to the Lenders.
6.9 Ownership.
Each Credit Party, and each of its Subsidiaries, is the
owner of, and has good and marketable title to, or has a valid
license or lease to use all of its respective assets (including,
without limitation, its Intellectual Property (as defined in
Section 6.19)) and none of such assets is subject to any Lien
other than Permitted Liens.
6.10 Indebtedness.
The Credit Parties and their Subsidiaries have no
Indebtedness except (a) as disclosed in the financial statements
referenced in Section 6.1, (b) as set forth on Schedule 6.10 and
(c) as otherwise permitted by this Credit Agreement.
6.11 Litigation.
There are no actions, suits or legal, equitable, arbitration
or administrative proceedings, pending or, to the knowledge of
any Credit Party, threatened against, any Credit Party or any of
its Subsidiaries which would have or be reasonably expected to
have a Material Adverse Effect.
6.12 Taxes.
Each Credit Party, and each of its Subsidiaries, has filed,
or caused to be filed, all tax returns (federal, state, local and
foreign) required to be filed and paid or caused to be paid (a)
all amounts of taxes shown thereon to be due and payable
(including interest and penalties) and (b) all other taxes, fees,
assessments and other governmental charges (including mortgage
recording taxes, documentary stamp taxes and intangibles taxes)
that are due and payable, except for such taxes (i) which are not
yet delinquent or (ii) that are being contested in good faith and
by proper proceedings, and against which adequate reserves are
being maintained in accordance with GAAP. Except as disclosed on
Schedule 6.12, no Credit Party is aware as of the Closing Date of
any proposed tax assessments against it or any of its
Subsidiaries.
6.13 Compliance with Law.
Each Credit Party, and each of its Subsidiaries, is in
compliance with all Requirements of Law and all other laws,
rules, regulations, orders and decrees (including without
limitation Environmental Laws) applicable to it, or to its
properties, unless such failure to comply would not have or be
reasonably expected to have a Material Adverse Effect.
6.14 ERISA.
Except as would not have or be reasonably expected to have a
Material Adverse Effect:
(a) During the five-year period prior to the date on
which this representation is made or deemed made: (i) no
Termination Event has occurred and, to the knowledge of the
Credit Parties, no event or condition has occurred or exists
as a result of which any Termination Event could reasonably
be expected to occur, with respect to any Plan; (ii) no
"accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or
not waived, has occurred with respect to any Plan; (iii)
each Plan has been maintained, operated, and funded in
compliance with its own terms and in material compliance
with the provisions of ERISA, the Code, and any other
applicable federal or state laws; and (iv) no lien in favor
or the PBGC or a Plan has arisen or is reasonably expected
to arise on account of any Plan.
(b) The actuarial present value of all "benefit
liabilities" (within the meaning of Section 4001 of ERISA)
under each Single Employer Plan (determined, utilizing the
actuarial assumptions used to fund such Plans), whether or
not vested, did not, as of the last annual valuation date
prior to the date on which this representation is made or
deemed made, exceed the fair market current value as of such
date of the assets of such Plan allocable to such accrued
liabilities.
(c) Neither any Credit Party, nor any of its
Subsidiaries, nor any ERISA Affiliate has incurred, or, to
the knowledge of the Credit Parties, is reasonably expected
to incur, any withdrawal liability under ERISA to any
Multiemployer Plan or Multiple Employer Plan. Neither any
Credit Party, nor any of its Subsidiaries, nor any ERISA
Affiliate has received any notification that any
Multiemployer Plan is in reorganization (within the meaning
of Section 4241 of ERISA), is insolvent (within the meaning
of Section 4245 of ERISA), or has been terminated (within
the meaning of Title IV of ERISA), and, to the knowledge of
the Credit Parties, no Multiemployer Plan is reasonably
expected to be in reorganization, insolvent, or terminated.
(d) No nonexempt prohibited transaction (within the
meaning of Section 406 of ERISA or Section 4975 of the Code)
or breach of fiduciary responsibility has occurred with
respect to a Plan which has subjected or is reasonably
expected to subject any Credit Party or any of its
Subsidiaries or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section
4975 of the Code, or under any agreement or other instrument
pursuant to which any Credit Party or any of its
Subsidiaries or any ERISA Affiliate has agreed or is
required to indemnify any person against any such liability.
(e) The present value of the liability of the Credit
Parties and their Subsidiaries and each ERISA Affiliate for
post-retirement welfare benefits to be provided to their
current and former employees under Plans which are welfare
benefit plans (as defined in Section 3(1) of ERISA), net of
all assets under all such Plans allocable to such benefits,
are reflected on the Financial Statements in accordance with
FASB 106.
(f) Each Plan which is a welfare plan (as defined in
Section 3(1) of ERISA) to which Sections 601-609 of ERISA
and Section 4980B of the Code apply has been administered in
material compliance with such sections.
6.15 Subsidiaries.
Set forth on Schedule 6.15 is a complete and accurate list
of all Subsidiaries of each Credit Party. Information on
Schedule 6.15 includes the jurisdiction of incorporation or
organization, the number of shares of each class of Capital Stock
or other equity interests outstanding, the number and percentage
of outstanding shares of each class owned (directly or
indirectly) by such Credit Party; and the number and effect, if
exercised, of all outstanding options, warrants, rights of
conversion or purchase and all other similar rights with respect
thereto. The outstanding Capital Stock and other equity
interests of all such Subsidiaries is validly issued, fully paid
and, with respect to any Subsidiary that is a corporation, non-
assessable and is owned by each such Credit Party, directly or
indirectly, free and clear of all Liens (other than those arising
under or contemplated in connection with the Credit Documents).
Other than as set forth in Schedule 6.15, neither any Credit
Party nor any Subsidiary thereof has outstanding any securities
convertible into or exchangeable for its Capital Stock nor does
any such Person have outstanding any rights to subscribe for or
to purchase or any options for the purchase of, or any agreements
providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to its
Capital Stock. Schedule 6.15 may be updated from time to time by
the Borrower by giving written notice thereof to the
Administrative Agent.
6.16 Use of Proceeds.
The proceeds of the Loans hereunder will be used solely for
the purposes specified in Section 7.10. No proceeds of the
Loans hereunder have been or will be used for the Acquisition of
another Person unless the board of directors (or other comparable
governing body) or stockholders, as appropriate, of such Person
has approved such Acquisition.
6.17 Government Regulation.
(a) No part of the Letters of Credit or proceeds of
the Loans will be used, directly or indirectly, for the
purpose of purchasing or carrying any "margin stock" within
the meaning of Regulation U, or for the purpose of
purchasing or carrying or trading in any securities. If
requested by any Lender or the Administrative Agent, the
Borrower will furnish to the Administrative Agent and each
Lender a statement to the foregoing effect in conformity
with the requirements of FR Form U-1 referred to in
Regulation U. No Indebtedness being reduced or retired out
of the proceeds of the Loans was or will be incurred for the
purpose of purchasing or carrying any margin stock within
the meaning of Regulation U or any "margin security" within
the meaning of Regulation T. "Margin stock" within the
meaning of Regulation U does not constitute more than 25% of
the value of the consolidated assets of the Credit Parties
and their Subsidiaries. None of the transactions
contemplated by the Credit Documents (including, without
limitation, the direct or indirect use of the proceeds of
the Loans) or the Note Purchase Agreements will violate or
result in a violation of (i) the Securities Act of 1933, as
amended, (ii) the Securities Exchange Act of 1934, as
amended, (iii) regulations issued pursuant to the
Securities Act of 1933 or the Securities Exchange Act of
1934, or (iv) Regulation T, U or X.
(b) No Credit Party, nor any of its Subsidiaries, is
subject to regulation under the Public Utility Holding
Company Act of 1935, the Federal Power Act or the Investment
Company Act of 1940, each as amended. In addition, No
Credit Party, nor any of its Subsidiaries, is (i) an
"investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is
not controlled by an "investment company", or (ii) a
"holding company", or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a
"subsidiary" of a "holding company", within the meaning of
the Public Utility Holding Company Act of 1935, as amended.
(c) No director, executive officer or principal
shareholder of any Credit Party or any of its Subsidiaries
has control of a company (i.e. such Credit Party or
Subsidiary) and is a director, executive officer or
principal shareholder of any Lender. For the purposes
hereof the terms "director", "executive officer" and
"principal shareholder" (when used with reference to any
Lender), and the phrase "control of a company", have the
respective meanings assigned thereto in Regulation O.
(d) Each Credit Party and each Subsidiary of a Credit
Party is current with all material reports and documents, if
any, required to be filed with any state or federal
securities commission or similar agency and is in full
compliance in all material respects with all applicable
rules and regulations of such commissions.
6.18 Environmental Matters.
(a) Each of the Credit Parties is in compliance with
all applicable Environmental Laws.
(b) Each of the Real Properties and all operations at
such Real Properties are in compliance with all applicable
Environmental Laws, and there is no violation of any
Environmental Law with respect to such Real Properties or
the businesses operated by the Credit Parties or any of
their Subsidiaries (the "Businesses"), and there are no
conditions relating to the Businesses or such Real
Properties that would reasonably be expected to give rise to
liability under any applicable Environmental Laws.
(c) No Credit Party nor any of its Subsidiaries has
received any written or oral notice of, or inquiry from any
Governmental Authority regarding, any violation, alleged
violation, non-compliance, liability or potential liability
regarding Hazardous Materials or compliance with
Environmental Laws with regard to any of the Real Properties
or the Businesses, nor, to the knowledge of the Credit
Parties or their Subsidiaries, is any such notice being
threatened.
(d) Hazardous Materials have not been transported or
disposed of from the Real Properties, or generated, treated,
stored or disposed of at, on or under any of such Real
Properties or any other location, in each case by, or on
behalf or with the permission of, a Credit Party or any of
its Subsidiaries in a manner that could reasonably be
expected to give rise to liability under any applicable
Environmental Laws.
(e) No judicial proceeding or governmental or
administrative action is pending or, to the knowledge of a
Credit Party or any of its Subsidiaries, threatened, under
any Environmental Law to which a Credit Party or any of its
Subsidiaries is or will be named as a party, nor are there
any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other
administrative or judicial requirements outstanding under
any Environmental Law with respect to a Credit Party or any
of its Subsidiaries, the Real Properties or the Businesses.
(f) There has been no release (including, without
limitation, disposal) or threat of release of Hazardous
Materials at or from the Real Properties, or arising from or
related to the operations of a Credit Party or any of its
Subsidiaries in connection with such Real Properties or
otherwise in connection with the Businesses where such
release constituted a violation of, would give rise to
liability under, or would be required to be reported to a
Governmental Authority pursuant to, any applicable
Environmental Laws.
(g) None of the Real Properties that a Credit Party
owns or leases contains, or has previously contained, any
Hazardous Materials at, on or under such Real Properties in
amounts or concentrations that, if released, constitute or
constituted a violation of, or could give rise to liability
under, Environmental Laws.
(h) No Credit Party, nor any of its Subsidiaries, has
assumed any liability of any Person (other than another
Credit Party, or one of its Subsidiaries) under any
Environmental Law.
(i) The Credit Parties and their Subsidiaries have
adopted procedures that are designed to (i) ensure that each
Credit Party and its Subsidiaries, any of their operations
and each of the Real Properties remains in compliance with
applicable Environmental Laws and (ii) minimize any
liabilities or potential liabilities that each Credit Party
and its Subsidiaries, any of their operations and each of
the Real Properties may have under applicable Environmental
Laws.
6.19 Intellectual Property.
Each Credit Party owns, or has the legal right to use, all
trademarks, tradenames, copyrights, technology, know-how and
processes (the "Intellectual Property") necessary for each of
them to conduct its business as currently conducted except for
those the failure to own or have such legal right to use could
not have a Material Adverse Effect.
6.20 Solvency.
The Credit Parties, on a consolidated basis, are, and after
consummation of the transactions contemplated by this Credit
Agreement, will be Solvent.
6.21 Investments.
All Investments of each Credit Party and its Subsidiaries
are Permitted Investments.
6.22 Location of Chief Executive Office/Principal Place of
Business.
Set forth on Schedule 6.22 is the chief executive office and
principal place of business of each Credit Party. Schedule 6.22
may be updated from time to time by the Borrower by giving
written notice thereof to the Administrative Agent.
6.23 Disclosure.
Neither this Credit Agreement nor any financial statements
delivered to an Agent or the Lenders nor any other document,
certificate or statement furnished to an Agent or the Lenders by
or on behalf of any Credit Party or any of its Subsidiaries in
connection with the transactions contemplated hereby contains any
untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein
or herein not misleading.
6.24 Licenses, etc.
The Credit Parties have obtained and hold in full force and
effect, all franchises, licenses, permits, certificates,
authorizations, qualifications, accreditations, easements, rights
of way and other rights, consents and approvals which are
necessary for the operation of their respective businesses as
presently conducted, except where the failure to obtain would not
have or be reasonably expected to have a Material Adverse Effect.
6.25 No Burdensome Restrictions.
No Credit Party, nor any of its Subsidiaries, is a party to
any agreement or instrument or subject to any other obligation or
any charter or corporate restriction or any provision of any
applicable law, rule or regulation which individually or in the
aggregate, would have or be reasonably expected to have a
Material Adverse Effect.
6.26 Collateral Documents.
The Collateral Documents create valid security interests in,
and Liens on, the Collateral purported to be covered thereby,
which security interests and Liens are currently perfected
security interests and Liens, prior to all other Liens other than
Permitted Liens.
6.27 Year 2000 Compliance.
Each of the Credit Parties has (i) initiated a review and
assessment of all areas within its and each of its Subsidiaries'
businesses and operations (including those affected by suppliers,
vendors and customers) that could be adversely affected by the
Year 2000 Problem, (ii) developed a plan and timeline for
addressing the Year 2000 Problem on a timely basis, and (iii) to
date, implemented that plan in accordance with that timetable.
Based on the foregoing, each Credit Party believes that all
computer applications (including those of its suppliers, vendors
and customers) that are material to its or any of its
Subsidiaries' business and operations are reasonably expected on
a timely basis to be able to perform properly date-sensitive
functions for all dates before and after January 1, 2000 (that
is, be "Year 2000 Compliant"), except to the extent that a
failure to do so could not reasonably be expected to have a
Material Adverse Effect.
6.28 Labor Contracts and Disputes.
(a) There is no collective bargaining agreement or other
labor contract covering employees of any Credit Party; (b) no
union or other labor organization is seeking to organize, or be
recognized as, a collective bargaining unit of employees of any
Credit Party; and (c) there is no pending, or to any Credit
Party's knowledge, threatened, strike, work stoppage, material
unfair labor practice claim or other material labor dispute
against or affecting any Credit Party or its employees.
6.29 Broker's Fees.
No Credit Party will, nor will it permit any of its
Subsidiaries to, pay or agree to pay, or reimburse any other
Person with respect to, any finder's, broker's, investment
banking or other similar fee in connection with any of the
transactions contemplated under the Credit Documents.
6.30 Indebtedness under Note Purchase Agreements.
The Credit Party Obligations and all other Indebtedness
under the Credit Agreement is pari passu with the Indebtedness
arising under the Note Purchase Agreements.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long
as this Credit Agreement is in effect and until the Loans and LOC
Obligations, together with interest and fees and other
obligations then due and payable hereunder, have been paid in
full and the Commitments and Letters of Credit hereunder shall
have terminated:
7.1 Information Covenants.
The Credit Parties will furnish, or cause to be furnished,
to the Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as
available, and in any event within 90 days after the close
of each fiscal year of the Borrower, a consolidated balance
sheet of the Credit Parties and their Subsidiaries, as of
the end of such fiscal year, together with related
consolidated statements of earnings, of shareholder's equity
and of cash flows for such fiscal year, setting forth in
comparative form consolidated figures for the preceding
fiscal year, all such consolidated financial information
described above to be in reasonable form and detail and
audited by independent certified public accountants of
recognized national standing reasonably acceptable to the
Administrative Agent and whose opinion shall be to the
effect that such financial statements have been prepared in
accordance with GAAP (except for changes with which such
accountants concur) and shall not be limited as to the scope
of the audit or qualified in any manner; provided, that
delivery within the time period specified above of the
Borrower's Annual Report on Form 10-K for such fiscal year
(together with the Borrower's annual report to shareholders,
if any, prepared pursuant to Rule 14a-3 under the Securities
Exchange Act of 1934, as amended) prepared in accordance
with the requirements therefor and filed with the Securities
Exchange Commission, together with the accountant's
certificate described above, shall be deemed to satisfy the
requirements of this Section 7.1(a).
(b) Quarterly Financial Statements. As soon as
available, and in any event within 45 days after the close
of each fiscal quarter of the Borrower (other than the
fourth fiscal quarter) a consolidated balance sheet of the
Credit Parties and their Subsidiaries as of the end of such
fiscal quarter, together with related consolidated
statements of earnings, of shareholder's equity and of cash
flows for such fiscal quarter, setting forth in comparative
form consolidated and consolidating figures for the
corresponding period of the preceding fiscal year, all such
financial information described above to be in reasonable
form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of
the chief financial officer of the Borrower to the effect
that such quarterly financial statements fairly present in
all material respects the financial condition of the Credit
Parties and their Subsidiaries and have been prepared in
accordance with GAAP (subject to changes resulting from
audit and normal year-end audit adjustments and the absence
of footnotes); provided, that delivery within the time
period specified above of the copies of the Borrower's
Quarterly Report on Form 10-Q prepared in compliance with
the requirements therefor and filed with the Securities and
Exchange Commission shall be deemed to satisfy the
requirements of this Section 7.1(b).
(c) Officer's Certificate. At the time of delivery of
the financial statements provided for in Sections 7.1(a) and
7.1(b) above, a certificate of the chief financial officer
of the Borrower substantially in the form of Exhibit 7.1(c),
(i) demonstrating compliance with the financial covenants
contained in Section 7.2 by calculation thereof as of the
end of each such period, (ii) demonstrating compliance with
any other terms of this Credit Agreement as reasonably
requested by the Administrative Agent and (iii) stating that
no Default or Event of Default exists, or if any Default or
Event of Default does exist, specifying the nature and
extent thereof and what action the Borrower proposes to take
with respect thereto.
(d) Annual Business Plan and Budgets. At least 30
days prior to the end of each fiscal year of the Borrower
(or prior to the Closing Date in the case of the fiscal year
ending December 29, 1999), beginning with the fiscal year
ending December 29, 1999, a projected profit and loss
statement of the Credit Parties and their Subsidiaries on a
consolidated basis for the next fiscal year.
(e) Accountant's Certificate. Within the period for
delivery of the annual financial statements provided in
Section 7.1(a), a certificate of the accountants conducting
the annual audit stating that they have reviewed this Credit
Agreement and stating further whether, in the course of
their audit, they have become aware of any Default or Event
of Default and, if any such Default or Event of Default
exists, specifying the nature and extent thereof.
(f) Auditor's Reports. Promptly upon receipt thereof,
a copy of any other report or "management letter" submitted
by independent accountants to the Borrower in connection
with any annual, interim or special audit of the books of
such Person.
(g) Reports. Promptly upon transmission or receipt
thereof, (a) copies of any filings and registrations with,
and reports to or from, the Securities and Exchange
Commission, or any successor agency, and copies of all
financial statements, proxy statements, notices and reports
as the Credit Parties and their Subsidiaries shall send to
its shareholders generally in their capacity as shareholders
and (b) upon the written request of the Administrative
Agent, all reports and written information to and from the
United States Environmental Protection Agency, or any state
or local agency responsible for environmental matters, the
United States Occupational Health and Safety Administration,
or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities
concerning material environmental, health or safety matters.
(h) Notices. Upon a Responsible Officer of a Credit
Party obtaining knowledge thereof, the Borrower will give
written notice to the Administrative Agent immediately of
(i) the occurrence of an event or condition consisting of a
Default or Event of Default, specifying the nature and
existence thereof and what action the Credit Parties propose
to take with respect thereto, and (ii) the occurrence of any
of the following with respect to the Credit Parties or any
of their Subsidiaries: (A) the pendency or commencement of
any litigation, arbitral or governmental proceeding against
a Credit Party or any of its Subsidiaries which if adversely
determined would have or be reasonably expected to have a
Material Adverse Effect, (B) the institution of any
proceedings against a Credit Party or any of its
Subsidiaries with respect to, or the receipt of written
notice by such Person of potential liability or
responsibility for violation, or alleged violation of any
federal, state or local law, rule or regulation (including
but not limited to, Environmental Laws) the violation of
which would have or be reasonably expected to have a
Material Adverse Effect, (C) any information that a Credit
Party may have a Year 2000 Problem and (D) any loss of or
damage to any Property of a Credit Party or its Subsidiaries
or the commencement of any proceeding for the condemnation
or other taking of any Property of a Credit Party or its
Subsidiaries, if such loss, damage or proceeding would have
or be reasonably expected to have a Material Adverse Effect.
(i) ERISA. Upon any of the Credit Parties or any of
their Subsidiaries or any ERISA Affiliate obtaining
knowledge thereof, the Borrower will give written notice to
the Administrative Agent promptly (and in any event within
five Business Days) of: (i) any event or condition,
including, but not limited to, any Reportable Event, that
constitutes, or is reasonably expected to result in, a
Termination Event; (ii) with respect to any Multiemployer
Plan, the receipt of notice as prescribed in ERISA or
otherwise of any withdrawal liability assessed against the
Credit Parties or any of their Subsidiaries or any of their
ERISA Affiliates, or of a determination that any
Multiemployer Plan is in reorganization or insolvent (both
within the meaning of Title IV of ERISA); (iii) the failure
to make full payment on or before the due date (including
extensions) thereof of all amounts which a Credit Party or
any of its Subsidiaries or any of its ERISA Affiliates is
required to contribute to each Plan pursuant to such Plan's
terms and as required to meet the minimum funding standard
set forth in Section 302 of ERISA and Section 412 of the
Code with respect thereto; or (iv) any change in the funding
status of any Plan that would have or be reasonably expected
to have a Material Adverse Effect; together, with a
description of any such event or condition or a copy of any
such notice and a statement by the principal financial
officer of the Borrower briefly setting forth the details
regarding such event, condition, or notice, and the action,
if any, which has been or is being taken or is proposed to
be taken by the Credit Parties or any of their Subsidiaries
with respect thereto. Promptly upon request, the Credit
Parties or any of their Subsidiaries shall furnish the
Administrative Agent and each of the Lenders with such
additional information concerning any Plan as may be
reasonably requested by the Administrative Agent, including,
but not limited to, copies of each annual report/return
(Form 5500 series), as well as all schedules and attachments
thereto required to be filed with the Department of Labor
and/or the Internal Revenue Service pursuant to ERISA and
the Code, respectively, for each "plan year" (within the
meaning of Section 3(39) of ERISA).
(j) Environmental.
(i) Subsequent to a notice from any
Governmental Authority where the subject matter of such
notice would have or be reasonably expected to have a
Material Adverse Effect, or during the existence of an
Event of Default, upon the written request of
Administrative Agent, the Credit Parties will furnish
or cause to be furnished to the Administrative Agent,
at the Credit Parties' expense, a report of an
environmental assessment of reasonable scope, form and
depth, including, where appropriate, invasive soil or
groundwater sampling, by a consultant reasonably
acceptable to the Administrative Agent addressing the
subject of such notice or, if during the existence of
an Event of Default, regarding any release or threat of
release of Hazardous Materials on any Real Property and
the compliance by the Credit Parties with Environmental
Laws. If the Credit Parties fail to deliver such an
environmental report within sixty (60) days after
receipt of such written request, then the
Administrative Agent may arrange for same, and the
Credit Parties hereby grant to the Administrative Agent
and its representatives access to the Real Properties
and a license of a scope reasonably necessary to
undertake such an assessment (including, where
appropriate, invasive soil or groundwater sampling).
The reasonable cost of any assessment arranged for by
the Administrative Agent pursuant to this provision
will be payable by the Credit Parties on demand and
added to the obligations secured by the Collateral
Documents.
(ii) Each Credit Party will conduct and
complete all investigations, studies, sampling, and
testing and all remedial, removal, and other actions
required under the Environmental Laws to address all
Hazardous Materials on, from, or affecting any Real
Property to the extent necessary to be in compliance
with all Environmental Laws and all other applicable
federal, state and local laws, regulations, rules and
policies and with the orders and directives of all
Governmental Authorities exercising jurisdiction over
such real property to the extent any failure would have
or be reasonably expected to have a Material Adverse
Effect.
(k) Amendments to Note Purchase Agreements. Promptly
upon receipt thereof, a copy of any amendments,
modifications or supplements to any agreement or instrument
evidencing any obligation of the Borrower under the Note
Purchase Agreements or any agreement or instrument related
thereto.
(l) Notices provided to Noteholders. At the time of
delivery to the Noteholders pursuant to the Note Purchase
Agreements, copies of any notice provided to the Noteholders
(including without limitation any notice required pursuant
to Section 8.3 of the Note Purchase Agreements) pursuant to
the Note Purchase Agreements, to the extent any such notice
has not already been delivered to the Lenders pursuant to
the terms hereof.
(m) Other Information. With reasonable promptness
upon any such request, such other information regarding the
business, properties or financial condition of the Credit
Parties and their Subsidiaries as the Administrative Agent
may reasonably request.
7.2 Financial Covenants.
(a) Leverage Ratio. The Leverage Ratio, as of the
last day of each fiscal quarter of the Borrower, shall be
less than or equal to 2.50 to 1.00.
(b) Fixed Charge Coverage Ratio. The Fixed Charge
Coverage Ratio, as of the last day of each fiscal quarter of
the Borrower, shall be greater than or equal to 2.25 to
1.00.
(c) Minimum Consolidated Net Worth. The Consolidated
Net Worth shall at all times be equal to or greater than
$213,000,000 increased on a cumulative basis as of the end
of each fiscal quarter of the Credit Parties, commencing
with the fiscal quarter ending September 29, 1999 by an
amount equal to 50% of the Net Income (with no deduction for
net losses) for the fiscal quarter then ended plus an amount
equal to 100% of the proceeds from any Equity Issuance.
7.3 Preservation of Existence and Franchises.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, do all things necessary to preserve and keep in
full force and effect its existence, rights, franchises and
authority except as permitted by Section 8.4.
7.4 Books and Records.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, keep complete and accurate books and records of
its transactions in accordance with GAAP (including the
establishment and maintenance of appropriate reserves).
7.5 Compliance with Law.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and
orders, and all applicable restrictions imposed by all
Governmental Authorities, applicable to it and its property
(including, without limitation, Environmental Laws), unless such
noncompliance would not have or be reasonably expected to have a
Material Adverse Effect.
7.6 Payment of Taxes, Claims and Other Indebtedness.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, pay, settle or discharge (a) all taxes,
assessments and governmental charges or levies imposed upon it,
or upon its income or profits, or upon any of its properties,
before they shall become delinquent, (b) all lawful claims
(including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien upon any of its properties and
(c) except as prohibited hereunder, all of its other Indebtedness
as it shall become due; provided, however, that a Credit Party or
any of its Subsidiaries shall not be required to pay any such
tax, assessment, charge, levy, claim or Indebtedness which is
being contested in good faith by appropriate proceedings and as
to which adequate reserves therefor have been established in
accordance with GAAP, unless the failure to make any such payment
(i) would give rise to an immediate right to foreclose or collect
on a Lien securing such amounts or (ii) would have or be
reasonably expected to have a Material Adverse Effect.
7.7 Insurance.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect
insurance (including worker's compensation insurance, liability
insurance, casualty insurance and business interruption
insurance) from insurance companies acceptable to the
Administrative Agent, in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance
retentions as are in accordance with normal industry practice.
7.8 Maintenance of Property.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, maintain and preserve its properties and
equipment in good repair, working order and condition, normal
wear and tear excepted (subject to casualty events), and will
make, or cause to be made, in such properties and equipment from
time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed
or proper, to the extent and in the manner customary for
companies in similar businesses.
7.9 Collateral.
(a) If, subsequent to the Closing Date, a Credit Party
shall acquire any Capital Stock required to be delivered to
the Collateral Agent as Collateral hereunder or under any of
the Collateral Documents, the Borrower shall immediately
notify the Collateral Agent of same.
(b) Each Credit Party shall (within 30 days of such
request) take such action, as reasonably requested by the
Collateral Agent and at its own expense, to ensure that the
Secured Parties have a perfected Lien in all Collateral of
the Credit Parties as set forth in the Pledge Agreement
(whether now owned or hereafter acquired), subject only to
Permitted Liens. Such actions to be required by the
Collateral Agent may include, but are not limited to,
delivery of Capital Stock, stock powers or other appropriate
assignments in blank, UCC financing statements and legal
opinions with respect thereto which shall be satisfactory to
the Collateral Agent and the Required Holders.
7.10 Use of Proceeds.
The Credit Parties will use the proceeds of the Loans solely
(a) to refinance the existing Indebtedness of the Credit Parties,
(b) to make Capital Expenditures, (c) to provide working capital
for the Borrower and its Domestic Subsidiaries and (d) for
general corporate purposes of the Credit Parties (including,
without limitation, the repurchase of Capital Stock of the
Borrower pursuant to the Share Repurchase Program). The Credit
Parties will use the Letters of Credit solely for the purposes
set forth in Section 2.2(a).
7.11 Performance of Obligations.
Each of the Credit Parties will, and will cause its
Subsidiaries to, perform in all respects all of its obligations
under the terms of all agreements, indentures, mortgages,
security agreements or other debt instruments to which it is a
party or by which it is bound unless the failure to do so would
not have or be reasonably expected to have a Material Adverse
Effect.
7.12 Additional Credit Parties.
At the time any Person becomes a Subsidiary of a Credit
Party, the Borrower shall so notify the Administrative Agent and
promptly thereafter (but in any event within 30 days after the
date thereof) shall cause such Person to (a) if it is a Domestic
Subsidiary, execute a Joinder Agreement in substantially the same
form as Exhibit 7.12(a), (b) cause all of the Capital Stock of
such Person (if it is a Domestic Subsidiary) or 65% of the
Capital Stock of such Person (if it is a First Tier Foreign
Subsidiary) to be delivered to the Collateral Agent (together
with undated stock powers signed in blank) and pledged to the
Collateral Agent pursuant to a joinder to the existing Pledge
Agreement in substantially the same form as Exhibit 7.12(b), (c)
if such Person is a Domestic Subsidiary and has any Subsidiaries,
(A) deliver all of the Capital Stock of such Domestic
Subsidiaries owned by it and 65% of the stock of the First Tier
Foreign Subsidiaries owned by it (together with undated stock
powers signed in blank) to the Collateral Agent and (B) execute a
joinder to the existing Pledge Agreement in substantially the
same form as Exhibit 7.12(b), (d) deliver such other
documentation as the Collateral Agent may reasonably request in
connection with the foregoing, including, without limitation,
appropriate UCC-1 financing statements, certified resolutions and
other organizational and authorizing documents of such Person and
favorable opinions of counsel to such Person (which shall cover,
among other things, the legality, validity, binding effect and
enforceability of the documentation referred to above), all in
form, content and scope reasonably satisfactory to the Collateral
Agent and the Required Holders and (e) provide (i) to the
Administrative Agent a new Schedule 6.15 which shall reflect the
information regarding such new Subsidiary required by Section
6.15 and (ii) to the Collateral Agent, if applicable, a new
Schedule 2(a) to the appropriate Pledge Agreement which shall
reflect the pledge of the Capital Stock of such new Subsidiary.
7.13 Audits/Inspections.
Upon reasonable notice and during normal business hours,
each Credit Party will, and will permit each of its Subsidiaries
to, permit representatives appointed by the Administrative Agent,
including, without limitation, independent accountants, agents,
attorneys, and appraisers to visit and inspect its property,
including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to
make photocopies or photographs thereof and to write down and
record any information such representative obtains and shall
permit the Administrative Agent or its representatives to
investigate and verify the accuracy of information provided to
the Lenders and to discuss all such matters with the officers,
employees and representatives of such Person.
7.14 Year 2000 Compliance.
The Credit Parties will promptly notify the Administrative
Agent in the event any Credit Party discovers or determines that
any computer application (including those of its suppliers,
vendors and customers) that is material to its or any of its
Subsidiaries' business and operations will not be Year 2000
Compliant, except to the extent that such failure could not
reasonably be expected to have a Material Adverse Effect.
SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long
as this Credit Agreement is in effect and until the Loans and LOC
Obligations, together with interest, fees and other obligations
then due and payable hereunder have been paid in full and the
Commitments and Letters of Credit hereunder shall have
terminated:
8.1 Indebtedness.
No Credit Party will, nor will it permit any of its
Subsidiaries to, contract, create, incur, assume or permit to
exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement
and the other Credit Documents;
(b) Indebtedness existing as of the Closing Date as
referenced in Section 6.10 (and renewals, refinancings,
replacements or extensions thereof on terms and conditions
no more favorable, in the aggregate, to such creditor than
such existing Indebtedness and in a principal amount not in
excess of that outstanding as of the date of such renewal,
refinancing, replacement or extension);
(c) purchase money Indebtedness (including obligations
in respect of Capital Leases and Synthetic Leases) to
finance the purchase of fixed assets (including equipment);
provided that (i) the total of all such Indebtedness for all
such Persons taken together shall not exceed an aggregate
principal amount of $10,000,000 at any one time outstanding
(in addition to any such Indebtedness referred to in
subsection (b) above); (ii) such Indebtedness when incurred
shall not exceed the purchase price of the asset(s)
financed; and (iii) no such Indebtedness shall be refinanced
for a principal amount in excess of the principal balance
outstanding thereon at the time of such refinancing;
(d) Indebtedness arising from Hedging Agreements
entered into in the ordinary course of business and not for
speculative purposes;
(e) Indebtedness in respect of current accounts
payable and accrued expenses incurred in the ordinary course
of business and to the extent not current, accounts payable
and accrued expenses that are subject to bona fide dispute;
(f) (i) Indebtedness of the Borrower arising under the
Note Purchase Agreements and the Senior Notes (and renewals,
refinancings and extensions thereof on terms and conditions
no less favorable to the Borrower than such existing
Indebtedness evidenced by the Note Purchase Agreements and
the Senior Notes) in an aggregate principal amount not to
exceed $75,000,000 at any one time and (ii) all Guaranty
Obligations of the Guarantors with respect to such
Indebtedness arising under the Note Purchase Agreements and
the Senior Notes;
(g) Indebtedness owing from one Credit Party to
another Credit Party; and
(h) Guaranty Obligations of the Borrower arising from
the Borrower's guarantee of loans taken out by participants
in the Operating Partner's Program the proceeds of which are
used to purchase Capital Stock of the Borrower pursuant to
the Operating Partners Program, provided that such Guaranty
Obligations of the Borrower shall at no time exceed
$5,000,000 in the aggregate during the term of this Credit
Agreement.
8.2 Liens.
No Credit Party will, nor will it permit its Subsidiaries
to, contract, create, incur, assume or permit to exist any Lien
with respect to any of its property or assets of any kind
(whether real or personal, tangible or intangible), whether now
owned or after acquired, except for Permitted Liens.
8.3 Nature of Business.
No Credit Party will, nor will it permit its Subsidiaries
to, alter the character of its business from that conducted as of
the Effective Date or engage in any business other than the
business conducted as of the Effective Date.
8.4 Consolidation and Merger.
No Credit Party will, nor will it permit its Subsidiaries
to, enter into any transaction of merger or consolidation or
liquidate, wind up or dissolve itself (or suffer any liquidation
or dissolution); provided that notwithstanding the foregoing
provisions of this Section 8.4, (i) any Credit Party may be
merged or consolidated with or into another Credit Party if (a)
the Administrative Agent is given prior written notice of such
action and the Credit Parties execute and deliver such documents,
instruments, certificates and opinions as the Administrative
Agent may request, including, without limitation, those necessary
in order to maintain the perfection and priority of the Liens on
the Collateral and (b) after giving effect thereto no Default or
Event of Default exists; provided, that if the transaction is
between the Borrower and another Credit Party the Borrower must
be the continuing or surviving entity and (ii) any Immaterial
Subsidiary of the Borrower may liquidate, wind up or dissolve
itself.
8.5 Sale or Lease of Assets.
No Credit Party will, nor will it permit its Subsidiaries
to, convey, sell, lease, transfer or otherwise dispose of, in one
transaction or a series of transactions, all or any part of its
business or assets whether now owned or hereafter acquired,
including, without limitation, inventory, receivables, equipment,
real property interests (whether owned or leasehold), and
securities, other than:
(a) any inventory sold or otherwise disposed of in the
ordinary course of business;
(b) the sale, lease or transfer by a Credit Party of
any or all of its assets to another Credit Party so long as
the Non-Operating Subsidiaries (after giving effect to such
sale, lease or transfer) shall not own, on a collective
basis, property, plant and equipment valued at more than
five percent (5%) of the consolidated assets of the Borrower
and its Subsidiaries on a consolidated basis;
(c) obsolete, slow-moving, idle or worn-out assets no
longer used or useful in its business or the trade in of
equipment for equipment in better condition or of better
quality;
(d) the sale of the real property and of the stores
and personal property associated therewith identified on
Schedule 8.5(d); and
(e) the sale of up to seven (7) stores in any fiscal
year provided that (i) no Default or Event of Default
exists before or after giving effect to any such sale, (ii)
each such store is sold pursuant to the terms and conditions
of an arms-length contract for fair market value and (iii)
to the extent such dispositions permitted under this
subclause (e) exceed $40,000,000 in the aggregate during the
term of this Credit Agreement, the Revolving Committed
Amount shall be immediately reduced by the amount by which
such dispositions permitted by this subclause (e) exceed
$40,000,000 in the aggregate during the term of this Credit
Agreement.
8.6 Sale Leasebacks.
The Credit Parties hereby agree that to the extent the
Credit Parties or any of their Subsidiaries directly or
indirectly become or remain liable as lessee or as guarantor or
other surety with respect to any lease of any property (whether
real or personal or mixed), whether now owned or hereafter
acquired, (a) which such Credit Party or its Subsidiary has sold
or transferred or is to sell or transfer to any other Person
other than a Credit Party or (b) which such Credit Party or its
Subsidiary intends to use for substantially the same purpose as
any other property which has been sold or is to be sold or
transferred by such Credit Party to any Person in connection with
such lease in an amount exceeding $5,000,000 in the aggregate
during any fiscal year, the Revolving Committed Amount shall be
immediately reduced by the amount by which such sale leaseback
transactions in any fiscal year exceed $5,000,000 in the
aggregate during such fiscal year.
8.7 Investments.
No Credit Party will, nor will it permit its Subsidiaries
to, make any Investments except for Permitted Investments.
8.8 Restricted Payments.
No Credit Party will, nor will it permit its Subsidiaries
to, directly or indirectly, (a) declare or pay any dividends or
make any other distribution upon any shares of its Capital Stock
of any class (other than dividends payable solely in Capital
Stock); provided that, any Subsidiary of the Borrower may pay
dividends to its parent or (b) purchase, redeem, make a sinking
fund or similar payment or otherwise acquire or retire or make
any provisions for redemption, acquisition or retirement of any
shares of its Capital Stock of any class or any warrants or
options to purchase any such shares; provided, that, prior to the
date occurring three years from the Effective Date, the Borrower
may repurchase shares of its Capital Stock pursuant to the Share
Repurchase Program in an amount not to exceed during the term of
this Credit Agreement an aggregate amount equal to the sum of (i)
$55 million plus (ii) an amount equal to 50% of Net Income for
each fiscal quarter after September 29, 1999 so long as at the
time of such repurchase and after giving effect thereto, no
Default or Event of Default shall exist or be continuing.
8.9 Transactions with Affiliates.
No Credit Party will, nor will it permit its Subsidiaries
to, enter into any transaction or series of transactions, whether
or not in the ordinary course of business, with any officer,
director, shareholder, Subsidiary or Affiliate other than (a) any
transaction between one Credit Party and another Credit Party,
(b) without limiting subclause (a) of this Section 8.9,
intercompany transactions expressly permitted by Section 8.1,
Section 8.4, Section 8.5, or Section 8.7 and (c) other
transactions which are entered into on terms and conditions
substantially as favorable as would be obtainable in a comparable
arm's-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.10 Fiscal Year; Organizational Documents.
No Credit Party will, nor will it permit its Subsidiaries
to, (a) change its fiscal year or (b) in any manner that would
reasonably be likely to materially adversely affect the rights of
the Lenders, change its articles or certificate of incorporation,
operating agreement, articles of organization or its bylaws.
8.11 No Limitations.
No Credit Party will, nor will it permit its Subsidiaries
to, directly or indirectly, create or otherwise cause, incur,
assume, suffer or permit to exist or become effective any
consensual encumbrance or restriction of any kind on the ability
of any such Person to (a) pay dividends or make any other
distribution on any of such Person's Capital Stock, (b) pay any
Indebtedness owed to any other Credit Party, (c) make loans or
advances to any other Credit Party, (d) sell, lease or transfer
any of its properties or assets to any other Credit Party or (e)
act as a Credit Party and pledge its Collateral pursuant to the
Credit Documents or any renewals, refinancings, exchanges,
refundings or extensions thereof, except (in respect of any of
the matters referred to in subsections (a)-(d) above) for
encumbrances or restrictions existing under or by reason of (i)
applicable law, (ii) this Credit Agreement and the other Credit
Documents, (iii) the Note Purchase Agreements as in effect on the
Closing Date or as amended in accordance with Section 8.15, and
(iv) customary non-assignment or net worth provisions in any
lease governing a leasehold interest.
8.12 No Other Negative Pledges.
No Credit Party will, nor will it permit its Subsidiaries
to, enter into, assume or become subject to any agreement
prohibiting or otherwise restricting the creation or assumption
of any Lien upon its properties or assets, whether now owned or
hereafter acquired, or requiring the grant of any security for
such obligation if security is given for some other obligation
except (a) as set forth in the Credit Documents, (b) agreements
entered into in connection with Indebtedness permitted by Section
8.1(c) so long as such agreements do not prohibit Liens in favor
of the Lenders and the restrictions contained in such agreements
relate only to the asset or assets acquired or constructed in
connection therewith and (c) as set forth in Section 10.7 of the
Note Purchase Agreement.
8.13 Capital Expenditures.
The Credit Parties will not permit Capital Expenditures (a)
from the Effective Date through December 29, 1999 to exceed
$20,000,000 in the aggregate, (b) for the fiscal year ending
January 3, 2001 to exceed $64,000,000 in the aggregate, (c) for
the fiscal year ending January 2, 2002 to exceed $65,000,000 in
the aggregate, (d) for the fiscal year ending January 1, 2003 to
exceed $71,000,000 in the aggregate, (e) for the fiscal year
ending December 31, 2003 to exceed $73,000,000 in the aggregate
and (f) for the fiscal year ending December 29, 2004 to exceed
$81,000,000 in the aggregate; provided, however, that up to
$10,000,000 of the unused allowance for Capital Expenditures in
any fiscal year subsequent to fiscal year 1999, if not expended
in the fiscal year for which it is permitted, may be carried over
for expenditure in the immediate succeeding fiscal year;
provided, further, that up to $10,000,000 of the unused allowance
for the Borrower's repurchase of its Capital Stock pursuant to
the Share Repurchase Program as permitted by Section 8.8 may be
expended in any fiscal year (including fiscal year 1999) for
Capital Expenditures in addition to the amounts permitted above,
it being understood and agreed that (x) such $10,000,000 of the
unused allowance for the Share Repurchase Program shall continue
to be available for Capital Expenditures by the Credit Parties in
any fiscal year after the date occurring three years from the
Effective Date and (y) such allowance for the Share Repurchase
Program shall continue to grow for purposes of this Section 8.13
pursuant to the terms of Section 8.8 after the date occurring
three years from the Effective Date.
8.14 Ownership of Subsidiaries.
The Borrower shall at all times own, directly or indirectly,
100% of the Capital Stock of any Subsidiary of the Borrower;
provided, that another Subsidiary of the Borrower may own Capital
Stock in any Subsidiary of the Borrower.
8.15 Modification of Indebtedness.
Other than with respect to (i) Indebtedness arising under
this Credit Agreement and the other Credit Documents and (ii) any
Indebtedness owing from one Credit Party to another Credit Party,
no Credit Party will, nor will it permit any of its Subsidiaries
to, after the issuance thereof, amend or modify (or permit the
amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or
change any terms in a manner adverse to the issuer of such
Indebtedness, or shorten the final maturity or average life to
maturity or require any payment to be made sooner than originally
scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof; provided, that, the
Borrower may enter into an amendment or modification of the
Senior Note Purchase Agreements in a manner adverse to the
Borrower so long as the Borrower agrees to make amendments or
modifications to the Credit Documents in a manner consistent with
such amendments or modifications made to the Senior Note Purchase
Agreements.
8.16 Prepayment of Indebtedness.
Other than with respect to (i) Indebtedness arising under
this Credit Agreement and the other Credit Documents and (ii) any
Indebtedness owing from one Credit Party to another Credit Party,
no Credit Party will, nor will it permit any of its Subsidiaries
to, make (or give any notice with respect thereto) any voluntary
or optional payment or prepayment or redemption or acquisition
for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before
due for the purpose of paying when due), refund, refinance or
exchange of any Indebtedness except that (a) the Borrower may
make a voluntary or optional prepayment on the Senior Notes in
accordance with Section 8.2 of the Note Purchase Agreements;
provided that (I) the Borrower provides the Administrative Agent
with written notice of such prepayment five (5) Business Days
prior to the date of such prepayment and (II) the Revolving
Committed Amount is permanently reduced on a pro rata basis
according to the aggregate unpaid principal amount of the Senior
Notes and the amount of the Revolving Committed Amount on the
date of such prepayment in accordance with Section 3.4(b) and (b)
the Borrower may make a prepayment on the Senior Notes in
accordance with Section 8.3 of the Note Purchase Agreements;
provided that (I) the Borrower provides the Administrative Agent
with all notices related to such prepayment required by Section
7.1(l) and (II) the Loans are prepaid on a pro rata basis
according to the aggregate unpaid principal amount of the Senior
Notes and the aggregate unpaid principal amount of the Loans in
accordance with Section 3.3(b)(ii).
SECTION 9
EVENTS OF DEFAULT
9.1 Events of Default.
An Event of Default shall exist upon the occurrence, and
during the continuance, of any of the following specified events
(each an "Event of Default"):
(a) Payment. Any Credit Party shall default in the
payment (i) when due of any principal of any of the Loans or
any reimbursement obligation arising from drawings under
Letters of Credit or (ii) within three Business Days of when
due of any interest on the Loans or any fees or other
amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(b) Representations. Any representation, warranty or
statement made or deemed to be made by any Credit Party
herein, in any of the other Credit Documents, or in any
statement or certificate delivered or required to be
delivered pursuant hereto or thereto shall prove untrue in
any material respect on the date as of which it was made or
deemed to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or
observance of any term, covenant or agreement contained
in Sections 7.2, 7.3, 7.5, 7.10, 7.12 or 8.1 through
8.16 inclusive;
(ii) default in the due performance or
observance by it of any term, covenant or agreement
contained in Section 7.1 and such default shall
continue unremedied for a period of five Business Days;
(iii) default in the due performance or
observance by it of any term, covenant or agreement
(other than those referred to in subsections (a), (b)
or (c)(i) or (ii) of this Section 9.1) contained in
this Credit Agreement and such default shall continue
unremedied for a period of at least 30 days after the
earlier of a Credit Party becoming aware of such
default or notice thereof given by the Administrative
Agent.
(d) Other Credit Documents. (i) Any Credit Party
shall default in the due performance or observance of any
term, covenant or agreement in any of the other Credit
Documents and such default shall continue unremedied for a
period of at least 30 days after the earlier of a Credit
Party becoming aware of such default or notice thereof given
by the Administrative Agent, or (ii) other than because of
acts or failure to act by the Lenders, the Administrative
Agent or the Collateral Agent, any Credit Document shall
fail to be in full force and effect or any Credit Party
shall so assert or any Credit Document shall fail to give
the Collateral Agent and/or the Lenders the security
interests, liens, rights, powers and privileges purported to
be created thereby.
(e) Guaranties. The guaranty given by the Credit
Parties hereunder or by any Additional Credit Party
hereafter or any provision thereof shall cease to be in full
force and effect, or any guarantor thereunder or any Person
acting by or on behalf of such guarantor shall deny or
disaffirm such Guarantor's obligations under such guaranty.
(f) Bankruptcy, etc. The occurrence of any of the
following: (i) a court or governmental agency having
jurisdiction in the premises shall enter a decree or order
for relief in respect of any Credit Party or any of its
Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter
in effect, or appoint a receiver, liquidator, assignee,
custodian, trustee, sequestrator or similar official of any
Credit Party or any of its Subsidiaries or for any
substantial part of its property or ordering the winding up
or liquidation of its affairs; or (ii) an involuntary case
under any applicable bankruptcy, insolvency or other similar
law now or hereafter in effect is commenced against any
Credit Party or any of its Subsidiaries and such petition
remains unstayed and in effect for a period of 60
consecutive days; or (iii) any Credit Party or any of its
Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now
or hereafter in effect, or consent to the entry of an order
for relief in an involuntary case under any such law, or
consent to the appointment or taking possession by a
receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of such Person or any
substantial part of its property or make any general
assignment for the benefit of creditors; or (iv) any Credit
Party or any of its Subsidiaries shall admit in writing its
inability to pay its debts generally as they become due or
any action shall be taken by such Person in furtherance of
any of the aforesaid purposes.
(g) Defaults under Other Agreements.
(i) A Credit Party or any of its Subsidiaries
shall default in the due performance or observance
(beyond the applicable grace period with respect
thereto) of any material obligation or condition of any
contract or lease to which it is a party (including,
without limitation, any Hedging Agreement, but
excluding the Credit Documents), if such default would
have or be reasonably expected to have a Material
Adverse Effect; or
(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement)
of a Credit Party or any of its Subsidiaries in an
aggregate principal amount in excess of $1,000,000, (A)
such Person shall (x) default in any payment (beyond
the applicable grace period with respect thereto, if
any) with respect to any such Indebtedness, or (y)
default (after giving effect to any applicable grace
period) in the observance or performance relating to
such Indebtedness or contained in any instrument or
agreement evidencing, securing or relating thereto, or
any other event or condition shall occur or condition
exist, the effect of which default or other event or
condition is to cause or permit the holder or holders
of such Indebtedness (or trustee or agent on behalf of
such holders) to cause (determined without regard to
whether any notice or lapse of time is required) any
such Indebtedness to become due prior to its stated
maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid
other than by a regularly scheduled required prepayment
prior to the stated maturity thereof; or (C) any such
Indebtedness shall mature and remain unpaid.
(h) Judgments. One or more judgments, orders, or
decrees (including, without limitation, any judgment, order,
or decree with respect to any litigation disclosed pursuant
to the Credit Documents) shall be entered against any one or
more of the Credit Parties and its Subsidiaries involving a
liability of $1,000,000 or more, in the aggregate, (to the
extent not paid or covered by insurance provided by a
carrier who has acknowledged coverage) and such judgments,
orders or decrees (i) are the subject of any enforcement
proceeding commenced by any creditor, (ii) shall continue
unsatisfied, undischarged and unstayed for a period ending
on the first to occur of (A) the last day on which such
judgment, order or decree becomes final and unappealable or
(B) 60 days, or (iii) are stayed and are not discharged
within 60 days after the expiration of such stay.
(i) ERISA. The occurrence of any of the following
events or conditions which would have or be reasonably
expected to have a Material Adverse Effect: (A) any
"accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or
not waived, shall exist with respect to any Plan, or any
Lien shall arise on the assets of any Credit Party or any
ERISA Affiliate in favor of the PBGC or a Plan; (B) a
Termination Event shall occur with respect to a Single
Employer Plan, which is likely to result in the termination
of such Plan for purposes of Title IV of ERISA; (C) a
Termination Event shall occur with respect to a
Multiemployer Plan or Multiple Employer Plan, which is
likely to result in (i) the termination of such Plan for
purposes of Title IV of ERISA, or (ii) any Credit Party or
any ERISA Affiliate incurring any liability in connection
with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency (within the
meaning of Section 4245 of ERISA) of such Plan; or (D) any
prohibited transaction (within the meaning of Section 406 of
ERISA or Section 4975 of the Code) or breach of fiduciary
responsibility shall occur which may subject any Credit
Party or any ERISA Affiliate to any liability under Sections
406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to
which any Credit Party or any ERISA Affiliate has agreed or
is required to indemnify any person against any such
liability.
(j) Ownership. There shall occur a Change of Control.
(k) Note Purchase Agreements. There shall occur a
default or an event of default under (i) any of the Note
Purchase Agreements, (ii) the Senior Notes or (iii) any
other related agreement, document, or instrument issued or
delivered in connection with any of the Note Purchase
Agreements.
9.2 Acceleration; Remedies.
Upon the occurrence and during the continuance of an Event
of Default and at any time thereafter unless and until such Event
of Default has been waived in writing by the Required Lenders (or
the Lenders as may be required hereunder), the Administrative
Agent shall, upon the request and direction of the Required
Lenders, by written notice to the Borrower, take the following
actions without prejudice to the rights of the Agents or any
Lender to enforce its claims against the Credit Parties, except
as otherwise specifically provided for herein:
(a) Termination of Commitments. Declare the
Commitments terminated whereupon the Commitments shall be
immediately terminated.
(b) Acceleration of Loans. Declare the unpaid
principal of and any accrued interest in respect of all
Loans, any reimbursement obligations arising from drawings
under Letters of Credit and any and all other indebtedness
or obligations of any and every kind owing by a Credit Party
to any of the Lenders hereunder to be due whereupon the same
shall be immediately due and payable without presentment,
demand, protest or other notice of any kind, all of which
are hereby waived by the Credit Parties.
(c) Cash Collateral. Direct the Borrower to pay (and
the Borrower agrees that upon receipt of such notice or upon
the occurrence of an Event of Default under Section 9.1(f),
it will immediately pay) to the Administrative Agent
additional cash to be held by the Administrative Agent, for
the benefit of the Lenders, in a cash collateral account as
additional security for the LOC Obligations in respect of
subsequent drawings under all then outstanding Letters of
Credit in an amount equal to the maximum aggregate amount
which may be drawn under all Letters of Credits then
outstanding.
(d) Enforcement of Rights. Enforce any and all rights
and interests created and existing under the Credit
Documents, including, without limitation, all rights and
remedies existing under the Collateral Documents, all rights
and remedies against a Guarantor and all rights of set-off.
Notwithstanding the foregoing, if an Event of Default specified
in Section 9.1(f) shall occur, then the Commitments shall
automatically terminate and all Loans, all reimbursement
obligations under Letters of Credit, all accrued interest in
respect thereof, all cash necessary to collateralize the LOC
Obligations pursuant to Section 9.2(c), all accrued and unpaid
fees and other indebtedness or obligations owing to the Lenders
hereunder shall immediately become due and payable without the
giving of any notice or other action by the Agents or the
Lenders, which notice or other action is expressly waived by the
Credit Parties.
Notwithstanding the fact that enforcement powers reside primarily
with the Administrative Agent, each Lender has, to the extent
permitted by law, a separate right of payment and shall be
considered a separate "creditor" holding a separate "claim"
within the meaning of Section 101(5) of the Bankruptcy Code or
any other insolvency statute.
9.3 Allocation of Payments After Event of Default.
Notwithstanding any other provisions of this Credit
Agreement, after the occurrence and during the continuance of an
Event of Default, all amounts collected or received by an Agent
or any Lender on account of amounts outstanding under any of the
Credit Documents or in respect of the Collateral shall be paid
over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket
costs and expenses (including without limitation reasonable
attorneys' fees) of the Agents or any of the Lenders in
connection with enforcing the rights of the Lenders under
the Credit Documents and any protective advances made by any
Agent or any of the Lenders with respect to the Collateral
under or pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Agents, the
Issuing Lender or any Lender;
THIRD, to the payment of all accrued interest payable
to the Lenders hereunder and all other obligations (other
than those obligations to be paid pursuant to clause
"FOURTH" below) which shall have become due and payable
under the Credit Documents and not repaid pursuant to
clauses "FIRST" and "SECOND" above;
FOURTH, to the payment of the outstanding principal
amount of the Loans and unreimbursed drawings under Letters
of Credit, to the payment or cash collateralization of the
outstanding LOC Obligations and to any principal amounts
outstanding under Hedging Agreements between a Credit Party
and a Lender, pro rata as set forth below; and
FIFTH, the payment of the surplus, if any, to whoever
may be lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be
applied in the numerical order provided until exhausted prior to
application to the next succeeding category; (b) each of the
Lenders shall receive an amount equal to its pro rata share
(based on the proportion that the then outstanding Loans, LOC
Obligations and obligations under Hedging Agreements held by such
Lender bears to the aggregate then outstanding Loans, LOC
Obligations and obligations under Hedging Agreements) of amounts
available to be applied; and (c) to the extent that any amounts
available for distribution pursuant to clause "FOURTH" above are
attributable to the issued but undrawn amount of outstanding
Letters of Credit, such amounts shall be held by the
Administrative Agent in a cash collateral account and applied (x)
first, to reimburse the Issuing Lender from time to time for any
drawings under such Letters of Credit and (y) then, following the
expiration of all Letters of Credit, to all other obligations of
the types described in clause "FOURTH" above in the manner
provided in this Section 9.3.
SECTION 10
AGENCY PROVISIONS
10.1 Appointment.
(a) Each Lender hereby designates and appoints Bank of
America, N.A. as Administrative Agent and Collateral Agent
of such Lender to act as specified herein and the other
Credit Documents, and each such Lender hereby authorizes the
Agents, as the agents for such Lender, to take such action
on its behalf under the provisions of this Credit Agreement
and the other Credit Documents and to exercise such powers
and perform such duties as are expressly delegated by the
terms hereof and of the other Credit Documents, together
with such other powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary elsewhere
herein and in the other Credit Documents, the Agents shall
not have any duties or responsibilities, except those
expressly set forth herein and therein, or any fiduciary
relationship with any Lender, and no implied covenants,
functions, responsibilities, duties, obligations or
liabilities shall be read into this Credit Agreement or any
of the other Credit Documents, or shall otherwise exist
against the Agents. The provisions of this Section are
solely for the benefit of the Agents and the Lenders and
none of the Credit Parties shall have any rights as a third
party beneficiary of the provisions hereof. In performing
its functions and duties under this Credit Agreement and the
other Credit Documents, each Agent shall act solely as an
agent of the Lenders and does not assume and shall not be
deemed to have assumed any obligation or relationship of
agency or trust with or for any Credit Party.
(b) Each Lender hereby consents to and approves the
terms of the Intercreditor Agreement, a copy of which is
attached hereto as Schedule 10.1(b). By execution hereof,
the Lenders acknowledge the terms of the Intercreditor
Agreement and agree to be bound by the terms thereof and
further authorize and direct the Administrative Agent to
enter into the Intercreditor Agreement on behalf of all the
Lenders.
10.2 Delegation of Duties.
Each Agent may execute any of its duties hereunder or under
the other Credit Documents by or through agents or attorneys-in-
fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. An Agent shall not be
responsible for the negligence or misconduct of any agents or
attorneys-in-fact selected by it with reasonable care.
10.3 Exculpatory Provisions.
Neither the Agents nor any of their officers, directors,
employees, agents, attorneys-in-fact or affiliates shall be
liable for any action lawfully taken or omitted to be taken by it
or such Person under or in connection herewith or in connection
with any of the other Credit Documents (except for its or such
Person's own gross negligence or willful misconduct) or
responsible in any manner to any of the Lenders for any recitals,
statements, representations or warranties made by any of the
Credit Parties contained herein or in any of the other Credit
Documents or in any certificate, report, document, financial
statement or other written or oral statement referred to or
provided for in, or received by an Agent under or in connection
herewith or in connection with the other Credit Documents, or
enforceability or sufficiency therefor of any of the other Credit
Documents, or for any failure of the Borrower to perform its
obligations hereunder or thereunder. The Agents shall not be
responsible to any Lender for the effectiveness, genuineness,
validity, enforceability, collectibility or sufficiency of this
Credit Agreement, or any of the other Credit Documents or for any
representations, warranties, recitals or statements made herein
or therein or made by a Borrower or any Credit Party in any
written or oral statement or in any financial or other
statements, instruments, reports, certificates or any other
documents in connection herewith or therewith furnished or made
by an Agent to the Lenders or by or on behalf of the Credit
Parties to an Agent or any Lender or be required to ascertain or
inquire as to the performance or observance of any of the terms,
conditions, provisions, covenants or agreements contained herein
or therein or as to the use of the proceeds of the Loans or the
use of the Letters of Credit or of the existence or possible
existence of any Default or Event of Default or to inspect the
properties, books or records of the Credit Parties. The Agents
are not trustees for the Lenders and owe no fiduciary duty to the
Lenders.
10.4 Reliance on Communications.
Each of the Agents shall be entitled to rely, and shall be
fully protected in relying, upon any note, writing, resolution,
notice, consent, certificate, affidavit, letter, cablegram,
telegram, telecopy, telex or teletype message, statement, order
or other document or conversation reasonably believed by it to be
genuine and correct and to have been signed, sent or made by the
proper Person or Persons and upon advice and statements of legal
counsel (including, without limitation, counsel to any of the
Credit Parties, independent accountants and other experts
selected by such Agent with reasonable care). The Agents may
deem and treat the Lenders as the owner of its interests
hereunder for all purposes unless a written notice of assignment,
negotiation or transfer thereof shall have been filed with the
Administrative Agent in accordance with Section 11.3(b). Each of
the Agents shall be fully justified in failing or refusing to
take any action under this Credit Agreement or under any of the
other Credit Documents unless it shall first receive such advice
or concurrence of the Required Lenders as it deems appropriate or
it shall first be indemnified to its satisfaction by the Lenders
against any and all liability and expense which may be incurred
by it by reason of taking or continuing to take any such action.
The Agents shall in all cases be fully protected in acting, or in
refraining from acting, hereunder or under any of the other
Credit Documents in accordance with a request of the Required
Lenders (or to the extent specifically provided in Section 11.6,
all the Lenders) and such request and any action taken or failure
to act pursuant thereto shall be binding upon all the Lenders
(including their successors and assigns).
10.5 Notice of Default.
An Agent shall not be deemed to have knowledge or notice of
the occurrence of any Default or Event of Default hereunder
unless such Agent has received notice from a Lender or a Credit
Party referring to the Credit Document, describing such Default
or Event of Default and stating that such notice is a "notice of
default." In the event that the Administrative Agent receives
such a notice, the Administrative Agent shall give prompt notice
thereof to the Lenders. The Administrative Agent shall take such
action with respect to such Default or Event of Default as shall
be reasonably directed by the Required Lenders and as is
permitted by the Credit Documents.
10.6 Non-Reliance on Agent and Other Lenders.
Each Lender expressly acknowledges that neither the Agents,
BAS nor any of their officers, directors, employees, agents,
attorneys-in-fact or affiliates has made any representations or
warranties to it and that no act by an Agent or any affiliate
thereof hereinafter taken, including any review of the affairs of
any Credit Party, shall be deemed to constitute any
representation or warranty by such Agent to any Lender. Each
Lender represents to the Agents and BAS that it has,
independently and without reliance upon the Agents or BAS or any
other Lender, and based on such documents and information as it
has deemed appropriate, made its own appraisal of and
investigation into the business, assets, operations, property,
financial and other conditions, prospects and creditworthiness of
the Credit Parties and made its own decision to make its Loans
hereunder and enter into this Credit Agreement. Each Lender also
represents that it will, independently and without reliance upon
the Agents or BAS or any other Lender, and based on such
documents and information as it shall deem appropriate at the
time, continue to make its own credit analysis, appraisals and
decisions in taking or not taking action under this Credit
Agreement, and to make such investigation as it deems necessary
to inform itself as to the business, assets, operations,
property, financial and other conditions, prospects and
creditworthiness of the Credit Parties. Except for notices,
reports and other documents expressly required to be furnished to
the Lenders by the Administrative Agent hereunder, the Agents and
BAS shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the
business, operations, assets, property, financial or other
conditions, prospects or creditworthiness of the Credit Parties
which may come into the possession of the Agents, BAS or any of
their officers, directors, employees, agents, attorneys-in-fact
or affiliates.
10.7 Indemnification.
The Lenders agree to indemnify each Agent in its capacity as
such (to the extent not reimbursed by the Borrower and without
limiting the obligation of the Borrower to do so), ratably
according to their respective Commitments (or if the Commitments
have expired or been terminated, in accordance with the
respective principal amounts of outstanding Loans and
Participation Interest of the Lenders), from and against any and
all liabilities, obligations, losses, damages, penalties,
actions, judgments, suits, costs, expenses or disbursements of
any kind whatsoever which may at any time (including without
limitation at any time following payment in full of the Credit
Party Obligations) be imposed on, incurred by or asserted against
such Agent in its capacity as agent in any way relating to or
arising out of this Credit Agreement or the other Credit
Documents or any documents contemplated by or referred to herein
or therein or the transactions contemplated hereby or thereby or
any action taken or omitted by such Agent under or in connection
with any of the foregoing; provided that no Lender shall be
liable for the payment of any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements resulting from the gross
negligence or willful misconduct of such Agent as determined by a
court of competent jurisdiction. If any indemnity furnished to
an Agent for any purpose shall, in the opinion of such Agent, be
insufficient or become impaired, such Agent may call for
additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
The agreements in this Section shall survive the payment of the
Credit Party Obligations and all other amounts payable hereunder
and under the other Credit Documents.
10.8 Agent in Its Individual Capacity.
Each Agent and its affiliates may make loans to, accept
deposits from and generally engage in any kind of business with
the Borrower or any other Credit Party as though such Agent were
not an Agent hereunder. With respect to the Loans made and
Letters of Credit issued and all obligations owing to it, each
Agent shall have the same rights and powers under this Credit
Agreement as any Lender and may exercise the same as though it
was not an Agent, and the terms "Lender" and "Lenders" shall
include each Agent in its individual capacity.
10.9 Successor Agent.
Any Agent may, at any time, resign upon 20 days written
notice to the Lenders. Upon any such resignation, the Required
Lenders shall have the right to appoint a successor Agent;
provided, however, that in the absence of any continuing Event of
Default, such appointment of a successor Agent shall be consented
to by the Borrower, which consent shall not be unreasonably
withheld. Upon the acceptance of any appointment as an Agent
hereunder by a successor, 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 as an
Agent, as appropriate, under this Credit Agreement and the other
Credit Documents and the provisions of this Section 10.9 shall
inure to its benefit as to any actions taken or omitted to be
taken by it while it was an Agent under this Credit Agreement.
If no successor Administrative Agent has accepted appointment as
Administrative Agent within sixty (60) days after the retiring
Administrative Agent's giving notice of resignation, the retiring
Administrative Agent's resignation shall nevertheless become
effective and the Lenders shall perform all duties of the
Administrative Agent hereunder until such time, if any, as the
Required Lenders appoint a successor Administrative Agent as
provided for above. Likewise, if no successor Collateral Agent
has accepted appointment as Collateral Agent within sixty (60)
days after the retiring Collateral Agent's giving notice of
resignation, the retiring Collateral Agent's resignation shall
nevertheless become effective and the Lenders shall perform all
duties of the Collateral Agent under the Collateral Documents
until such time, if any, as the Required Lenders appoint a
successor Collateral Agent as provided for above. Subject to the
foregoing terms of this Section 10.9, there shall at all times be
a Person or Persons serving as Administrative Agent and
Collateral Agent hereunder.
SECTION 11
MISCELLANEOUS
11.1 Notices.
Except as otherwise expressly provided herein, all notices
and other communications shall have been duly given and shall be
effective (a) when delivered, (b) when transmitted via telecopy
(or other facsimile device) to the number set out below, (c) the
Business Day following the day on which the same has been
delivered prepaid (or pursuant to an invoice arrangement) to a
reputable national overnight air courier service, or (d) the
third Business Day following the day on which the same is sent by
certified or registered mail, postage prepaid, in each case to
the respective parties at the address or telecopy numbers set
forth on Schedule 11.1, or at such other address as such party
may specify by written notice to the other parties hereto.
11.2 Right of Set-Off.
In addition to any rights now or hereafter granted under
applicable law or otherwise, and not by way of limitation of any
such rights, upon the occurrence of an Event of Default and the
commencement of remedies described in Section 9.2, each Lender is
authorized at any time and from time to time, without
presentment, demand, protest or other notice of any kind (all of
which rights being hereby expressly waived), to set-off and to
appropriate and apply any and all deposits (general or special)
and any other indebtedness at any time held or owing by such
Lender (including, without limitation, branches, agencies or
Affiliates of such Lender wherever located) to or for the credit
or the account of any Credit Party against obligations and
liabilities of such Credit Party to the Lenders hereunder, under
the Notes, the other Credit Documents or otherwise, irrespective
of whether the Administrative Agent or the Lenders shall have
made any demand hereunder and although such obligations,
liabilities or claims, or any of them, may be contingent or
unmatured or otherwise fully secured, and any such set-off shall
be deemed to have been made immediately upon the occurrence of an
Event of Default even though such charge is made or entered on
the books of such Lender subsequent thereto. The Credit Parties
hereby agree that any Person purchasing a participation in the
Loans and Commitments hereunder pursuant to Section 11.3(e) or
3.9 may exercise all rights of set-off with respect to its
participation interest as fully as if such Person were a Lender
hereunder. Each Lender hereby agrees that any set-off affected
pursuant to this Section 11.2 shall be subject to the terms of
the Intercreditor Agreement.
11.3 Benefit of Agreement.
(a) Generally. This Credit Agreement shall be binding
upon and inure to the benefit of and be enforceable by the
respective successors and assigns of the parties hereto;
provided that none of the Credit Parties may assign and
transfer any of its interests (except as permitted by
Section 8.4 or 8.5) without the prior written consent of the
Lenders; and provided further that the rights of each Lender
to transfer, assign or grant participations in its rights
and/or obligations hereunder shall be limited as set forth
below in this Section 11.3.
(b) Assignments. Each Lender may assign to one or
more Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including, without
limitation, all or a portion of its Loans, its Notes, and
its Commitments); provided, however, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except in the case of an assignment to
another Lender or an assignment of all of a Lender's
rights and obligations under this Credit Agreement, any
such partial assignment shall be in an amount at least
equal to $5,000,000 (or, if less, the remaining amount
of the Commitment being assigned by such Lender) or an
integral multiple of $1,000,000 in excess thereof;
(iii) each such assignment by a Lender shall
be of a constant, and not varying, percentage of all of
its rights and obligations under this Credit Agreement
and the Notes; and
(iv) the parties to such assignment shall execute
and deliver to the Administrative Agent for its
acceptance an Assignment Agreement in substantially the
form of Exhibit 11.3(b), together with a processing fee
from the assignor of $3,500.
Upon execution, delivery and acceptance of such Assignment
Agreement, the assignee thereunder shall be a party hereto
and, to the extent of such assignment, have the obligations,
rights, and benefits of a Lender hereunder and the assigning
Lender shall, to the extent of such assignment, relinquish
its rights and be released from its obligations under this
Credit Agreement. Upon the consummation of any assignment
pursuant to this Section 11.3(b), the assignor, the
Administrative Agent and the Borrower shall make appropriate
arrangements so that, if required, new Notes are issued to
the assignor and the assignee. If the assignee is not
incorporated under the laws of the United States of America
or a state thereof, it shall deliver to the Borrower and the
Administrative Agent certification as to exemption from
deduction or withholding of taxes in accordance with Section
3.14.
By executing and delivering an assignment agreement in
accordance with this Section 11.3(b), the assigning Lender
thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties
hereto as follows: (A) such assigning Lender warrants that
it is the legal and beneficial owner of the interest being
assigned thereby free and clear of any adverse claim and the
assignee warrants that it is an Eligible Assignee; (B)
except as set forth in clause (A) above, such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Credit
Agreement, any of the other Credit Documents or any other
instrument or document furnished pursuant hereto or thereto,
or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of this Credit Agreement,
any of the other Credit Documents or any other instrument or
document furnished pursuant hereto or thereto or the
financial condition of any Credit Party or the performance
or observance by any Credit Party of any of its obligations
under this Credit Agreement, any of the other Credit
Documents or any other instrument or document furnished
pursuant hereto or thereto; (C) such assignee represents and
warrants that it is legally authorized to enter into such
assignment agreement; (D) such assignee confirms that it has
received a copy of this Credit Agreement, the other Credit
Documents and such other documents and information as it has
deemed appropriate to make its own credit analysis and
decision to enter into such assignment agreement; (E) such
assignee will independently and without reliance upon the
Agents, such assigning Lender or any other Lender, and based
on such documents and information as it shall deem
appropriate at the time, continue to make its own credit
decisions in taking or not taking action under this Credit
Agreement and the other Credit Documents; (F) such assignee
appoints and authorizes the Agents to take such action on
its behalf and to exercise such powers under this Credit
Agreement or any other Credit Document as are delegated to
the Agents by the terms hereof or thereof, together with
such powers as are reasonably incidental thereto; and (G)
such assignee agrees that it will perform in accordance with
their terms all the obligations which by the terms of this
Credit Agreement and the other Credit Documents are required
to be performed by it as a Lender.
(c) Register. The Administrative Agent shall maintain
a copy of each Assignment Agreement delivered to and
accepted by it and a register for the recordation of the
names and addresses of the Lenders and the Commitment of,
and principal amount of the Loans owing to, each Lender from
time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent
manifest error, and the Borrower, the Agents and the Lenders
may treat each Person whose name is recorded in the Register
as a Lender hereunder for all purposes of this Credit
Agreement. The Register shall be available for inspection
by the Borrower or any Lender at any reasonable time and
from time to time upon reasonable prior notice.
(d) Acceptance. Upon its receipt of an Assignment
Agreement executed by the parties thereto, together with any
Note subject to such assignment and payment of the
processing fee, the Administrative Agent shall, if such
Assignment Agreement has been completed and is in
substantially the form of Exhibit 11.3(b) hereto, (i) accept
such Assignment Agreement, (ii) record the information
contained therein in the Register and (iii) give prompt
notice thereof to the parties thereto.
(e) Participations. Each Lender may sell
participations to one or more Persons in all or a portion of
its rights, obligations or rights and obligations under this
Credit Agreement (including all or a portion of its
Commitments and its Loans); provided, however, that (i)
such Lender's obligations under this Credit Agreement shall
remain unchanged, (ii) such Lender shall remain solely
responsible to the other parties hereto for the performance
of such obligations, (iii) the participant shall be
entitled to the benefit of the yield protection provisions
contained in Sections 3.10 through 3.15, inclusive, and the
right of set-off contained in Section 11.2, (iv) the
Borrower shall continue to deal solely and directly with
such Lender in connection with such Lender's rights and
obligations under this Credit Agreement, and such Lender
shall retain the sole right to enforce the obligations of
the Borrower relating to its Loans and its Notes and to
approve any amendment, modification, or waiver of any
provision of this Credit Agreement (other than amendments,
modifications, or waivers decreasing the amount of principal
of or the rate at which interest is payable on such Loans or
Notes, extending any scheduled principal payment date or
date fixed for the payment of interest on such Loans or
Notes, or extending its Commitments) and (v) such Lender
shall provide written notice of any participation to the
Borrower and the Administrative Agent.
(f) Nonrestricted Assignments. Notwithstanding any
other provision set forth in this Credit Agreement, any
Lender may at any time assign and pledge all or any portion
of its Loans and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A and any
Operating Circular issued by such Federal Reserve Bank. The
foregoing assignments and pledges shall not be subject to
the provisions of Section 11.3(b). No such assignment or
pledge shall release the assigning Lender from its
obligations hereunder.
(g) Information. Any Lender may furnish any
information concerning the Borrower or any of its
Subsidiaries in the possession of such Lender from time to
time to assignees and participants (including prospective
assignees and participants).
11.4 No Waiver; Remedies Cumulative.
No failure or delay on the part of an Agent or any Lender in
exercising any right, power or privilege hereunder or under any
other Credit Document and no course of dealing between the
Borrower or any Credit Party and any Agent or any Lender shall
operate as a waiver thereof; nor shall any single or partial
exercise of any right, power or privilege hereunder or under any
other Credit Document preclude any other or further exercise
thereof or the exercise of any other right, power or privilege
hereunder or thereunder. The rights and remedies provided herein
are cumulative and not exclusive of any rights or remedies which
any Agent or any Lender would otherwise have. No notice to or
demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or
other circumstances or constitute a waiver of the rights of the
Agents or the Lenders to any other or further action in any
circumstances without notice or demand.
11.5 Payment of Expenses; Indemnification.
(a) The Credit Parties jointly and severally agree to:
(a) pay on demand all reasonable out-of-pocket costs and
expenses of (i) the Agents in connection with (A) the
syndication, negotiation, preparation, execution and
delivery and administration of this Credit Agreement and the
other Credit Documents and the other documents and
instruments referred to therein (including, without
limitation, the reasonable fees and expenses of Moore & Van
Allen, special counsel to the Agents and the fees and
expenses of counsel for the Agents in connection with
collateral or foreign issues but not the fees and expenses
of any other Lender's counsel), and (B) any amendment,
waiver or consent relating hereto and thereto including, but
not limited to, any such amendments, waivers or consents
resulting from or related to any work-out, renegotiation or
restructure relating to the performance by the Credit
Parties under this Credit Agreement and (ii) the Agents and
the Lenders in connection with (A) enforcement of the Credit
Documents and the documents and instruments referred to
therein, including, without limitation, in connection with
any such enforcement, the reasonable fees and disbursements
of counsel for the Agents and each of the Lenders, and (B)
any bankruptcy or insolvency proceeding of a Credit Party or
any of its Subsidiaries and (b) indemnify each Agent and
each Lender and their respective affiliates, controlling
persons, officers, directors, employees, representatives and
agents (each an "indemnitee") from and hold each of them
harmless against any and all losses, liabilities, claims,
damages or expenses incurred by any of them as a result of,
or arising out of, or in any way related to, or by reason
of, any investigation, litigation or other proceeding
(whether or not any Agent or Lender or other indemnitee is a
party thereto) related to (i) the entering into and/or
performance of any Credit Document or the use of proceeds of
any Loans (including other Extensions of Credit) hereunder
or the consummation of any other transactions contemplated
in any Credit Document, including, without limitation, the
reasonable fees and disbursements of counsel incurred in
connection with any such investigation, litigation or other
proceeding (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), (ii) any Environmental Claim
(except to the extent such claim arises from the gross
negligence or willful misconduct of any indemnified party)
and (iii) any claims for Non-Excluded Taxes.
(b) Without prejudice to the survival of any other
agreement of the Credit Parties hereunder, the agreements
and obligations of the Credit Parties contained in this
Section 11.5 shall survive the repayment of the Loans, LOC
Obligations and other obligations under the Credit Documents
and the termination of the Commitments hereunder.
11.6 Amendments, Waivers and Consents.
Neither this Credit Agreement nor any other Credit Document
nor any of the terms hereof or thereof may be amended, changed,
waived, discharged or terminated unless such amendment, change,
waiver, discharge or termination is in writing and signed by the
Required Lenders and the Borrower; provided that no such
amendment, change, waiver, discharge or termination shall without
the consent of each Lender affected thereby:
(a) extend the Maturity Date or the time of payment of
any reimbursement obligation arising from drawings under
Letters of Credit;
(b) reduce the rate or extend the time of payment of
interest (other than as a result of waiving the
applicability of any post-default increase in interest
rates) thereon or fees hereunder;
(c) reduce or waive the principal amount of any Loan
or of any reimbursement obligation, or any portion thereof,
arising from drawings under Letters of Credit;
(d) increase or extend any Commitment of a Lender (it
being understood and agreed that a waiver of any Default or
Event of Default or a waiver of any mandatory reduction in
the Commitments shall not constitute a change in the terms
of any Commitment of any Lender);
(e) release all or substantially all of the Collateral
securing the Credit Party Obligations hereunder;
(f) release the Borrower from its obligations or
release all or substantially all of the other Credit Parties
from their respective obligations under the Credit
Documents;
(g) amend, modify or waive any provision of this
Section 11.6, Sections 3.4(a), 3.4(b)(i), 3.7, 3.8, 9.2(a),
11.2, 11.3 or 11.5;
(h) reduce any percentage specified in, or otherwise
modify, the definition of Required Lenders; or
(i) consent to the assignment or transfer by the
Borrower of any of its rights and obligations under (or in
respect of) the Credit Documents.
Notwithstanding the above, (i) no provisions of Section 10 may be
amended or modified without the consent of the Agents, (ii) no
provision of Sections 2.2 or 3.4(c) may be amended or modified
without the consent of the Issuing Lender or (iii) no provision
of Section 2.4 may be amended without the consent of the
Swingline Lender.
Notwithstanding the fact that the consent of all the Lenders is
required in certain circumstances as set forth above, (A) each
Lender is entitled to vote as such Lender sees fit on any
reorganization plan that affects the Loans or the Letters of
Credit, and each Lender acknowledges that the provisions of
Section 1126(c) of the Bankruptcy Code supersede the unanimous
consent provisions set forth herein and (B) the Required Lenders
may consent to allow a Credit Party to use cash collateral in the
context of a bankruptcy or insolvency proceeding.
11.7 Counterparts/Telecopy.
This Credit Agreement may be executed in any number of
counterparts, each of which where so executed and delivered shall
be an original, but all of which shall constitute one and the
same instrument. Delivery of executed counterparts by telecopy
shall be as effective as an original and shall constitute a
representation that an original will be delivered.
11.8 Headings.
The headings of the sections and subsections hereof are
provided for convenience only and shall not in any way affect the
meaning or construction of any provision of this Credit
Agreement.
11.9 Defaulting Lender.
Each Lender understands and agrees that if such Lender is a
Defaulting Lender then notwithstanding the provisions of Section
11.6 it shall not be entitled to vote on any matter requiring the
consent of the Required Lenders or to object to any matter
requiring the consent of all the Lenders; provided, however, that
all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.10 Survival of Indemnification and Representations
and Warranties.
All indemnities set forth herein and all representations and
warranties made herein shall survive the execution and delivery
of this Credit Agreement, the making of the Loans, the issuance
of the Letters of Credit and the repayment of the Loans, LOC
Obligations and other obligations and the termination of the
Commitments hereunder.
11.11 Governing Law; Jurisdiction.
(a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND
THEREUNDER SHALL BE GOVERNED BY AND CONSTRUED AND
INTERPRETED IN ACCORDANCE WITH THE LAWS OF THE STATE OF
SOUTH CAROLINA. Any legal action or proceeding with respect
to this Agreement or any other Credit Document may be
brought in the courts of the State of North Carolina or of
the United States for the Western District of North
Carolina, and, by execution and delivery of this Credit
Agreement, each Credit Party hereby irrevocably accepts for
itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each
Credit Party further irrevocably consents to the service of
process out of any of the aforementioned courts in any such
action or proceeding by the mailing of copies thereof by
registered or certified mail, postage prepaid, to it at the
address for notices pursuant to Section 11.1, such service
to become effective 10 days after such mailing. Nothing
herein shall affect the right of a Lender to serve process
in any other manner permitted by law or to commence legal
proceedings or to otherwise proceed against a Credit Party
in any other jurisdiction. Each Credit Party agrees that a
final judgment in any action or proceeding shall be
conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law;
provided that nothing in this Section 11.11(a) is intended
to impair a Credit Party's right under applicable law to
appeal or seek a stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any
objection which it may now or hereafter have to the laying
of venue of any of the aforesaid actions or proceedings
arising out of or in connection with this Credit Agreement
or any other Credit Document brought in the courts referred
to in subsection (a) hereof and hereby further irrevocably
waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court
has been brought in an inconvenient forum.
11.12 Waiver of Jury Trial; Waiver of Consequential
Damages.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY
WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR
COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS CREDIT AGREEMENT,
ANY OF THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY. Each Credit Party agrees not to assert any
claim against the Agents, the Issuing Lender, any Lender, any of
their Affiliates, or any of their respective directors, officers,
employees, attorneys or agents, on any theory of liability, for
special, indirect, consequential or punitive damages arising out
of or otherwise relating to any of the transactions contemplated
herein.
11.13 Time.
All references to time herein shall be references to Eastern
Standard Time or Eastern Daylight time, as the case may be,
unless specified otherwise.
11.14 Severability.
If any provision of any of the Credit Documents is
determined to be illegal, invalid or unenforceable, such
provision shall be fully severable and the remaining provisions
shall remain in full force and effect and shall be construed
without giving effect to the illegal, invalid or unenforceable
provisions.
11.15 Further Assurances.
The Credit Parties agree, upon the request of an Agent, to
promptly take such actions, as reasonably requested, as is
necessary to carry out the intent of this Credit Agreement and
the other Credit Documents, including, but not limited to, such
actions as are necessary to ensure that the Collateral Agent, for
the benefit of the Secured Parties, has a perfected security
interest in the Collateral subject to no Liens other than
Permitted Liens.
11.16 Entirety.
This Credit Agreement together with the other Credit
Documents and the Fee Letter represent the entire agreement of
the parties hereto and thereto, and supersede all prior
agreements and understandings, oral or written, if any, including
any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.17 Binding Effect; Continuing Agreement.
(a) This Credit Agreement shall become effective at
such time when all of the conditions set forth in Section
5.1 have been satisfied or waived by the Administrative
Agent (with the consent of the Required Lenders) and the
Administrative Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear
the signatures of Borrower, the Guarantors and the Lenders,
and thereafter this Credit Agreement shall be binding upon
and inure to the benefit of the Borrower, the Guarantors,
the Agents and each Lender and their respective successors
and assigns.
(b) This Credit Agreement shall be a continuing
agreement and shall remain in full force and effect until
all Loans, LOC Obligations, interest, fees and other Credit
Party Obligations (other than any obligations which by the
terms thereof are stated to survive the termination of the
Credit Documents) have been paid in full and all Commitments
and Letters of Credit have been terminated. Upon
termination, the Credit Parties shall have no further
obligations (other than the indemnification provisions that
survive) under the Credit Documents and the Collateral Agent
shall, at the request and expense of the Borrower, deliver
all Collateral in its possession to the Borrower and release
all Liens on Collateral; provided that should any payment,
in whole or in part, of the Credit Party Obligations be
rescinded or otherwise required to be restored or returned
by an Agent or any Lender, whether as a result of any
proceedings in bankruptcy or reorganization or otherwise,
then the Credit Documents shall automatically be reinstated
and all Liens of the Lenders shall reattach to the
Collateral and all amounts required to be restored or
returned and all costs and expenses incurred by an Agent or
Lender in connection therewith shall be deemed included as
part of the Credit Party Obligations.
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Each of the parties hereto has caused a counterpart of this
Credit Agreement to be duly executed and delivered as of the
date first above written.
BORROWER:
RYAN'S FAMILY STEAK HOUSES, INC.,
a South Carolina corporation
By:
Name:
Title:
GUARANTORS:
BIG R PROCUREMENT COMPANY, LLC, a
Delaware limited liability company
By: RYAN'S FAMILY STEAK HOUSES,
INC., a South Carolina corporation,
its sole manager
By:
Name:
Title:
RYAN'S FAMILY STEAK HOUSES TLC, INC., a
Delaware corporation
By:
Name:
Title:
RYAN'S FAMILY STEAK HOUSES
EAST, INC., a Delaware corporation
By:
Name:
Title:
RYAN'S PROPERTIES, INC., a Delaware
corporation
By:
Name:
Title:
RYMARK HOLDINGS, INC., a Delaware
corporation
By:
Name:
Title:
RYAN'S HOOSIER GROUP, LP, a South
Carolina limited partnership
By: RYAN'S FAMILY STEAK HOUSES
TLC, INC., a Delaware corporation,
its sole
general partner
By:
Name:
Title:
RYAN'S MEGA MANUFACTURING GROUP, LP, a
South Carolina limited partnership
By: RYAN'S FAMILY STEAK HOUSES
TLC, INC., a Delaware corporation,
its sole
general partner
By:
Name:
Title:
LENDERS:
BANK OF AMERICA, N.A.,
in its capacity as
Administrative Agent
By:
Name:
Title:
BANK OF AMERICA, N.A., individually
in its capacity as a Lender
By:
Name:
Title:
FIRST UNION NATIONAL BANK, in its
capacity as Syndication Agent and in its
capacity as a Lender
By:
Name:
Title:
WACHOVIA BANK, N.A., in its capacity as
Documentation Agent and in its capacity
as a
Lender
By:
Name:
Title:
SUNTRUST BANK, ATLANTA, in its capacity
as Senior Managing Agent and in its
capacity
as a Lender
By:
Name:
Title:
SOUTHTRUST BANK, N.A.
By:
Name:
Title:
HIBERNIA NATIONAL BANK
By:
Name:
Title:
BANKBOSTON, N.A.
By:
Name:
Title: