EXHIBIT 10.18
$93,000,000
CREDIT AGREEMENT
dated as of
June 5, 1996
among
RYAN'S FAMILY STEAK HOUSES, INC.
The Banks Listed Herein
and
WACHOVIA BANK OF GEORGIA, N.A.,
as Agent
CREDIT AGREEMENT
ARTICLE I DEFINITIONS
SECTION 1.01. Definitions 1
SECTION 1.02. Accounting Terms and Determinations 11
SECTION 1.03. Use of Defined Terms 11
SECTION 1.04. Terminology 11
SECTION 1.05. References 11
ARTICLE II THE CREDITS
SECTION 2.01. Commitments to Make Loans 12
SECTION 2.02. Method of Borrowing Loans 12
SECTION 2.03. Notes 14
SECTION 2.04. Maturity of Loans 14
SECTION 2.05. Interest Rates 14
SECTION 2.06. Fees 16
SECTION 2.07. Optional Termination or Reduction of Commitments16
SECTION 2.08. Mandatory Reduction and Termination of Commitments
16
SECTION 2.09. Optional Prepayments 17
SECTION 2.10. Mandatory Prepayments 17
SECTION 2.11. General Provisions as to Payments 17
SECTION 2.12. Computation of Interest and Fees 18
ARTICLE III CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing 19
SECTION 3.02. Conditions to All Borrowings 20
ARTICLE IVREPRESENTATIONS AND WARRANTIES
SECTION 4.01. Corporate Existence and Power 20
SECTION 4.02. Corporate and Governmental Authorization; No
Contravention 20
SECTION 4.03. Binding Effect 21
SECTION 4.04. Financial Information 21
SECTION 4.05. Litigation 21
SECTION 4.06. Compliance with ERISA 21
SECTION 4.07. Taxes 22
SECTION 4.08. Subsidiaries 22
SECTION 4.09. Not an Investment Company 22
SECTION 4.10 Public Utility Holding Company Act 22
SECTION 4.11. Ownership of Property; Liens 22
SECTION 4.12. No Default 22
SECTION 4.13. Full Disclosure 22
SECTION 4.14. Environmental Matters 22
SECTION 4.15. Compliance with Laws 23
SECTION 4.16. Capital Stock 23
SECTION 4.17. Margin Stock 23
SECTION 4.18. Insolvency 24
ARTICLE V COVENANTS
SECTION 5.01. Information 24
SECTION 5.02. Inspection of Property, Books and Records 25
SECTION 5.03. Ratio of Consolidated Funded Debt to Total
Consolidated Capitalization. 26
SECTION 5.04. Minimum Consolidated Net Worth 26
SECTION 5.05. Fixed Charge Coverage 26
SECTION 5.06. Loans or Advances 26
SECTION 5.07. Investments 26
SECTION 5.08. Negative Pledge 27
SECTION 5.09. Maintenance of Existence 28
SECTION 5.10. Dissolution 28
SECTION 5.11. Consolidations, Mergers and Sales of Assets 28
SECTION 5.12. Use of Proceeds 29
SECTION 5.13. Compliance with Laws; Payment of Taxes 29
SECTION 5.14. Insurance 29
SECTION 5.15. Change in Fiscal Year 29
SECTION 5.16. Maintenance of Property 29
SECTION 5.17. Environmental Notices 30
SECTION 5.18. Environmental Matters 30
SECTION 5.19. Environmental Release 30
SECTION 5.20. Transactions with Affiliates 30
SECTION 5.21. Debt 30
ARTICLE VI DEFAULTS
SECTION 6.01. Events of Default 30
SECTION 6.02. Notice of Default 33
ARTICLE VII THE AGENT
SECTION 7.01. Appointment, Powers and Immunities 33
SECTION 7.02. Reliance by Agent 34
SECTION 7.03. Defaults 34
SECTION 7.04. Rights of Agent and its Affiliates as a Bank 34
SECTION 7.05. Indemnification 34
SECTION 7.06. CONSEQUENTIAL DAMAGES 35
SECTION 7.07. Payee of Note Treated as Owner 35
SECTION 7.08. Non-Reliance on Agent and Other Banks 35
SECTION 7.09. Failure to Act 35
SECTION 7.10. Resignation or Removal of Agent 36
ARTICLE VIIICHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate Inadequate or
Unfair 36
SECTION 8.02. Illegality 36
SECTION 8.03. Increased Cost and Reduced Return 37
SECTION 8.04. Base Rate Loans or Other Euro-Dollar Loans
Substituted for Affected Euro-Dollar Loans 38
SECTION 8.05. Compensation 39
ARTICLE IX MISCELLANEOUS
SECTION 9.01. Notices 39
SECTION 9.02. No Waivers 40
SECTION 9.03. Expenses; Documentary Taxes; Indemnification 40
SECTION 9.04. Setoffs; Sharing of Set-Offs 41
SECTION 9.05. Amendments and Waivers 41
SECTION 9.06. Margin Stock Collateral 42
SECTION 9.07. Successors and Assigns 42
SECTION 9.08. Confidentiality 44
SECTION 9.09. Representation by Banks 44
SECTION 9.10. Obligations Several 44
SECTION 9.11. Survival of Certain Obligations 44
SECTION 9.12. Georgia Law 45
SECTION 9.13. Severability 45
SECTION 9.14. Interest 45
SECTION 9.15. Interpretation 45
SECTION 9.16. Consent to Jurisdiction 45
SECTION 9.17. Counterparts 45
SCHEDULE 4.08 - Existing Subsidiaries
EXHIBIT A - Form of Promissory Note
EXHIBIT B - Form of Opinion of Counsel for the Borrower
EXHIBIT C - Form of Opinion of Special Counsel for the Agent
EXHIBIT D - Form of Closing Certificate of the Borrower
EXHIBIT E - Form of Secretary's Certificate of the Borrower
EXHIBIT F - Form of Compliance Certificate
EXHIBIT G - Form of Assignment and Acceptance
EXHIBIT H - Form of Notice of Borrowing
CREDIT AGREEMENT
AGREEMENT dated as of June 5, 1996 among RYAN'S FAMILY
STEAK HOUSES, INC., the BANKS listed on the signature pages
hereof and WACHOVIA BANK OF GEORGIA, N.A., as Agent.
The parties hereto agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01. Definitions. The terms as defined in
this Section 1.01 shall, for all purposes of this Agreement and
any amendment hereto (except as herein otherwise expressly
provided or unless the context otherwise requires), have the
meanings set forth herein:
"Adjusted London Interbank Offered Rate" has the
meaning set forth in Section 2.05(c).
"Affiliate" of any Person means (i) any other Person
which directly, or indirectly through one or more intermediaries,
controls such Person, (ii) any other Person which directly, or
indirectly through one or more intermediaries, is controlled by
or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or
more of the common stock or equivalent equity interests. As used
herein, the term "control" means possession, directly or
indirectly, of the power to direct or cause the direction of the
management or policies of a Person, whether through the ownership
of voting securities, by contract or otherwise.
"Agent" means Wachovia Bank of Georgia, N.A., a
national banking association organized under the laws of the
United States of America, in its capacity as agent for the Banks
hereunder, and its successors and permitted assigns in such
capacity.
"Agent's Letter Agreement" means that certain letter
agreement, dated as of March 28, 1996, as amended by a letter
agreement dated June 3, 1996, between the Borrower and the Agent
relating to the structure of the Loans, and certain fees from
time to time payable by the Borrower to the Agent, together with
all amendments and modifications thereto.
"Agreement" means this Credit Agreement, together with
all amendments and supplements hereto.
"Applicable Margin" has the meaning set forth in
Section 2.05(a).
"Assignee" has the meaning set forth in Section
9.07(c).
"Assignment and Acceptance" means an Assignment and
Acceptance executed in accordance with Section 9.07(c) in the
form attached hereto as Exhibit G.
"Authority" has the meaning set forth in Section 8.02.
"Bank" means each bank listed on the signature pages
hereof as having a Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day,
the rate per annum equal to the higher as of such day of (i) the
Prime Rate, and (ii) one-half of one percent above the Federal
Funds Rate for such day. For purposes of determining the Base
Rate for any day, changes in the Prime Rate and the Federal Funds
Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan which bears or is to bear
interest at a rate based upon the Base Rate.
"Borrower" means Ryan's Family Steak Houses, Inc., a
South Carolina corporation, and its successors and permitted
assigns.
"Borrowing" means a borrowing hereunder consisting of
Loans made to the Borrower at the same time by the Banks,
pursuant to Article II. A Borrowing is a "Base Rate Borrowing"
if such Loans are Base Rate Loans or a "Euro-Dollar Borrowing" if
such Loans are Euro-Dollar Loans.
"Capital Stock" means any nonredeemable capital stock
of the Borrower or any Consolidated Subsidiary (to the extent
issued to a Person other than the Borrower), whether common or
preferred.
"CERCLA" means the Comprehensive Environmental Response
Compensation and Liability Act, 42 U.S.C. 9601 et seq. and its
implementing regulations and amendments.
"CERCLIS" means the Comprehensive Environmental
Response Compensation and Liability Information System
established pursuant to CERCLA.
"Change of Law" shall have the meaning set forth in
Section 8.02.
"Closing Certificate" has the meaning set forth in
Section 3.01(e).
"Closing Date" means June 5, 1996.
"Code" means the Internal Revenue Code of 1986, as
amended, or any successor Federal tax code. Any reference to any
provision of the Code shall also be deemed to be a reference to
any successor provision or provisions thereof.
"Commitment" means, with respect to each Bank, (i) the
amount set forth opposite the name of such Bank on the signature
pages hereof, or (ii) as to any Bank which enters into an
Assignment and Acceptance (whether as transferor Bank or as
Assignee thereunder), the amount of such Bank's Commitment after
giving effect to such Assignment and Acceptance, in each case as
such amount may be reduced from time to time pursuant to Sections
2.07 and 2.08.
"Commitment Fee Payment Date" means June 30, 1996,
September 30, 1996 and the Final Drawdown Date.
"Commitment Reduction Amount" means an amount
determined on the Final Drawdown Date equal to: (A) the aggregate
amount of the Commitments of all of the Banks, after giving
effect to any reductions pursuant to Section 2.08(d), divided by
(B)16.
"Commitment Reduction Date" means each June 4,
September 4, December 4 and March 4, commencing on September 4,
1999 and continuing on each Commitment Reduction Date thereafter
until the Final Maturity Date.
"Compliance Certificate" has the meaning set forth in
Section 5.01(c).
"Consolidated Funded Debt" means at any date the Debt
of the Borrower and its Consolidated Subsidiaries, determined on
a consolidated basis as of such date.
"Consolidated Fixed Charges" for any period means the
sum of (i) Consolidated Interest Expense for such period, and
(ii) all payment obligations of the Borrower and its Consolidated
Subsidiaries for such period under all operating leases and
rental agreements.
"Consolidated Interest Expense" for any period means
interest, whether expensed or capitalized, in respect of Debt of
the Borrower or any of its Consolidated Subsidiaries outstanding
during such period.
"Consolidated Net Income" means, for any period, the
Net Income of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis, but excluding
(i) extraordinary items and (ii) any equity interests of the
Borrower or any Subsidiary in the unremitted earnings of any
Person that is not a Subsidiary.
"Consolidated Subsidiary" means at any date any
Subsidiary or other entity the accounts of which, in accordance
with GAAP, would be consolidated with those of the Borrower in
its consolidated financial statements as of such date.
"Consolidated Net Worth" means, at any time,
Stockholders' Equity.
"Consolidated Total Assets" means, at any time, the
total assets of the Borrower and its Consolidated Subsidiaries,
determined on a consolidated basis, as set forth or reflected on
the most recent consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries, prepared in accordance with GAAP.
"Controlled Group" means all members of a controlled
group of corporations and all trades or businesses (whether or
not incorporated) under common control which, together with the
Borrower, are treated as a single employer under Section 414 of
the Code.
"Debt" of any Person means at any date, without
duplication, (i) all obligations of such Person for borrowed
money, (ii) all obligations of such Person evidenced by bonds,
debentures, notes or other similar instruments, (iii) all
obligations of such Person to pay the deferred purchase price of
property or services, except trade accounts payable arising in
the ordinary course of business, (iv) all obligations of such
Person as lessee under capital leases, (v) all obligations of
such Person to reimburse any bank or other Person in respect of
amounts payable under a banker's acceptance, (vi) all Redeemable
Preferred Stock of such Person (in the event such Person is a
corporation), (vii) all obligations (absolute or contingent) of
such Person to reimburse any bank or other Person in respect of
amounts to be paid under a letter of credit or similar instrument
with an expiry date of one year or longer, (viii) all Debt of
others secured by a Lien on any asset of such Person, whether or
not such Debt is assumed by such Person, and (ix) all Debt of
others Guaranteed by such Person.
"Default" means any condition or event which
constitutes an Event of Default or which with the giving of
notice or lapse of time or both would, unless cured or waived in
writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any
day, the sum of 2% plus the then highest interest rate (including
the Applicable Margin) which may be applicable to any Loans
hereunder (irrespective of whether any such type of Loans are
actually outstanding hereunder).
"Dollars" or "$" means dollars in lawful currency of
the United States of America.
"Domestic Business Day" means any day except a
Saturday, Sunday or other day on which commercial banks in
Georgia are authorized or required by law to close.
"Environmental Authority" means any foreign, federal,
state, local or regional government that exercises any form of
jurisdiction or authority under any Environmental Requirement.
"Environmental Authorizations" means all licenses,
permits, orders, approvals, notices, registrations or other legal
prerequisites for conducting the business of the Borrower or any
Subsidiary required by any Environmental Requirement.
"Environmental Judgments and Orders" means all
judgments, decrees or orders arising from or in any way
associated with any Environmental Requirements, whether or not
entered upon consent or written agreements with an Environmental
Authority or other entity arising from or in any way associated
with any Environmental Requirement, whether or not incorporated
in a judgment, decree or order.
"Environmental Laws" means any and all federal, state,
local and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or other governmental
restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or
petroleum products, chemicals or industrial, toxic or hazardous
substances or wastes into the environment, including, without
limitation, ambient air, surface water, groundwater or land, or
otherwise relating to the manufacture, processing, distribution,
use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products,
chemicals or industrial, toxic or hazardous substances or wastes
or the clean-up or other remediation thereof.
"Environmental Liabilities" means any liabilities,
whether accrued, contingent or otherwise, arising from and in any
way associated with any Environmental Requirements.
"Environmental Notices" means notice from any
Environmental Authority or by any other person or entity, of
possible or alleged noncompliance with or liability under any
Environmental Requirement, including without limitation any
complaints, citations, demands or requests from any Environmental
Authority or from any other person or entity for correction of
any violation of any Environmental Requirement or any
investigations concerning any violation of any Environmental
Requirement.
"Environmental Proceedings" means any judicial or
administrative proceedings arising from or in any way associated
with any Environmental Requirement.
"Environmental Releases" means releases as defined in
CERCLA or under any applicable state or local environmental law
or regulation.
"Environmental Requirements" means any legal
requirement relating to health, safety or the environment and
applicable to the Borrower, any Subsidiary or the Properties,
including but not limited to any such requirement under CERCLA or
similar state legislation and all federal, state and local laws,
ordinances, regulations, orders, writs, decrees and common law.
"ERISA" means the Employee Retirement Income Security
Act of 1974, as amended from time to time, or any successor law.
Any reference to any provision of ERISA shall also be deemed to
be a reference to any successor provision or provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business
Day on which dealings in Dollar deposits are carried out in the
London interbank market.
"Euro-Dollar Loan" means a Loan which bears or is to
bear interest at a rate based upon the London Interbank Offered
Rate.
"Euro-Dollar Reserve Percentage" has the meaning set
forth in Section 2.05(c).
"Event of Default" has the meaning set forth in Section
6.01.
"Federal Funds Rate" means, for any day, the rate per
annum (rounded upward, if necessary, to the next higher 1/100th
of 1%) equal to the weighted average of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic
Business Day next succeeding such day, provided that (i) if the
day for which such rate is to be determined is not a Domestic
Business Day, the Federal Funds Rate for such day shall be such
rate on such transactions on the next preceding Domestic Business
Day as so published on the next succeeding Domestic Business Day,
and (ii) if such rate is not so published for any day, the
Federal Funds Rate for such day shall be the average rate charged
to Wachovia on such day on such transactions as determined by the
Agent.
"Final Drawdown" means: (1) the first Borrowing under
this Agreement, if the amount of such Borrowing equals the
aggregate amount of the Commitments of all of the Banks; or (2)
if the amount of the first Borrowing does not equal the aggregate
amount of the Commitments of all of the Banks, the second
Borrowing under this Agreement the proceeds of which are not used
exclusively for the purpose of repaying Loans maturing on the
date of such Borrowing; provided, that after the Final Drawdown
Date, the proceeds of all Borrowings under this Agreement shall
be used exclusively for the purpose of repaying Loans maturing on
the date of such Borrowing.
"Final Drawdown Date" means the earlier of: (i) the
date the proceeds of the Final Drawdown are advanced to the
Borrower; and (ii) December 2, 1996.
"Final Maturity Date" means June 4, 2003.
"Fiscal Quarter" means any fiscal quarter of the
Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles
applied on a basis consistent with those which, in accordance
with Section 1.02, are to be used in making the calculations for
purposes of determining compliance with the terms of this
Agreement.
"Guarantee" by any Person means any obligation,
contingent or otherwise, of such Person directly or indirectly
guaranteeing any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any
obligation, direct or indirect, contingent or otherwise, of such
Person (i) to secure, purchase or pay (or advance or supply funds
for the purchase or payment of) such Debt or other obligation
(whether arising by virtue of partnership arrangements, by
agreement to keep-well, to purchase assets, goods, securities or
services, to provide collateral security, to take-or-pay, or to
maintain financial statement conditions or otherwise) or
(ii) entered into for the purpose of assuring in any other manner
the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect
thereof (in whole or in part), provided that the term Guarantee
shall not include endorsements for collection or deposit in the
ordinary course of business. The term "Guarantee" used as a verb
has a corresponding meaning.
"Hazardous Materials" includes, without limitation, (a)
solid or hazardous waste, as defined in the Resource Conservation
and Recovery Act of 1980, 42 U.S.C. 6901 et seq. and its
implementing regulations and amendments, or in any applicable
state or local law or regulation, (b) any "hazardous substance",
"pollutant" or "contaminant", as defined in CERCLA, or in any
applicable state or local law or regulation, (c) gasoline, or any
other petroleum product or by-product, including crude oil or any
fraction thereof, (d) toxic substances, as defined in the Toxic
Substances Control Act of 1976, or in any applicable state or
local law or regulation and (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide,
and Rodenticide Act of 1975, or in any applicable state or local
law or regulation, as each such Act, statute or regulation may be
amended from time to time.
"Income Available for Fixed Charges" for any period
means the sum of (i) Consolidated Net Income, (ii) taxes on
income and (iii) Consolidated Fixed Charges, all determined with
respect to the Borrower and its Consolidated Subsidiaries on a
consolidated basis for such period and in accordance with GAAP.
"Interest Period" means: (1) with respect to each Euro-
Dollar Borrowing, the period commencing on the date of such
Borrowing and ending on the numerically corresponding day in the
first, second, third or sixth month thereafter, as the Borrower
may elect in the applicable Notice of Borrowing; provided that:
(a) any Interest Period (subject to clause (c) below)
which would otherwise end on a day which is not a Euro-
Dollar Business Day shall be extended to the next succeeding
Euro-Dollar Business Day unless such Euro-Dollar Business
Day falls in another calendar month, in which case such
Interest Period shall end on the next preceding Euro-Dollar
Business Day;
(b) any Interest Period which begins on the last Euro-
Dollar Business Day of a calendar month (or on a day for
which there is no numerically corresponding day in the
appropriate subsequent calendar month) shall, subject to
clause (c) below, end on the last Euro-Dollar Business Day
of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins
before the Final Maturity Date and would otherwise end after
the Final Maturity Date.
(2) with respect to each Base Rate Borrowing, the period
commencing on the date of such Borrowing and ending 30 days
thereafter; provided that:
(a) any Interest Period (subject to clause (b) below)
which would otherwise end on a day which is not a Domestic
Business Day shall be extended to the next succeeding
Domestic Business Day; and
(b) no Interest Period may be selected which begins
before the Final Maturity Date and would otherwise end after
the Final Maturity Date.
"Investment" means any investment in any Person,
whether by means of purchase or acquisition of obligations or
securities of such Person, capital contribution to such Person,
loan or advance to such Person, making of a time deposit with
such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Lending Office" means, as to each Bank, its office
located at its address set forth on the signature pages hereof
(or identified on the signature pages hereof as its Lending
Office) or such other office as such Bank may hereafter designate
as its Lending Office by notice to the Borrower and the Agent.
"Lien" means, with respect to any asset, any mortgage,
deed to secure debt, deed of trust, lien, pledge, charge,
security interest, security title, preferential arrangement which
has the practical effect of constituting a security interest or
encumbrance, servitude or encumbrance of any kind in respect of
such asset to secure or assure payment of a Debt or a Guarantee,
whether by consensual agreement or by operation of statute or
other law, or by any agreement, contingent or otherwise, to
provide any of the foregoing. For the purposes of this
Agreement, the Borrower or any Subsidiary shall be deemed to own
subject to a Lien any asset which it has acquired or holds
subject to the interest of a vendor or lessor under any
conditional sale agreement, capital lease or other title
retention agreement relating to such asset.
"Loan" means a Base Rate Loan or a Euro-Dollar Loan and
"Loans" means Base Rate Loans or Euro-Dollar Loans, or any or all
of them, as the context shall require.
"Loan Documents" means this Agreement, the Notes, any
other document evidencing, relating to or securing the Loans, and
any other document or instrument delivered from time to time in
connection with this Agreement, the Notes or the Loans, as such
documents and instruments may be amended or supplemented from
time to time.
"London Interbank Offered Rate" has the meaning set
forth in Section 2.05(c).
"Margin Stock" means "margin stock" as defined in
Regulation G, T, U or X of the Board of Governors of the Federal
Reserve System, as in effect from time to time, together with all
official rulings and interpretations issued thereunder.
"Material Adverse Effect" means, with respect to any
event, act, condition or occurrence of whatever nature (including
any adverse determination in any litigation, arbitration, or
governmental investigation or proceeding), whether singly or in
conjunction with any other event or events, act or acts,
condition or conditions, occurrence or occurrences, whether or
not related, a material adverse change in, or a material adverse
effect upon, any of (a) the financial condition, operations,
business, properties or prospects of the Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and
remedies of the Agent or the Banks under the Loan Documents, or
the ability of the Borrower to perform its obligations under the
Loan Documents to which it is a party, as applicable, or (c) the
legality, validity or enforceability of any Loan Document.
"Multiemployer Plan" shall have the meaning set forth
in Section 4001(a)(3) of ERISA.
"Net Income" means, as applied to any Person for any
period, the aggregate amount of net income of such Person, after
taxes, for such period, as determined in accordance with GAAP.
"Net Proceeds of Capital Stock" means any and all
proceeds (whether cash or non-cash) or other consideration
received by the Borrower or a Consolidated Subsidiary in respect
of the issuance of Capital Stock (including without limitation,
the aggregate amount of any and all Debt converted into Capital
Stock), after deducting therefrom all reasonable and customary
costs and expenses incurred by the Borrower or such Consolidated
Subsidiary directly in connection with the issuance of such
Capital Stock.
"Notes" means promissory notes of the Borrower,
substantially in the form of Exhibit A hereto, evidencing the
obligation of the Borrower to repay the Loans, together with all
amendments, consolidations, modifications, renewals and
supplements thereto and "Note" means any one of such Notes.
"Notice of Borrowing" has the meaning set forth in
Section 2.02.
"Officer's Certificate" has the meaning set forth in
Section 3.01(f).
"Participant" has the meaning set forth in Section
9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation
or any entity succeeding to any or all of its functions under
ERISA.
"Permitted Acquisitions" means a purchase by the
Borrower of all or substantially all of the assets or at least
seventy-five (75%) of the outstanding Capital Stock of another
Person (the "Acquired Entity") that satisfies the following
conditions: (1) the Acquired Entity is in the same, similar or
related business to the businesses in which the Borrower and its
Subsidiaries are engaged on the Closing Date; (2) immediately
after giving effect to any such purchase the Borrower will be in
full compliance with all provisions of this Agreement; and (3)
such purchase is made on a negotiated basis with the approval of
the board of directors of the Acquired Entity.
"Person" means an individual, a corporation, a
partnership (including without limitation, a joint venture), an
unincorporated association, a trust or any other entity or
organization, including, but not limited to, a government or
political subdivision or an agency or instrumentality thereof.
"Plan" means at any time an employee pension benefit
plan which is covered by Title IV of ERISA or subject to the
minimum funding standards under Section 412 of the Code and is
either (i) maintained by a member of the Controlled Group for
employees of any member of the Controlled Group or (ii)
maintained pursuant to a collective bargaining agreement or any
other arrangement under which more than one employer makes
contributions and to which a member of the Controlled Group is
then making or accruing an obligation to make contributions or
has within the preceding 5 plan years made contributions.
"Prime Rate" refers to that interest rate so
denominated and set by Wachovia from time to time as an interest
rate basis for borrowings. The Prime Rate is but one of several
interest rate bases used by Wachovia. Wachovia lends at interest
rates above and below the Prime Rate.
"Properties" means all real property owned, leased or
otherwise used or occupied by the Borrower or any Subsidiary,
wherever located.
"Redeemable Preferred Stock" of any Person means any
preferred stock issued by such Person which is at any time prior
to the Final Maturity Date either (i) mandatorily redeemable (by
sinking fund or similar payments or otherwise) or (ii) redeemable
at the option of the holder thereof.
"Reported Net Income" means, for any period, the Net
Income of the Borrower and its Consolidated Subsidiaries
determined on a consolidated basis.
"Required Banks" means at any time Banks having at
least 66_% of the aggregate amount of the Commitments or, if the
Commitments are no longer in effect, Banks holding at least 66_%
of the aggregate outstanding principal amount of the Notes.
"Stockholders' Equity" means, at any time, the
shareholders' equity of the Borrower and its Consolidated
Subsidiaries, as set forth or reflected on the most recent
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any
Redeemable Preferred Stock of the Borrower or any of its
Consolidated Subsidiaries. Shareholders' equity generally would
include, but not be limited to (i) the par or stated value of all
outstanding Capital Stock, (ii) capital surplus, (iii) retained
earnings, and (iv) various deductions such as (A) purchases of
treasury stock, (B) valuation allowances, (C) receivables due
from an employee stock ownership plan, (D) employee stock
ownership plan debt guarantees, and (E) translation adjustments
for foreign currency transactions.
"Subsidiary" means any corporation or other entity of
which securities or other ownership interests having ordinary
voting power to elect a majority of the board of directors or
other persons performing similar functions are at the time
directly or indirectly owned by the Borrower.
"Taxes" has the meaning set forth in Section 2.11(c).
"Third Parties" means all lessees, sublessees,
licensees and other users of the Properties, excluding those
users of the Properties in the ordinary course of the Borrower's
business and on a temporary basis.
"Total Consolidated Capitalization" means, at any time,
the sum of (i) Consolidated Net Worth, and (ii) Consolidated
Funded Debt, provided, that for purposes of this definition only,
in determining Consolidated Funded Debt, clauses (vii), (viii)
and (ix) of the definition of Debt contained in this Agreement
shall be disregarded.
"Transferee" has the meaning set forth in Section
9.07(d).
"Unused Commitment" means at any date, with respect to
any Bank, an amount equal to its Commitment less the aggregate
outstanding principal amount of its Loans.
"Wachovia" means Wachovia Bank of Georgia, N.A., a
national banking association and its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of
the shares of capital stock or other ownership interests of which
(except directors' qualifying shares) are at the time directly or
indirectly owned by the Borrower.
SECTION 1.02. Accounting Terms and Determinations.
Unless otherwise specified herein, all terms of an accounting
character used herein shall be interpreted, all accounting
determinations hereunder shall be made, and all financial
statements required to be delivered hereunder shall be prepared
in accordance with GAAP, applied on a basis consistent (except
for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in GAAP) with the
most recent audited consolidated financial statements of the
Borrower and its Consolidated Subsidiaries delivered to the
Banks, unless with respect to any such change concurred in by the
Borrower's independent public accountants or required by GAAP, in
determining compliance with any of the provisions of this
Agreement or any of the other Loan Documents: (i) the Borrower
shall have objected to determining such compliance on such basis
at the time of delivery of such financial statements, or (ii)
the Required Banks shall so object in writing within 30 days
after the delivery of such financial statements, in either of
which events such calculations shall be made on a basis
consistent with those used in the preparation of the latest
financial statements as to which such objection shall not have
been made (which, if objection is made in respect of the first
financial statements delivered under Section 5.01 hereof, shall
mean the financial statements referred to in Section 4.04).
SECTION 1.03. Use of Defined Terms. All terms defined
in this Agreement shall have the same meanings when used in any
of the other Loan Documents, unless otherwise defined therein or
unless the context shall otherwise require.
SECTION 1.04. Terminology. All personal pronouns used
in this Agreement, whether used in the masculine, feminine or
neuter gender, shall include all other genders; the singular
shall include the plural and the plural shall include the
singular. Titles of Articles and Sections in this Agreement are
for convenience only, and neither limit nor amplify the
provisions of this Agreement.
SECTION 1.05. References. Unless otherwise indicated,
references in this Agreement to "Articles", "Exhibits",
"Schedules", and "Sections" are references to articles, exhibits,
schedules and sections hereof.
ARTICLE II
THE CREDITS
SECTION 2.01. Commitments to Make Loans. Each Bank
severally agrees, on the terms and conditions set forth herein,
to make Loans to the Borrower from time to time before the Final
Maturity Date; provided that, immediately after each such Loan is
made, the aggregate outstanding principal amount of Loans by such
Bank shall not exceed the amount of its Commitment, provided
further that the aggregate principal amount of all Loans, at any
one time outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time. Each Borrowing
under this Section shall be in an aggregate principal amount of
$5,000,000 or any larger multiple of $1,000,000 (except that any
such Borrowing may be in the aggregate amount of the Unused
Commitments, if any) and shall be made from the several Banks
ratably in proportion to their respective Commitments. Within
the foregoing limits, the Borrower may borrow under this Section,
repay or, to the extent permitted by Section 2.10, prepay Loans
under this Section at any time before the Final Maturity Date;
provided, however, (i) except for the initial Borrowing and the
Final Drawdown, the proceeds of any Borrowing shall be used
exclusively for the purpose of repaying Loans maturing on the
date of such Borrowing and for no other purpose; (ii) the ability
to reborrow may be limited by the provisions of Section 2.08(c)
hereof; (iii) each Borrowing shall be made from the several Banks
ratably in proportion to their respective Commitments; and (iv)
the Final Drawdown shall be made, if at all, on or before
December 2, 1996.
SECTION 2.02. Method of Borrowing Loans. (a) The
Borrower shall give the Agent notice in the form attached hereto
as Exhibit H (a "Notice of Borrowing") prior to 11:00 A.M.
(Atlanta, Georgia time) on the Domestic Business Day of each Base
Rate Borrowing, and at least 3 Euro-Dollar Business Days before
each Euro-Dollar Borrowing, specifying:
(i) the date of such Borrowing, which shall be a
Domestic Business Day in the case of a Base Rate Borrowing
or a Euro-Dollar Business Day in the case of a Euro-Dollar
Borrowing,
(ii) the aggregate amount of such Borrowing,
(iii) whether the Loans comprising such Borrowing are
to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the
duration of the Interest Period applicable thereto, subject
to the provisions of the definition of Interest Period;
provided, that if one or more Commitment Reduction Dates are
scheduled to occur during the Interest Period so selected,
and as a result thereof (but for this proviso) the Borrower
shall become obligated to prepay or repay all or any portion
of the Loans on any of such Commitment Reduction Dates
pursuant to Section 2.10, then a portion of such Euro-Dollar
Borrowing which is equal to the amount of the Loans that
would otherwise be so prepaid or repaid on any of such
Commitment Reduction Dates either (A) shall have applicable
thereto an Interest Period or Interest Periods, as selected
by the Borrower, ending on or before the Commitment
Reduction Date on which Loans corresponding in amount to
such portion would otherwise be prepaid or repaid, or (B)
shall instead be made as a Base Rate Borrowing.
(b) Upon receipt of a Notice of Borrowing, the Agent
shall promptly notify each Bank of the contents thereof and of
such Bank's ratable share of such Borrowing and such Notice of
Borrowing shall not thereafter be revocable by the Borrower.
(c) Not later than 11:00 A.M. (Atlanta, Georgia time)
on the date of each Euro-Dollar Borrowing, and not later than
2:00 P.M. (Atlanta, Georgia time) on the date of each Base Rate
Borrowing, each Bank shall (except as provided in subsection (d)
of this Section) make available its ratable share of such
Borrowing, in Federal or other funds immediately available in
Atlanta, Georgia, to the Agent at its address referred to in or
specified pursuant to Section 9.01. Unless the Agent determines
that any applicable condition specified in Article III has not
been satisfied, the Agent will make the funds so received from
the Banks available to the Borrower at the Agent's aforesaid
address. Unless the Agent receives notice from a Bank, at the
Agent's address referred to in Section 9.01, no later than
4:00 P.M. (local time at such address) on the Domestic Business
Day before the date of a Euro-Dollar Borrowing and no later than
12:00 P.M. (local time at such address) on the date of a Base
Rate Borrowing, stating that such Bank will not make a Loan in
connection with such Borrowing, the Agent shall be entitled to
assume that such Bank will make a Loan in connection with such
Borrowing and, in reliance on such assumption, the Agent may (but
shall not be obligated to) make available such Bank's ratable
share of such Borrowing to the Borrower for the account of such
Bank. If the Agent makes such Bank's ratable share available to
the Borrower and such Bank does not in fact make its ratable
share of such Borrowing available on such date, the Agent shall
be entitled to recover such Bank's ratable share from such Bank
or the Borrower (and for such purpose shall be entitled to charge
such amount to any account of the Borrower maintained with the
Agent), together with interest thereon for each day during the
period from the date of such Borrowing until such sum shall be
paid in full at a rate per annum equal to the rate at which the
Agent determines that it obtained (or could have obtained)
overnight Federal funds to cover such amount for each such day
during such period, provided that any such payment by the
Borrower of such Bank's ratable share and interest thereon shall
be without prejudice to any rights that the Borrower may have
against such Bank. If such Bank shall repay to the Agent such
corresponding amount, such amount so repaid shall constitute such
Bank's Loan included in such Borrowing for purposes of this
Agreement.
(d) If any Bank makes a new Loan hereunder on a day on
which the Borrower is to repay all or any part of an outstanding
Loan from such Bank, such Bank shall apply the proceeds of its
new Loan to make such repayment and only an amount equal to the
difference (if any) between the amount being borrowed and the
amount being repaid shall be made available by such Bank to the
Agent as provided in subsection (c) of this Section, or remitted
by the Borrower to the Agent as provided in Section 2.11, as the
case may be.
(e) Notwithstanding anything to the contrary contained
in this Agreement, no Euro-Dollar Borrowing may be made if there
shall have occurred a Default or an Event of Default, which
Default or Event of Default shall not have been cured or waived
in writing.
(f) In the event that a Notice of Borrowing fails to
specify whether the Loans comprising such Borrowing are to be
Base Rate Loans or Euro-Dollar Loans, such Loans shall be made as
Base Rate Loans. If the Borrower is otherwise entitled under
this Agreement to repay any Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new
Borrowing, and the Borrower fails to repay such Loans using its
own moneys and fails to give a Notice of Borrowing in connection
with such new Borrowing, a new Borrowing shall be deemed to be
made on the date such Loans mature in an amount equal to the
principal amount of the Loans so maturing, and the Loans
comprising such new Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained
herein, (i) there shall not be more than 6 different Interest
Periods applicable to Euro-Dollar Loans outstanding at the same
time (for which purpose Interest Periods described in different
numbered clauses of the definition of the term "Interest Period"
shall be deemed to be different Interest Periods even if they are
coterminous) and (ii) the proceeds of any Base Rate Borrowing
shall be applied first to repay the unpaid principal amount of
all Base Rate Loans (if any) outstanding immediately before such
Base Rate Borrowing.
SECTION 2.03. Notes. (a) The Loans of each Bank
shall be evidenced by a single Note payable to the order of such
Bank for the account of its Lending Office in an amount equal to
the original principal amount of such Bank's Commitment.
(b) Upon receipt of each Bank's Notes pursuant to
Section 3.01, the Agent shall deliver such Notes to such Bank.
Each Bank shall record, and prior to any transfer of its Notes
shall endorse on the schedule forming a part thereof appropriate
notations to evidence, the date, amount and maturity of, and
effective interest rate for, each Loan made by it, the date and
amount of each payment of principal made by the Borrower with
respect thereto and whether, in the case of such Bank's Note,
such Loan is a Base Rate Loan, or Euro-Dollar Loan, and such
schedule shall constitute rebuttable presumptive evidence of the
principal amount owing and unpaid on such Bank's Notes; provided
that the failure of any Bank to make, or any error in making, any
such recordation or endorsement shall not affect the obligation
of the Borrower hereunder or under the Notes or the ability of
any Bank to assign its Notes. Each Bank is hereby irrevocably
authorized by the Borrower so to endorse its Notes and to attach
to and make a part of any Note a continuation of any such
schedule as and when required.
SECTION 2.04. Maturity of Loans. Each Loan included
in any Borrowing shall mature, and the principal amount thereof
shall be due and payable, on the last day of the Interest Period
applicable to such Borrowing.
SECTION 2.05. Interest Rates. (a) "Applicable Margin"
means (i) for any Base Rate Loan, 0%; and (ii) for any Euro-
Dollar Loan, 0.50%.
(b) Each Base Rate Loan shall bear interest on the
outstanding principal amount thereof, for each day from the date
such Loan is made until it becomes due, at a rate per annum equal
to the Base Rate for such day plus the Applicable Margin. Such
interest shall be payable for each Interest Period on the last
day thereof. Any overdue principal of and, to the extent
permitted by applicable law, overdue interest on any Base Rate
Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the
outstanding principal amount thereof, for the Interest Period
applicable thereto, at a rate per annum equal to the sum of the
Applicable Margin plus the applicable Adjusted London Interbank
Offered Rate for such Interest Period; provided that if any Euro-
Dollar Loan shall, as a result of clause (1)(c) of the definition
of Interest Period, have an Interest Period of less than one
month, such Euro-Dollar Loan shall bear interest during such
Interest Period at the rate applicable to Base Rate Loans during
such period. Such interest shall be payable for each Interest
Period on the last day thereof and, if such Interest Period is
longer than 3 months, at intervals of 3 months after the first
day thereof.
The "Adjusted London Interbank Offered Rate" applicable
to any Interest Period means a rate per annum equal to the
quotient obtained (rounded upward, if necessary, to the next
higher 1/100th of 1%) by dividing (i) the applicable London
Interbank Offered Rate for such Interest Period by (ii) 1.00
minus the Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any
Euro-Dollar Loan means for the period of such Euro-Dollar Loan
the rate per annum determined on the basis of the rate for
deposits in Dollars of amounts equal or comparable to the
principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the
display designated as Page "3750" of the Telerate Service (or
such other page as may replace page 3750 of that service or such
other service or services as may be nominated by the British
Bankers' Association for the purpose of displaying London
interbank offered rates for U.S. dollar deposits), determined as
of 1:00 p.m. (New York time), 2 Euro-Dollar Business Days prior
to the first day of such Interest Period.
"Euro-Dollar Reserve Percentage" means for any day that
percentage (expressed as a decimal) which is in effect on such
day, as prescribed by the Board of Governors of the Federal
Reserve System (or any successor) for determining the maximum
reserve requirement for a member bank of the Federal Reserve
System in respect of "Eurocurrency liabilities" (or in respect of
any other category of liabilities which includes deposits by
reference to which the interest rate on Euro-Dollar Loans is
determined or any category of extensions of credit or other
assets which includes loans by a non-United States office of any
Bank to United States residents). The Adjusted London Interbank
Offered Rate shall be adjusted automatically on and as of the
effective date of any change in the Euro-Dollar Reserve
Percentage. Any overdue principal of and, to the extent
permitted by applicable law, overdue interest on any Euro-Dollar
Loan shall bear interest, payable on demand, for each day until
paid at a rate per annum equal to the Default Rate.
(d) The Agent shall determine each interest rate
applicable to the Loans hereunder. The Agent shall give prompt
notice to the Borrower and the Banks by telecopy of each rate of
interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
(e) After the occurrence and during the continuance of
a Default, the principal amount of the Loans (and, to the extent
permitted by applicable law, all accrued interest thereon) may,
at the election of the Required Banks, bear interest at the
Default Rate; provided, however, that automatically whether or
not the Required Banks elect to do so, any overdue principal of
and, to the extent permitted by law, overdue interest on any Loan
shall bear interest payable on demand, for each day until paid at
a rate per annum equal to the Default Rate.
SECTION 2.06. Fees. (a) The Borrower shall pay to
the Agent for the ratable account of each Bank a commitment fee
calculated at the rate of 0.075% per annum on the daily average
amount of such Bank's Unused Commitment. Such commitment fees
shall accrue from and including the Closing Date to but excluding
the Final Drawdown Date and shall be payable on each Commitment
Fee Payment Date and on the Final Drawdown Date; provided, that
should the Commitments be terminated at any time prior to the
Final Drawdown Date for any reason, the entire accrued and unpaid
commitment fee shall be paid on the date of such termination.
(b) On the Closing Date the Borrower shall pay to the
Agent for the ratable account of each Bank an up-front fee equal
to the product of: (i) such Bank's Commitment, times (ii) 0.05%.
(c) The Borrower shall pay to the Agent, for the
account and sole benefit of the Agent, such fees and other
amounts at such times as set forth in the Agent's Letter
Agreement.
SECTION 2.07. Optional Termination or Reduction of
Commitments. The Borrower may, upon at least 1 Domestic Business
Days' notice to the Agent, terminate at any time, or
proportionately reduce from time to time by an aggregate amount
of at least $5,000,000 or any larger multiple of $1,000,000, the
Commitments. If the Commitments are terminated in their
entirety, all accrued fees (as provided under Section 2.06) shall
be payable on the effective date of such termination.
SECTION 2.08. Mandatory Reduction and Termination of
Commitments. (a) The Commitments shall terminate on the Final
Maturity Date and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
(b) The aggregate amount of the Commitments shall be
reduced in sixteen (16) consecutive quarterly installments, each
in an amount equal to the Commitment Reduction Amount on each
Commitment Reduction Date.
(c) If the Borrower shall repay or prepay any Loans
other than with the proceeds of a new Borrowing under the
Commitments then there shall be a mandatory reduction of the
Commitments to an amount equal to the aggregate principal amount
of all Loans then outstanding (after giving effect to such
repayment or prepayment).
(d) The aggregate amount of the Commitments shall be
automatically reduced on the Final Drawdown Date to an amount
equal to the aggregate principal amount of all Loans then
outstanding (after giving effect to the Final Drawdown, if any).
(e) Each reduction of the Commitments shall be
applied to reduce the Commitments of the several Banks ratably.
No optional reduction of the Commitments pursuant to Section 2.07
or otherwise shall reduce the amount of any subsequent mandatory
reduction pursuant to this Section 2.08 and no mandatory
reduction of the Commitments pursuant to any paragraph of this
Section 2.08 shall reduce the amount of any subsequent mandatory
reduction of the Commitments pursuant to such paragraph or any
other paragraph of this Section 2.08.
SECTION 2.09. Optional Prepayments. (a) The Borrower
may, upon at least 1 Domestic Business Day's notice to the Agent,
prepay any Base Rate Borrowing in whole at any time, or from time
to time in part in amounts aggregating at least $5,000,000 or any
larger multiple of $1,000,000 by paying the principal amount to
be prepaid together with accrued interest thereon to the date of
prepayment. Each such optional prepayment shall be applied to
prepay ratably the Base Rate Loans of the several Banks included
in such Base Rate Borrowing.
(b) Except as provided in Section 8.02, the Borrower
may not prepay all or any portion of the principal amount of any
Euro-Dollar Loan prior to the maturity thereof.
(c) Upon receipt of a notice of prepayment pursuant to
this Section, the Agent shall promptly notify each Bank of the
contents thereof and of such Bank's ratable share of such
prepayment and such notice shall not thereafter be revocable by
the Borrower.
SECTION 2.10. Mandatory Prepayments. On each date on
which the Commitments are reduced pursuant to Section 2.07,
Section 2.08 or Section 2.09, the Borrower shall repay or prepay
such principal amount of the outstanding Loans, if any (together
with interest accrued thereon and any amounts due under Section
8.05(a)), as may be necessary so that after such payment the
aggregate unpaid principal amount of the Loans does not exceed
the aggregate amount of the Commitments as then reduced. Each
such payment or prepayment shall be applied to repay or prepay
ratably the Loans of the several Banks; provided that such
prepayment shall be applied to Loans outstanding on the date of
such prepayment in direct order of maturity.
SECTION 2.11. General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and
interest on, the Loans and of commitment fees hereunder, not
later than 11:00 A.M. (Atlanta, Georgia time) on the date when
due, in Federal or other funds immediately available in Atlanta,
Georgia, to the Agent at its address referred to in Section 9.01.
The Agent will promptly distribute to each Bank its ratable share
of each such payment received by the Agent for the account of the
Banks.
(b) Whenever any payment of principal of, or interest
on, the Base Rate Loans or of fees shall be due on a day which is
not a Domestic Business Day, the date for payment thereof shall
be extended to the next succeeding Domestic Business Day.
Whenever any payment of principal of, or interest on, the Euro-
Dollar Loans shall be due on a day which is not a Euro-Dollar
Business Day, the date for payment thereof shall be extended to
the next succeeding Euro-Dollar Business Day unless such Euro-
Dollar Business Day falls in another calendar month, in which
case the date for payment thereof shall be the next preceding
Euro-Dollar Business Day. If the date for any payment of
principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and
all other amounts to be made by the Borrower pursuant to this
Agreement with respect to any Loan or fee relating thereto shall
be paid without deduction for, and free from, any tax, imposts,
levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by
any taxing authority thereof or therein excluding in the case of
each Bank, taxes imposed on or measured by its net income, and
franchise taxes imposed on it, by the jurisdiction under the laws
of which such Bank is organized or any political subdivision
thereof and, in the case of each Bank, taxes imposed on its
income, and franchise taxes imposed on it, by the jurisdiction of
such Bank's applicable Lending Office or any political
subdivision thereof (all such non-excluded taxes, imposts,
levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the Borrower is required by
applicable law to make any such withholding or deduction of Taxes
with respect to any Loan or fee or other amount, the Borrower
shall pay such deduction or withholding to the applicable taxing
authority, shall promptly furnish to any Bank in respect of which
such deduction or withholding is made all receipts and other
documents evidencing such payment and shall pay to such Bank
additional amounts as may be necessary in order that the amount
received by such Bank after the required withholding or other
payment shall equal the amount such Bank would have received had
no such withholding or other payment been made. If no
withholding or deduction of Taxes are payable in respect of any
Loan or fee relating thereto, promptly after a request by a Bank
made in good faith, the Borrower shall furnish such Bank, a
certificate from each applicable taxing authority or an opinion
of counsel acceptable to such, in either case stating that such
payments are exempt from or not subject to withholding or
deduction of Taxes. If the Borrower fails to provide such
original or certified copy of a receipt evidencing payment of
Taxes or certificate(s) or opinion of counsel of exemption, the
Borrower hereby agrees to compensate such Bank for, and indemnify
them with respect to, the tax consequences of the Borrower's
failure to provide evidence of tax payments or tax exemption.
In the event any Bank receives a refund of any Taxes
paid by the Borrower pursuant to this Section 2.11, it will pay
to the Borrower the amount of such refund promptly upon receipt
thereof; provided, however, if at any time thereafter it is
required to return such refund, the Borrower shall promptly repay
to it the amount of such refund.
Without prejudice to the survival of any other
agreement of the Borrower hereunder, the agreements and
obligations of the Borrower contained in this Section 2.11 shall
be applicable with respect to any Participant, Assignee or other
Transferee, and any calculations required by such provisions (i)
shall be made based upon the circumstances of such Participant,
Assignee or other Transferee, and (ii) constitute a continuing
agreement and shall survive the termination of this Agreement and
the payment in full or cancellation of the Notes.
SECTION 2.12. Computation of Interest and Fees.
Interest on Base Rate Loans shall be computed on the basis of a
year of 360 days and paid for the actual number of days elapsed
(including the first day but excluding the last day). Interest
on Euro-Dollar Loans shall be computed on the basis of a year of
360 days and paid for the actual number of days elapsed,
calculated as to each Interest Period from and including the
first day thereof to but excluding the last day thereof.
Commitment fees and any other fees payable hereunder shall be
computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III
CONDITIONS TO BORROWINGS
SECTION 3.01. Conditions to First Borrowing. The
obligation of each Bank to make a Loan on the occasion of the
first Borrowing is subject to the satisfaction of the conditions
set forth in Section 3.02 and the following additional
conditions:
(a) receipt by the Agent from each of the parties
hereto of either (i) a duly executed counterpart of this
Agreement signed by such party or (ii) a facsimile
transmission stating that such party has duly executed a
counterpart of this Agreement and sent such counterpart to
the Agent;
(b) receipt by the Agent of a duly executed Note for
the account of each Bank complying with the provisions of
Section 2.03;
(c) receipt by the Agent of an opinion (together with
any opinions of local counsel relied on therein) of Wyche,
Burgess, Freeman & Parham, P.A., counsel for the Borrower,
dated as of the Closing Date, substantially in the form of
Exhibit B hereto and covering such additional matters
relating to the transactions contemplated hereby as the
Agent or any Bank may reasonably request;
(d) receipt by the Agent of an opinion of Womble
Carlyle Sandridge & Rice, PLLC, special counsel for the
Agent, dated as of the Closing Date, substantially in the
form of Exhibit C hereto and covering such additional
matters relating to the transactions contemplated hereby as
the Agent may reasonably request;
(e) receipt by the Agent of a certificate (the
"Closing Certificate"), dated the date of the first
Borrowing, substantially in the form of Exhibit D hereto,
signed by a principal financial officer of the Borrower, to
the effect that (i) no Default has occurred and is
continuing on the date of the first Borrowing and (ii) the
representations and warranties of the Borrower contained in
Article IV are true on and as of the date of the first
Borrowing hereunder;
(f) receipt by the Agent of all documents which the
Agent or any Bank may reasonably request relating to the
existence of the Borrower, the corporate authority for and
the validity of this Agreement and the Notes, and any other
matters relevant hereto, all in form and substance
satisfactory to the Agent, including without limitation a
certificate of incumbency of the Borrower (the "Officer's
Certificate"), signed by the Secretary or an Assistant
Secretary of the Borrower, substantially in the form of
Exhibit E hereto, certifying as to the names, true
signatures and incumbency of the officer or officers of the
Borrower authorized to execute and deliver the Loan
Documents, and certified copies of the following items: (i)
the Borrower's Certificate of Incorporation, (ii) the
Borrower's Bylaws, (iii) a certificate of the Secretary of
State of the State of South Carolina as to the good standing
of the Borrower as a South Carolina corporation, and (iv)
the action taken by the Board of Directors of the Borrower
authorizing the Borrower's execution, delivery and
performance of this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party; and
(g) receipt by the Agent of a Notice of Borrowing.
SECTION 3.02. Conditions to All Borrowings. The
obligation of each Bank to make a Loan on the occasion of each
Borrowing is subject to the satisfaction of the following
conditions:
(a) receipt by the Agent of Notice of Borrowing as
required by Section 2.02;
(b) the fact that, immediately before and after such
Borrowing, no Default shall have occurred and be continuing;
and
(c) the fact that, immediately after such Borrowing
(i) the aggregate outstanding principal amount of the Loans
of each Bank will not exceed the amount of its Commitment
and (ii) the aggregate outstanding principal amount of the
Loans will not exceed the aggregate amount of the
Commitments of all of the Banks as of such date.
Each Borrowing hereunder shall be deemed to be a representation
and warranty by the Borrower on the date of such Borrowing as to
the truth and accuracy of the facts specified in clauses (b) and
(c) of this Section. In addition, the initial Borrowing and the
Final Drawdown shall be deemed to be a representation and
warranty by the Borrower on the date of such Borrowing that the
representations and warranties of the Borrower contained in
Article IV of this Agreement are true on and as of the date of
such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01. Corporate Existence and Power. The
Borrower is a corporation duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
incorporation, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted.
SECTION 4.02. Corporate and Governmental
Authorization; No Contravention. The execution, delivery and
performance by the Borrower of this Agreement, the Notes and the
other Loan Documents (i) are within the Borrower's corporate
powers, (ii) have been duly authorized by all necessary corporate
action, (iii) require no action by or in respect of, or filing
with, any governmental body, agency or official, (iv) do not
contravene, or constitute a default under, any provision of
applicable law or regulation or of the certificate of
incorporation or by-laws of the Borrower or of any agreement,
judgment, injunction, order, decree or other instrument binding
upon the Borrower or any of its Subsidiaries, and (v) do not
result in the creation or imposition of any Lien on any asset of
the Borrower or any of its Subsidiaries.
SECTION 4.03. Binding Effect. This Agreement
constitutes a valid and binding agreement of the Borrower
enforceable in accordance with its terms, and the Notes and the
other Loan Documents, when executed and delivered in accordance
with this Agreement, will constitute valid and binding
obligations of the Borrower enforceable in accordance with their
respective terms, provided that the enforceability hereof and
thereof is subject in each case to general principles of equity
and to bankruptcy, insolvency and similar laws affecting the
enforcement of creditors' rights generally.
SECTION 4.04. Financial Information. (a) The
consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries as of January 3, 1996 and the related consolidated
statements of income, shareholders' equity and cash flows for the
Fiscal Year then ended, reported by KPMG Peat Marwick LLP, copies
of which have been delivered to each of the Banks, and the
unaudited consolidated financial statements of the Borrower for
the interim period ended April 3, 1996, copies of which have been
delivered to each of the Banks, fairly present, in conformity
with GAAP, the consolidated financial position of the Borrower
and its Consolidated Subsidiaries as of such dates and their
consolidated results of operations and cash flows for such
periods stated.
(b) Since January 3, 1996 there has been no event,
act, condition or occurrence having a Material Adverse Effect.
SECTION 4.05. Litigation. There is no action, suit or
proceeding pending, or to the knowledge of the Borrower
threatened, against or affecting the Borrower or any of its
Subsidiaries before any court or arbitrator or any governmental
body, agency or official which could have a Material Adverse
Effect or which in any manner draws into question the validity or
enforceability of, or could impair the ability of the Borrower to
perform its obligations under, this Agreement, the Notes or any
of the other Loan Documents.
SECTION 4.06. Compliance with ERISA. (a) The Borrower
and each member of the Controlled Group have fulfilled their
obligations under the minimum funding standards of ERISA and the
Code with respect to each Plan and are in compliance in all
material respects with the presently applicable provisions of
ERISA and the Code, and have not incurred any liability to the
PBGC or a Plan under Title IV of ERISA.
(b) Neither the Borrower nor any member of the
Controlled Group is or ever has been obligated to contribute to
any Multiemployer Plan.
SECTION 4.07. Taxes. There have been filed on behalf
of the Borrower and its Subsidiaries all Federal, state and local
income, excise, property and other tax returns which are required
to be filed by them and all taxes due pursuant to such returns or
pursuant to any assessment received by or on behalf of the
Borrower or any Subsidiary have been paid. The charges, accruals
and reserves on the books of the Borrower and its Subsidiaries in
respect of taxes or other governmental charges are, in the
opinion of the Borrower, adequate.
SECTION 4.08. Subsidiaries. Each of the Borrower's
Subsidiaries is a corporation duly organized, validly existing
and in good standing under the laws of its jurisdiction of
incorporation, is duly qualified to transact business in every
jurisdiction where, by the nature of its business, such
qualification is necessary, and has all corporate powers and all
governmental licenses, authorizations, consents and approvals
required to carry on its business as now conducted. The Borrower
has no Subsidiaries except those Subsidiaries listed on Schedule
4.08, which accurately sets forth each such Subsidiary's complete
name and jurisdiction of incorporation.
SECTION 4.09. Not an Investment Company. Neither the
Borrower nor any of its Subsidiaries is an "investment company"
within the meaning of the Investment Company Act of 1940, as
amended.
SECTION 4.10 Public Utility Holding Company Act.
Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an
"affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", as such terms are defined in the Public
Utility Holding Company Act of 1935, as amended.
SECTION 4.11. Ownership of Property; Liens. Each of
the Borrower and its Consolidated Subsidiaries has title to its
properties sufficient for the conduct of its business, and none
of such property is subject to any Lien except as permitted in
Section 5.08.
SECTION 4.12. No Default. Neither the Borrower nor
any of its Consolidated Subsidiaries is in default under or with
respect to any agreement, instrument or undertaking to which it
is a party or by which it or any of its property is bound which
could have or cause a Material Adverse Effect. No Default or
Event of Default has occurred and is continuing.
SECTION 4.13. Full Disclosure. All information
heretofore furnished by the Borrower to the Agent or any Bank for
purposes of or in connection with this Agreement or any
transaction contemplated hereby is, and all such information
hereafter furnished by the Borrower to the Agent or any Bank will
be, true, accurate and complete in every material respect or
based on reasonable estimates on the date as of which such
information is stated or certified. The Borrower has disclosed
to the Banks in writing any and all facts which could have or
cause a Material Adverse Effect.
SECTION 4.14. Environmental Matters. (a) Neither the
Borrower nor any Subsidiary is subject to any Environmental
Liability which could have or cause a Material Adverse Effect and
neither the Borrower nor any Subsidiary has been designated as a
potentially responsible party under CERCLA or under any state
statute similar to CERCLA. None of the Properties has been
identified on any current or proposed (i) National Priorities
List under 40 C.F.R. 300, (ii) CERCLIS list or (iii) any list
arising from a state statute similar to CERCLA.
(b) To the best of the Borrower's knowledge, no
Hazardous Materials have been used, produced, manufactured,
processed, treated, recycled, generated, stored, disposed of,
managed or otherwise handled at, or shipped or transported to or
from the Properties or were otherwise present at, on, in or under
the Properties, prior to the Borrower's acquisition, leasing or
other use or occupancy of the respective Properties. No Hazardous
Materials are being used, produced, manufactured, processed,
treated, recycled, generated, stored, disposed of, managed or
otherwise handled at, or shipped or transported to or from the
Properties or are otherwise present at, on, in or under the
Properties, or to the best of the knowledge of the Borrower, at
or from any adjacent site or facility, except for Hazardous
Materials, such as cleaning solvents, pesticides and other
materials used, produced, manufactured, processed, treated,
recycled, generated, stored, disposed of, and managed or
otherwise handled in minimal amounts in the ordinary course of
business and in compliance with all applicable Environmental
Requirements.
(c) The Borrower, and each of its Subsidiaries and
Affiliates, has procured all Environmental Authorizations
necessary for the conduct of its business except where the
failure to procure any Environmental Authorization would not,
alone or in the aggregate, have a Material Adverse Effect. The
Borrower and each of its Subsidiaries and Affiliates is in
compliance with all Environmental Requirements in connection with
the operation of the Properties and the Borrower's, and each of
its Subsidiary's and Affiliate's, respective businesses, except
where the failure to comply with any Environmental Requirement
would not, alone or in the aggregate, have a Material Adverse
Effect.
SECTION 4.15. Compliance with Laws. The Borrower and
each Subsidiary is in compliance with all applicable laws,
including, without limitation, all Environmental Laws, except
where any failure to comply with any such laws would not, alone
or in the aggregate, have a Material Adverse Effect.
SECTION 4.16. Capital Stock. All Capital Stock,
debentures, bonds, notes and all other securities of the Borrower
and its Subsidiaries presently issued and outstanding are validly
and properly issued in accordance with all applicable laws,
including, but not limited to, the "Blue Sky" laws of all
applicable states and the federal securities laws. The issued
shares of Capital Stock of the Borrower's Wholly Owned
Subsidiaries are owned by the Borrower free and clear of any Lien
or adverse claim. At least a majority of the issued shares of
capital stock of each of the Borrower's other Subsidiaries (other
than Wholly Owned Subsidiaries) is owned by the Borrower free and
clear of any Lien or adverse claim.
SECTION 4.17. Margin Stock. Neither the Borrower nor
any of its Subsidiaries is engaged principally, or as one of its
important activities, in the business of purchasing or carrying
any Margin Stock, and no part of the proceeds of any Loan will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin
Stock, or be used for any purpose which violates, or which is
inconsistent with, the provisions of Regulation X.
SECTION 4.18. Insolvency. After giving effect to the
execution and delivery of the Loan Documents and the making of
the Loans under this Agreement, the Borrower will not be
"insolvent," within the meaning of such term as used in O.C.G.A.
18-2-22 or as defined in 101 of Title 11 of the United States
Code or Section 2 of the Uniform Fraudulent Transfer Act, or any
other applicable state law pertaining to fraudulent transfers, as
each may be amended from time to time, or be unable to pay its
debts generally as such debts become due, or have an unreasonably
small capital to engage in any business or transaction, whether
current or contemplated.
ARTICLE V
COVENANTS
The Borrower agrees that, so long as any Bank has any
Commitment hereunder or any amount payable under any Note remains
unpaid:
SECTION 5.01. Information. The Borrower will deliver
to each of the Banks:
(a) as soon as available and in any event within 90
days after the end of each Fiscal Year, a consolidated
balance sheet of the Borrower and its Consolidated
Subsidiaries as of the end of such Fiscal Year and the
related consolidated statements of income, shareholders'
equity and cash flows for such Fiscal Year, setting forth in
each case in comparative form the figures for the previous
fiscal year, all certified by KPMG Peat Marwick LLP or other
independent public accountants of nationally recognized
standing, with such certification to be free of exceptions
and qualifications not acceptable to the Required Banks;
(b) as soon as available and in any event within 45
days after the end of each of the first 3 Fiscal Quarters of
each Fiscal Year, a consolidated balance sheet of the
Borrower and its Consolidated Subsidiaries as of the end of
such Fiscal Quarter, the related statement of income for
such Fiscal Quarter and for the portion of the Fiscal Year
ended at the end of such Fiscal Quarter and statement of
cash flows for the portion of the Fiscal Year ended at the
end of such Fiscal Quarter, setting forth in each case in
comparative form the figures for the corresponding Fiscal
Quarter and the corresponding portion of the previous Fiscal
Year, all certified (subject to normal year-end adjustments)
as to fairness of presentation, GAAP and consistency by the
chief financial officer or the chief accounting officer of
the Borrower;
(c) simultaneously with the delivery of each set of
financial statements referred to in clauses (a) and (b)
above, a certificate, substantially in the form of Exhibit F
(a "Compliance Certificate"), of the chief financial officer
or the chief accounting officer of the Borrower (i) setting
forth in reasonable detail the calculations required to
establish whether the Borrower was in compliance with the
requirements of Sections 5.03 through 5.08, inclusive, 5.11
and 5.21 on the date of such financial statements and (ii)
stating whether any Default exists on the date of such
certificate and, if any Default then exists, setting forth
the details thereof and the action which the Borrower is
taking or proposes to take with respect thereto;
(d) simultaneously with the delivery of each set of
annual financial statements referred to in clause (a) above,
a statement of the firm of independent public accountants
which reported on such statements to the effect that nothing
has come to their attention to cause them to believe that
any Default existed on the date of such financial
statements;
(e) within 5 Domestic Business Days after the Borrower
becomes aware of the occurrence of any Default, a
certificate of the chief financial officer or the chief
accounting officer of the Borrower setting forth the details
thereof and the action which the Borrower is taking or
proposes to take with respect thereto;
(f) promptly upon the mailing thereof to the
shareholders of the Borrower generally, copies of all
financial statements, reports and proxy statements so
mailed;
(g) promptly upon the filing thereof, copies of all
registration statements (other than the exhibits thereto and
any registration statements on Form S-8 or its equivalent)
and annual, quarterly or monthly reports which the Borrower
shall have filed with the Securities and Exchange
Commission;
(h) if and when the Borrower or any member of the
Controlled Group (i) gives or is required to give notice to
the PBGC of any "reportable event" (as defined in
Section 4043 of ERISA) with respect to any Plan which might
constitute grounds for a termination of such Plan under
Title IV of ERISA, or knows that the plan administrator of
any Plan has given or is required to give notice of any such
reportable event, a copy of the notice of such reportable
event given or required to be given to the PBGC;
(ii) receives notice of complete or partial withdrawal
liability under Title IV of ERISA, a copy of such notice; or
(iii) receives notice from the PBGC under Title IV of ERISA
of an intent to terminate or appoint a trustee to administer
any Plan, a copy of such notice;
(i) promptly after the Borrower knows of the
commencement thereof, notice of any litigation, dispute or
proceeding involving a claim against the Borrower and/or any
Subsidiary for $1,000,000 or more in excess of amounts
covered in full by applicable insurance; and
(j) from time to time such additional information
regarding the financial position or business of the Borrower
and its Subsidiaries as the Agent, at the request of any
Bank, may reasonably request.
SECTION 5.02. Inspection of Property, Books and
Records. The Borrower will (i) keep, and will cause each
Subsidiary to keep, proper books of record and account in which
full, true and correct entries in conformity with GAAP shall be
made of all dealings and transactions in relation to its business
and activities; and (ii) permit, and will cause each Subsidiary
to permit, representatives of any Bank at the Borrower's expense
after the occurrence of an Event of Default to visit and inspect
any of their respective properties, to examine and make abstracts
from any of their respective books and records and to discuss
their respective affairs, finances and accounts with their
respective officers, employees and independent public
accountants. The Borrower agrees to cooperate and assist in such
visits and inspections, in each case at such reasonable times and
as often as may reasonably be desired; provided that if neither
the Agent nor any Bank believes that neither a Default or Event
of Default has occurred, a Bank wishing to visit or inspect the
Borrower's Properties shall provide the Borrower with written
notice of its visit or inspection at least one Domestic Business
Day prior to such visit or inspection.
SECTION 5.03. Ratio of Consolidated Funded Debt to
Total Consolidated Capitalization. The ratio of Consolidated
Funded Debt to Total Consolidated Capitalization will at all
times be less than 0.40 to 1.00.
SECTION 5.04. Minimum Consolidated Net Worth.
Consolidated Net Worth will at no time be less than $225,000,000
plus the sum of (i) 100% of the cumulative Net Proceeds of
Capital Stock received during any period after March 31,1996,
calculated quarterly; and (ii) 50% of the cumulative Reported Net
Income of the Borrower and its Consolidated Subsidiaries during
any period after March 31, 1996 (taken as one accounting period),
calculated quarterly but excluding from such calculations of
Reported Net Income for purposes of this clause (ii) any quarter
in which the Consolidated Net Income of the Borrower and its
Consolidated Subsidiaries is negative.
SECTION 5.05. Fixed Charge Coverage. At the end of
each Fiscal Quarter, commencing with the Fiscal Quarter ending
March 31, 1996, the ratio of Income Available for Fixed Charges
for the Fiscal Quarter just ended and the immediately preceding
three Fiscal Quarters to Consolidated Fixed Charges for the
Fiscal Quarter just ended and the immediately preceding three
Fiscal Quarters shall not have been less than 2.00 to 1.00.
SECTION 5.06. Loans or Advances. Neither the Borrower
nor any of its Subsidiaries shall make loans or advances to any
Person except: (i) loans or advances to employees not exceeding
Five Hundred Thousand and no/100 Dollars ($500,000) in the
aggregate outstanding made in the ordinary course of business and
consistently with practices existing on March 31, 1996; (ii)
deposits required by government agencies or public utilities;
(iii) a deposit by the Borrower with the Borrower's primary food
supplier made in the ordinary course of business and consistently
with practices existing on March 31, 1996; and (iv) loans or
advances to Subsidiaries; provided that after giving effect to
the making of any loans, advances or deposits permitted by clause
(i), (ii), (iii) or (iv) of this Section, no Default shall have
occurred and be continuing.
SECTION 5.07. Investments. Neither the Borrower nor
any of its Subsidiaries shall make Investments in any Person
except as permitted by Section 5.06 and except Investments in
(i) direct obligations of the United States Government maturing
within one year, (ii) certificates of deposit issued by a
commercial bank whose credit is satisfactory to the Agent,
(iii) commercial paper rated A-1 or the equivalent thereof by
Standard & Poor's Corporation or P-1 or the equivalent thereof by
Moody's Investors Service, Inc. and in either case maturing
within 6 months after the date of acquisition; (iv) tender bonds
the payment of the principal of and interest on which is fully
supported by a letter of credit issued by a United States bank
whose long-term certificates of deposit are rated at least AA or
the equivalent thereof by Standard & Poor's Corporation and Aa or
the equivalent thereof by Moody's Investors Service, Inc.; (v)
the capital stock or other equity interests of a Person
constituting a Permitted Acquisition, provided that the aggregate
amount expended, assumed and incurred by the Borrower and its
Subsidiaries in connection with such Permitted Acquisition, when
aggregated with the total amount expended, assumed and incurred
by the Borrower and its Subsidiaries in connection with all other
Permitted Acquisitions occuring after March 31, 1996 does not
exceed ten percent (10%) of Consolidated Total Assets determined
at the end of the Fiscal Quarter immediately preceding such
Permitted Acquisition; and (vi) the capital stock or other equity
interests of any other Person (the "Investment Entity") not
otherwise permitted by the foregoing clauses of this Section 5.07
provided that: (1) the Investment Entity is in the same, similar
or related business that the Borrower and its Subsidiaries are
engaged on the Closing Date; (2) immediately after giving effect
to any such Investment in the Investment Entity the Borrower will
be in compliance with all provisions of this Agreement; and (3)
the aggregate amount expended, assumed and incurred by the
Borrower and its Subsidiaries in connection with such Investment
in the Investment Entity, when aggregated with the total amount
expended, assumed and incurred by the Borrower and its
Subsidiaries in connection with all other Investments in
Investment Entities occurring after March 31, 1996 pursuant to
this Section 5.07(vi) shall not exceed $5,000,000.
SECTION 5.08. Negative Pledge. Neither the Borrower
nor any Consolidated Subsidiary will create, assume or suffer to
exist any Lien on any asset now owned or hereafter acquired by
it, except:
(a) Liens existing on the date of this Agreement
securing Debt outstanding on the date of this Agreement in
an aggregate principal amount not exceeding $300,000;
(b) any Lien existing on any asset of any corporation
at the time such corporation becomes a Consolidated
Subsidiary and not created in contemplation of such event;
(c) any Lien on any asset securing Debt incurred or
assumed for the purpose of financing all or any part of the
cost of acquiring or constructing such asset, provided that
such Lien attaches to such asset concurrently with or within
18 months after the acquisition or completion of
construction thereof;
(d) any Lien on any asset of any corporation existing
at the time such corporation is merged or consolidated with
or into the Borrower or a Consolidated Subsidiary and not
created in contemplation of such event;
(e) any Lien existing on any asset prior to the
acquisition thereof by the Borrower or a Consolidated
Subsidiary and not created in contemplation of such
acquisition;
(f) Liens securing Debt owing by any Subsidiary to the
Borrower;
(g) any Lien arising out of the refinancing,
extension, renewal or refunding of any Debt secured by any
Lien permitted by any of the foregoing clauses of this
Section, provided that (i) such Debt is not secured by any
additional assets, and (ii) the amount of such Debt secured
by any such Lien is not increased;
(h) Liens incidental to the conduct of its business or
the ownership of its assets (including, without limitation,
mechanics and materialmen's liens) which (i) do not secure
Debt and (ii) do not in the aggregate materially detract
from the value of its assets or materially impair the use
thereof in the operation of its business;
(i) any Lien on Margin Stock; and
(j) Liens not otherwise permitted by the foregoing
clauses of this Section securing Debt (other than
indebtedness represented by the Notes) in an aggregate
principal amount at any time outstanding not to exceed 2% of
Consolidated Net Worth.
Provided, Liens permitted by the foregoing clauses (a) through
(j) shall at no time secure debt in an aggregate amount greater
than 5% of Consolidated Net Worth.
SECTION 5.09. Maintenance of Existence. The Borrower
shall, and shall cause each Subsidiary to, maintain its corporate
existence and carry on its business in substantially the same
manner and in substantially the same fields as such business is
now carried on and maintained, except through corporate
reorganization to the extent permitted by Section 5.11.
SECTION 5.10. Dissolution. Neither the Borrower nor
any of its Subsidiaries shall suffer or permit dissolution or
liquidation either in whole or in part, except through corporate
reorganization to the extent permitted by Section 5.11.
SECTION 5.11. Consolidations, Mergers and Sales of
Assets. The Borrower will not, nor will it permit any Subsidiary
to, consolidate or merge with or into, or sell, lease or
otherwise transfer all or any substantial part of its assets to,
any other Person, or discontinue or eliminate any business line
or segment, provided that (a) the Borrower may merge with another
Person if (i) such Person was organized under the laws of the
United States of America or one of its states, (ii) the Borrower
is the corporation surviving such merger and (iii) immediately
after giving effect to such merger, no Default shall have
occurred and be continuing, (b) Subsidiaries of the Borrower may
merge with one another or with the Borrower, provided that with
regard to any merger with the Borrower the conditions set forth
in Section 5.11(a) are satisfied, (c) A Subsidiary of the
Borrower may sell, lease or otherwise transfer all or any
substantial part of its assets to the Borrower or a Wholly Owned
Subsidiary of the Borrower; and (d) the foregoing limitation on
the sale, lease or other transfer of assets and on the
discontinuation or elimination of a business line or segment
shall not prohibit a transfer of assets or the discontinuance or
elimination of a business line or segment (in a single
transaction or in a series of related transactions) unless the
aggregate assets to be so transferred or utilized in a business
line or segment to be so discontinued, when combined with all
other assets transferred after the Closing Date and all other
assets utilized in all other business lines or segments
discontinued after the Closing Date (excluding transfers
permitted by Section 5.11(c)), constitutes more than ten percent
(10%) of Consolidated Total Assets determined at the end of the
Fiscal Quarter immediately preceding such transfer of assets or
discontinuance or elimination of a business line or segment.
SECTION 5.12. Use of Proceeds. The proceeds of the
initial Borrowing and the Final Drawdown shall be used by the
Borrower exclusively to repay indebtedness of the Borrower
existing on the Closing Date. In furtherance and not in
limitation of the foregoing, no portion of the proceeds of the
Loans will be used by the Borrower or any Subsidiary (i) except
for the proceeds of the initial Borrowing and the Final Drawdown,
for any purpose other than repaying Loans maturing on the date of
such Borrowing and for no other purpose; (ii) directly or
indirectly, for the purpose, whether immediate, incidental or
ultimate, of purchasing or carrying any Margin Stock, or
(iii) for any purpose in violation of any applicable law or
regulation.
SECTION 5.13. Compliance with Laws; Payment of Taxes.
The Borrower will, and will cause each of its Subsidiaries and
each member of the Controlled Group to, comply with applicable
laws (including but not limited to ERISA), regulations and
similar requirements of governmental authorities (including but
not limited to PBGC), except where the necessity of such
compliance is being contested in good faith through appropriate
proceedings diligently pursued. The Borrower will, and will
cause each of its Subsidiaries to, pay promptly when due all
taxes, assessments, governmental charges, claims for labor,
supplies, rent and other obligations which, if unpaid, might
become a lien against the property of the Borrower or any
Subsidiary, except liabilities being contested in good faith by
appropriate proceedings pursued in the ordinary course of
business and against which, if requested by the Agent, the
Borrower shall have set up reserves in accordance with GAAP.
SECTION 5.14. Insurance. The Borrower will maintain,
and will cause each of its Subsidiaries to maintain (either in
the name of the Borrower or in such Subsidiary's own name), with
financially sound and reputable insurance companies, insurance on
all its Property in at least such amounts and against at least
such risks as are usually insured against in the same general
area by companies of established repute engaged in the same or
similar business.
SECTION 5.15. Change in Fiscal Year. The Borrower
will not change its Fiscal Year without the consent of the
Required Banks.
SECTION 5.16. Maintenance of Property. The Borrower
shall, and shall cause each Subsidiary to, maintain all of its
properties and assets in good condition, repair and working
order, ordinary wear and tear excepted.
SECTION 5.17. Environmental Notices. The Borrower
shall furnish to the Banks and the Agent prompt written notice of
all Environmental Liabilities, pending, threatened or anticipated
Environmental Proceedings, Environmental Notices, Environmental
Judgments and Orders, and Environmental Releases at, on, in,
under or in any way affecting the Properties or any adjacent
property, and all facts, events, or conditions that could lead to
any of the foregoing.
SECTION 5.18. Environmental Matters. The Borrower and
its Subsidiaries will not, and will not permit any Third Party
to, use, produce, manufacture, process, treat, recycle, generate,
store, dispose of, manage at, or otherwise handle or ship or
transport to or from the Properties any Hazardous Materials
except for Hazardous Materials such as cleaning solvents,
pesticides and other similar materials used, produced,
manufactured, processed, treated, recycled, generated, stored,
disposed, managed or otherwise handled in minimal amounts in the
ordinary course of business and in compliance with all applicable
Environmental Requirements.
SECTION 5.19. Environmental Release. The Borrower
agrees that upon the occurrence of an Environmental Release at or
on any of the Properties it will act immediately to investigate
the extent of, and to take appropriate remedial action to
eliminate, such Environmental Release, whether or not ordered or
otherwise directed to do so by any Environmental Authority.
SECTION 5.20. Transactions with Affiliates. Neither
the Borrower nor any of its Subsidiaries shall enter into, or be
a party to, any transaction with any Affiliate of the Borrower or
such Subsidiary (which Affiliate is not the Borrower or a
Subsidiary), except as permitted by law and in the ordinary
course of business and pursuant to reasonable terms which are
fully disclosed to the Agent and the Banks, consented to in
writing by the Required Banks, and are no less favorable to
Borrower or such Subsidiary than would be obtained in a
comparable arm's length transaction with a Person which is not an
Affiliate.
SECTION 5.21. Debt. No Subsidiary of the Borrower
shall at any time incur, create, assume or permit to exist any
Debt except: (1) trade indebtedness incurred in the ordinary
course of business; (2) Debt payable to the Borrower that is
incurred by such Subsidiary pursuant to Section 5.06; and (3) a
Subsidiary may incur Debt, not otherwise permitted by the
foregoing clauses of this Section 5.21, in an aggregate principal
amount at any time outstanding not to exceed $5,000,000; provided
that the aggregate outstanding principal amount of Debt of all
Subsidiaries pursuant to this clause (3) of Section 5.21 shall at
no time exceed an amount equal to five percent (5%) of
Consolidated Net Worth.
ARTICLE VI
DEFAULTS
SECTION 6.01. Events of Default. If one or more of
the following events ("Events of Default") shall have occurred
and be continuing:
(a) the Borrower shall fail to pay when due any
principal of any Loan or shall fail to pay any interest on
any Loan within five Domestic Business Days after such
interest shall become due, or shall fail to pay any fee or
other amount payable hereunder within five Domestic Business
Days after such fee or other amount becomes due; or
(b) the Borrower shall fail to observe or perform any
covenant contained in Sections 5.02(ii), 5.03 to 5.12,
inclusive, or Section 5.15 or 5.21; or
(c) the Borrower shall fail to observe or perform any
covenant or agreement contained or incorporated by reference
in this Agreement (other than those covered by clause (a) or
(b) above) for thirty days after the earlier of (i) the
first day on which the Borrower has knowledge of such
failure or (ii) written notice thereof has been given to the
Borrower by the Agent at the request of any Bank; or
(d) any representation, warranty, certification or
statement made or deemed made by the Borrower in Article IV
of this Agreement or in any certificate, financial statement
or other document delivered pursuant to this Agreement shall
prove to have been incorrect or misleading in any material
respect when made (or deemed made); or
(e) the Borrower or any Subsidiary shall fail to make
any payment in respect of Debt outstanding (other than the
Notes) when due or within any applicable grace period; or
(f) any event or condition shall occur which results
in the acceleration of the maturity of Debt, aggregating in
excess of $5,000,000, outstanding of the Borrower or any
Subsidiary or the mandatory prepayment or purchase of such
Debt, aggregating in excess of $5,000,000, by the Borrower
(or its designee) or such Subsidiary (or its designee) prior
to the scheduled maturity thereof, or enables, after the
expiration of any applicable grace periods, the holders of
such Debt, aggregating in excess of $5,000,000, or any
Person acting on such holders' behalf to accelerate the
maturity thereof or require the mandatory prepayment or
purchase thereof prior to the scheduled maturity thereof,
without regard to whether such holders or other Person shall
have exercised or waived their right to do so; or
(g) the Borrower or any Subsidiary shall commence a
voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to itself or its
debts under any bankruptcy, insolvency or other similar law
now or hereafter in effect or seeking the appointment of a
trustee, receiver, liquidator, custodian or other similar
official of it or any substantial part of its property, or
shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary
case or other proceeding commenced against it, or shall make
a general assignment for the benefit of creditors, or shall
fail generally, or shall admit in writing its inability, to
pay its debts as they become due, or shall take any
corporate action to authorize any of the foregoing; or
(h) an involuntary case or other proceeding shall be
commenced against the Borrower or any Subsidiary seeking
liquidation, reorganization or other relief with respect to
it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the
appointment of a trustee, receiver, liquidator, custodian or
other similar official of it or any substantial part of its
property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of 60
days; or an order for relief shall be entered against the
Borrower or any Subsidiary under the federal bankruptcy laws
as now or hereafter in effect; or
(i) the Borrower or any member of the Controlled Group
shall fail to pay when due any material amount which it
shall have become liable to pay to the PBGC or to a Plan
under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the
Borrower, any member of the Controlled Group, any plan
administrator or any combination of the foregoing; or the
PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to
administer any such Plan or Plans or a proceeding shall be
instituted by a fiduciary of any such Plan or Plans to
enforce Section 515 or 4219(c)(5) of ERISA and such
proceeding shall not have been dismissed within 30 days
thereafter; or a condition shall exist by reason of which
the PBGC would be entitled to obtain a decree adjudicating
that any such Plan or Plans must be terminated; or the
Borrower or any other member of the Controlled Group shall
enter into, contribute or be obligated to contribute to,
terminate or incur any withdrawal liability with respect to,
a Multiemployer Plan; or
(j) one or more judgments or orders for the payment of
money in an aggregate amount in excess of $1,000,000 shall
be rendered against the Borrower or any Subsidiary and such
judgment or order shall continue unsatisfied and unstayed
for a period of 30 days; or
(k) a federal tax lien shall be filed against the
Borrower under Section 6323 of the Code or a lien of the
PBGC shall be filed against the Borrower or any Subsidiary
under Section 4068 of ERISA and in either case such lien
shall remain undischarged for a period of 25 days after the
date of filing; or
(l) (i) any Person or two or more Persons acting in
concert shall have acquired beneficial ownership (within the
meaning of Rule 13d-3 of the Securities and Exchange
Commission under the Securities Exchange Act of 1934) of 20%
or more of the outstanding shares of the voting stock of the
Borrower; or (ii) as of any date a majority of the Board of
Directors of the Borrower consists of individuals who were
not either (A) directors of the Borrower as of the
corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of
the Borrower of which a majority consisted of individuals
described in clause (A), or (C) selected or nominated to
become directors by the Board of Directors of the Borrower
of which a majority consisted of individuals described in
clause (A) and individuals described in clause (B); or
(m) the occurrence of any event, act or condition
which the Required Banks determine either does or has a
reasonable probability of causing a Material Adverse Effect.
then, and in every such event, the Agent shall (i) if requested
by the Required Banks, by notice to the Borrower terminate the
Commitments and they shall thereupon terminate, and (ii) if
requested by the Required Banks, by notice to the Borrower
declare the Notes (together with all accrued interest thereon)
and all other amounts payable hereunder and under the other Loan
Documents to be, and the Notes (together with all accrued
interest thereon) and all other amounts payable hereunder and
under the other Loan Documents shall thereupon become,
immediately due and payable without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by
the Borrower; provided that if any Event of Default specified in
clause (g) or (h) above occurs with respect to the Borrower,
without any notice to the Borrower or any other act by the Agent
or the Banks, the Commitments shall thereupon automatically
terminate and the Notes (together with accrued interest thereon)
and all other amounts payable hereunder and under the other Loan
Documents shall automatically become immediately due and payable
without presentment, demand, protest or other notice of any kind,
all of which are hereby waived by the Borrower. Notwithstanding
the foregoing, the Agent shall have available to it all other
remedies at law or equity, and shall exercise any one or all of
them at the request of the Required Banks.
SECTION 6.02. Notice of Default. The Agent shall give
notice to the Borrower of any Default under Section 6.01(c)
promptly upon being requested to do so by any Bank and shall
thereupon notify all the Banks thereof.
ARTICLE VII
THE AGENT
SECTION 7.01. Appointment, Powers and Immunities.
Each Bank hereby irrevocably appoints and authorizes the Agent to
act as its agent hereunder and under the other Loan Documents
with such powers as are specifically delegated to the Agent by
the terms hereof and thereof, together with such other powers as
are reasonably incidental thereto. The Agent: (a) shall have no
duties or responsibilities except as expressly set forth in this
Agreement and the other Loan Documents, and shall not by reason
of this Agreement or any other Loan Document be a trustee for any
Bank; (b) shall not be responsible to the Banks for any recitals,
statements, representations or warranties contained in this
Agreement or any other Loan Document, or in any certificate or
other document referred to or provided for in, or received by any
Bank under, this Agreement or any other Loan Document, or for the
validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document or any
other document referred to or provided for herein or therein or
for any failure by the Borrower to perform any of its obligations
hereunder or thereunder; (c) shall not be required to initiate or
conduct any litigation or collection proceedings hereunder or
under any other Loan Document except to the extent requested by
the Required Banks, and then only on terms and conditions
satisfactory to the Agent, and (d) shall not be responsible for
any action taken or omitted to be taken by it hereunder or under
any other Loan Document or any other document or instrument
referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or
willful misconduct. The Agent may employ agents and attorneys-in-
fact and shall not be responsible for the negligence or
misconduct of any such agents or attorneys-in-fact selected by it
with reasonable care. The provisions of this Article VII are
solely for the benefit of the Agent and the Banks, and the
Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and
duties under this Agreement and under the other Loan Documents,
the Agent shall act solely as agent of the Banks and does not
assume and shall not be deemed to have assumed any obligation
towards or relationship of agency or trust with or for the
Borrower. The duties of the Agent shall be ministerial and
administrative in nature, and the Agent shall not have by reason
of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
SECTION 7.02. Reliance by Agent. The Agent shall be
entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telefax,
telegram or cable) believed by it to be genuine and correct and
to have been signed or sent by or on behalf of the proper Person
or Persons, and upon advice and statements of legal counsel,
independent accountants or other experts selected by the Agent.
As to any matters not expressly provided for by this Agreement or
any other Loan Document, the Agent shall in all cases be fully
protected in acting, or in refraining from acting, hereunder and
thereunder in accordance with instructions signed by the Required
Banks, and such instructions of the Required Banks in any action
taken or failure to act pursuant thereto shall be binding on all
of the Banks.
SECTION 7.03. Defaults. The Agent shall not be deemed
to have knowledge of the occurrence of a Default or an Event of
Default (other than the non-payment of principal of or interest
on the Loans) unless the Agent has received notice from a Bank or
the Borrower specifying such Default or Event of Default and
stating that such notice is a "Notice of Default". In the event
that the Agent receives such a notice of the occurrence of a
Default or an Event of Default, the Agent shall give prompt
notice thereof to the Banks. The Agent shall give each Bank
prompt notice of each non-payment of principal of or interest on
the Loans, whether or not it has received any notice of the
occurrence of such non-payment. The Agent shall (subject to
Section 9.05) take such action with respect to such Default or
Event of Default as shall be directed by the Required Banks,
provided that, unless and until the Agent shall have received
such directions, the Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with
respect to such Default or Event of Default as it shall deem
advisable in the best interests of the Banks.
SECTION 7.04. Rights of Agent and its Affiliates as a
Bank. With respect to any Loan made by an Affiliate of Wachovia,
such Affiliate (and Wachovia if it becomes a Bank hereunder) in
its capacity as a Bank hereunder, shall have the same rights and
powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of the Agent (or in Wachovia's
case, acting as the Agent), and the term "Bank" or "Banks" shall,
unless the context otherwise indicates, include such Affiliate of
Wachovia (or Wachovia, if it becomes a Bank hereunder) in its
individual capacity. Such Affiliate and the Agent may (without
having to account therefor to any Bank) accept deposits from,
lend money to and generally engage in any kind of banking, trust
or other business with the Borrower (and any of its Affiliates)
as if it were not an Affiliate of the Agent or acting as the
Agent, as the case may be, and such Affiliate and the Agent may
accept fees and other consideration from the Borrower (in
addition to any agency fees and arrangement fees heretofore
agreed to between the Borrower and the Agent) for services in
connection with this Agreement or any other Loan Document or
otherwise without having to account for the same to the Banks.
SECTION 7.05. Indemnification. Each Bank severally
agrees to indemnify the Agent, to the extent the Agent shall not
have been reimbursed by the Borrower, ratably in accordance with
its Commitment, for any and all liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses
(including, without limitation, counsel fees and disbursements)
or disbursements of any kind and nature whatsoever which may be
imposed on, incurred by or asserted against the Agent in any way
relating to or arising out of this Agreement or any other Loan
Document or any other documents contemplated by or referred to
herein or therein or the transactions contemplated hereby or
thereby (excluding, unless an Event of Default has occurred and
is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or
the enforcement of any of the terms hereof or thereof or any such
other documents; provided, however, that no Bank shall be liable
for any of the foregoing to the extent they arise from the gross
negligence or willful misconduct of the Agent. If any indemnity
furnished to the Agent for any purpose shall, in the opinion of
the Agent, be insufficient or become impaired, the Agent may call
for additional indemnity and cease, or not commence, to do the
acts indemnified against until such additional indemnity is
furnished.
SECTION 7.06. CONSEQUENTIAL DAMAGES. THE AGENT SHALL
NOT BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY
OTHER PERSON OR ENTITY FOR ANY PUNITIVE, EXEMPLARY OR
CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A RESULT OF THIS
AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07. Payee of Note Treated as Owner. The
Agent may deem and treat the payee of any Note as the owner
thereof for all purposes hereof unless and until a written notice
of the assignment or transfer thereof shall have been filed with
the Agent and the provisions of Section 9.07(c) have been
satisfied. Any requests, authority or consent of any Person who
at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding
on any subsequent holder, transferee or assignee of that Note or
of any Note or Notes issued in exchange therefor or replacement
thereof.
SECTION 7.08. Non-Reliance on Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance
on the Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit
analysis of the Borrower and decision to enter into this
Agreement and that it will, independently and without reliance
upon the Agent or any other Bank, and based on such documents and
information as it shall deem appropriate at the time, continue to
make its own analysis and decisions in taking or not taking
action under this Agreement or any of the other Loan Documents.
The Agent shall not be required to keep itself (or any Bank)
informed as to the performance or observance by the Borrower of
this Agreement or any of the other Loan Documents or any other
document referred to or provided for herein or therein or to
inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and
information expressly required to be furnished to the Banks by
the Agent hereunder or under the other Loan Documents, the Agent
shall not have any duty or responsibility to provide any Bank
with any credit or other information concerning the affairs,
financial condition or business of the Borrower or any other
Person (or any of their Affiliates) which may come into the
possession of the Agent.
SECTION 7.09. Failure to Act. Except for action
expressly required of the Agent hereunder or under the other Loan
Documents, the Agent shall in all cases be fully justified in
failing or refusing to act hereunder and thereunder unless it
shall receive further assurances to its satisfaction by the Banks
of their indemnification obligations under Section 7.05 against
any and all liability and expense which may be incurred by the
Agent by reason of taking, continuing to take, or failing to take
any such action.
SECTION 7.10. Resignation or Removal of Agent.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by giving notice
thereof to the Banks and the Borrower and the Agent may be
removed at any time with or without cause by the Required Banks.
Upon any such resignation or removal, the Required Banks shall
have the right to appoint a successor Agent. If no successor
Agent shall have been so appointed by the Required Banks and
shall have accepted such appointment within 30 days after the
retiring Agent's notice of resignation or the Required Banks'
removal of the retiring Agent, then the retiring Agent may, on
behalf of the Banks, appoint a successor Agent. Any successor
Agent shall be a bank which has a combined capital and surplus of
at least $500,000,000. Upon the acceptance of any appointment as
Agent hereunder by a successor Agent, such successor Agent shall
thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and
obligations hereunder. After any retiring Agent's resignation or
removal hereunder as Agent, the provisions of this Article VII
shall continue in effect for its benefit in respect of any
actions taken or omitted to be taken by it while it was acting as
the Agent hereunder.
ARTICLE VIII
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01. Basis for Determining Interest Rate
Inadequate or Unfair. If on or prior to the first day of any
Interest Period:
(a) the Agent determines that deposits in Dollars (in
the applicable amounts) are not being offered in the
relevant market for such Interest Period, or
(b) the Required Banks advise the Agent that the
London Interbank Offered Rate as determined by the Agent
will not adequately and fairly reflect the cost to such
Banks of funding the relevant type of Euro-Dollar Loans for
such Interest Period,
the Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist,
the obligations of the Banks to make the type of Euro-Dollar
Loans specified in such notice shall be suspended. Unless the
Borrower notifies the Agent at least 2 Domestic Business Days
before the date of any Borrowing of such type of Euro-Dollar
Loans for which a Notice of Borrowing has previously been given
that it elects not to borrow on such date, such Borrowing shall
instead be made as a Base Rate Borrowing.
SECTION 8.02. Illegality. If, after the date hereof,
the adoption of any applicable law, rule or regulation, or any
change in any existing or future law, rule or regulation, or any
change in the interpretation or administration thereof by any
governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof (any such
authority, bank or agency being referred to as an "Authority" and
any such event being referred to as a "Change of Law"), or
compliance by any Bank (or its Lending Office) with any request
or directive (whether or not having the force of law) of any
Authority shall make it unlawful or impossible for any Bank (or
its Lending Office) to make, maintain or fund its Euro-Dollar
Loans and such Bank shall so notify the Agent, the Agent shall
forthwith give notice thereof to the other Banks and the
Borrower, whereupon until such Bank notifies the Borrower and the
Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar
Loans shall be suspended. Before giving any notice to the Agent
pursuant to this Section, such Bank shall designate a different
Lending Office if such designation will avoid the need for giving
such notice and will not, in the judgment of such Bank, be
otherwise disadvantageous to such Bank. If such Bank shall
determine that it may not lawfully continue to maintain and fund
any of its outstanding Euro-Dollar Loans to maturity and shall so
specify in such notice, the Borrower shall immediately prepay in
full the then outstanding principal amount of each Euro-Dollar
Loan of such Bank, together with accrued interest thereon and any
amount due such Bank pursuant to Section 8.05(a). Concurrently
with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such
Bank (on which interest and principal shall be payable
contemporaneously with the related Euro-Dollar Loans of the other
Banks), and such Bank shall make such a Base Rate Loan.
SECTION 8.03. Increased Cost and Reduced Return. (a)
If after the date hereof, a Change of Law or compliance by any
Bank (or its Lending Office) with any request or directive
(whether or not having the force of law) of any Authority:
(i) shall subject any Bank (or its Lending Office) to
any tax, duty or other charge with respect to its Euro-
Dollar Loans, its Notes or its obligation to make Euro-
Dollar Loans, or shall change the basis of taxation of
payments to any Bank (or its Lending Office) of the
principal of or interest on its Euro-Dollar Loans or any
other amounts due under this Agreement in respect of its
Euro-Dollar Loans or its obligation to make Euro-Dollar
Loans (except for changes in the rate of tax on the overall
net income of such Bank or its Lending Office imposed by the
jurisdiction in which such Bank's principal executive office
or Lending Office is located); or
(ii) shall impose, modify or deem applicable any
reserve, special deposit or similar requirement (including,
without limitation, any such requirement imposed by the
Board of Governors of the Federal Reserve System, but
excluding with respect to any Euro-Dollar Loan any such
requirement included in an applicable Euro-Dollar Reserve
Percentage against assets of, deposits with or for the
account of, or credit extended by, any Bank (or its Lending
Office)); or
(iii) shall impose on any Bank (or its Lending Office)
or on the United States market for certificates of deposit
or the London interbank market any other condition affecting
its Euro-Dollar Loans, its Notes or its obligation to make
Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to
such Bank (or its Lending Office) of making or maintaining any
Euro-Dollar Loan, or to reduce the amount of any sum received or
receivable by such Bank (or its Lending Office) under this
Agreement or under its Notes with respect thereto, by an amount
deemed by such Bank to be material, then, within 15 days after
demand by such Bank (with a copy to the Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will
compensate such Bank for such increased cost or reduction;
provided that such Bank has furnished the Borrower (with a copy
to the Agent) written notice of such Change of Law or such
request or directive of an Authority within 90 days after the
Bank obtains knowledge of such Change of Law, request or
directive.
(b) If any Bank shall have determined that after the
date hereof the adoption of any applicable law, rule or
regulation regarding capital adequacy, or any change in any
existing or future law, rule or regulation, or any change in the
interpretation or administration thereof, or compliance by any
Bank (or its Lending Office) with any request or directive
regarding capital adequacy (whether or not having the force of
law) of any Authority, has or would have the effect of reducing
the rate of return on such Bank's capital as a consequence of its
obligations hereunder to a level below that which such Bank could
have achieved but for such adoption, change or compliance (taking
into consideration such Bank's policies with respect to capital
adequacy) by an amount deemed by such Bank to be material, then
from time to time, within 15 days after demand by such Bank, the
Borrower shall pay to such Bank such additional amount or amounts
as will compensate such Bank for such reduction; provided that
such Bank has furnished the Borrower (with a copy to the Agent)
written notice of such additional amount or amounts within 90
days after the Bank obtains knowledge of such reduction on the
rate of return on such Bank's capital.
(c) Each Bank will promptly notify the Borrower and the
Agent of any event of which it has knowledge, occurring after the
date hereof, which will entitle such Bank to compensation
pursuant to this Section and will designate a different Lending
Office if such designation will avoid the need for, or reduce the
amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A
certificate of any Bank claiming compensation under this Section
and setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of manifest
error. In determining such amount, such Bank may use any
reasonable averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be
applicable with respect to any Participant, Assignee or other
Transferee, and any calculations required by such provisions
shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
SECTION 8.04. Base Rate Loans or Other Euro-Dollar
Loans Substituted for Affected Euro-Dollar Loans. If (i) the
obligation of any Bank to make or maintain Euro-Dollar Loans has
been suspended pursuant to Section 8.02 or (ii) any Bank has
demanded compensation under Section 8.03, and the Borrower shall,
by at least 5 Euro-Dollar Business Days' prior notice to such
Bank through the Agent, have elected that the provisions of this
Section shall apply to such Bank, then, unless and until such
Bank notifies the Borrower that the circumstances giving rise to
such suspension or demand for compensation no longer apply:
(a) all Loans which would otherwise be made by such
Bank as Euro-Dollar Loans, shall be made instead as Base
Rate Loans, (in such case interest and principal on such
Loans shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans have been
repaid, all payments of principal which would otherwise be
applied to repay such Euro-Dollar Loans shall be applied to
repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of
this Section shall apply to any Bank, the Borrower shall remain
liable for, and shall pay to such Bank as provided herein, all
amounts due such Bank under Section 8.03 in respect of the period
preceding the date of conversion of such Bank's Loans resulting
from the Borrower's election.
SECTION 8.05. Compensation. Upon the request of any
Bank, delivered to the Borrower and the Agent, the Borrower shall
pay to such Bank such amount or amounts as shall compensate such
Bank for any loss, cost or expense incurred by such Bank as a
result of:
(a) any payment or prepayment (pursuant to Section 2.09,
Section 2.10, Section 8.02 or otherwise) of a Euro-Dollar Loan on
a date other than the last day of an Interest Period for such
Euro-Dollar Loan;
(b) any failure by the Borrower to prepay a Euro-Dollar
Loan on the date for such prepayment specified in the relevant
notice of prepayment hereunder; or
(c) any failure by the Borrower to borrow a Euro-Dollar
Loan on the date for the Euro-Dollar Borrowing of which such Euro-
Dollar Loan is a part specified in the applicable Notice of
Borrowing delivered pursuant to Section 2.02;
such compensation to include, without limitation, an amount equal
to the excess, if any, of (x) the amount of interest which would
have accrued on the amount so paid or prepaid or not prepaid or
borrowed for the period from the date of such payment, prepayment
or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the
case of a failure to prepay or borrow, the Interest Period for
such Euro-Dollar Loan which would have commenced on the date of
such failure to prepay or borrow) at the applicable rate of
interest (including, without limitation, the Applicable Margin)
for such Euro-Dollar Loan provided for herein over (y) the amount
of interest (as reasonably determined by such Bank) such Bank
would have paid on deposits in Dollars of comparable amounts
having terms comparable to such period placed with it by leading
banks in the London interbank market.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Notices. All notices, requests and
other communications to any party hereunder shall be in writing
(including facsimile transmission or similar writing) and shall
be given to such party at its address or telecopy number set
forth on the signature pages hereof or such other address or
telecopy number as such party may hereafter specify for the
purpose by notice to each other party. Each such notice, request
or other communication shall be effective (i) if given by
telecopier, when such telecopy is transmitted to the telecopy
number specified in this Section and the telecopy machine used by
the sender provides a written confirmation that such telecopy has
been so transmitted or receipt of such telecopy transmission is
otherwise confirmed, (ii) if given by mail, 72 hours after such
communication is deposited in the mails with first class postage
prepaid, addressed as aforesaid, and (iii) if given by any other
means, when delivered at the address specified in this Section;
provided that notices to the Agent under Article II or
Article VIII shall not be effective until received.
SECTION 9.02. No Waivers. No failure or delay by the
Agent or any Bank in exercising any right, power or privilege
hereunder or under any Note or other Loan Document shall operate
as a waiver thereof nor shall any single or partial exercise
thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 9.03. Expenses; Documentary Taxes;
Indemnification. (a) The Borrower shall pay (i) all reasonable
out-of-pocket expenses of the Agent, including reasonable fees
and disbursements of special counsel for the Banks and the Agent,
in connection with the preparation of this Agreement and the
other Loan Documents, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or
alleged Default hereunder or thereunder and (ii) if a Default
occurs, all reasonable out-of-pocket expenses incurred by the
Agent or any Bank, including reasonable fees and disbursements of
counsel, in connection with such Default and collection and other
enforcement proceedings resulting therefrom, including reasonable
out-of-pocket expenses incurred in enforcing this Agreement and
the other Loan Documents.
(b) The Borrower shall indemnify the Agent and each
Bank against any transfer taxes, documentary taxes, assessments
or charges made by any Authority by reason of the execution and
delivery of this Agreement or the other Loan Documents.
(c) The Borrower shall indemnify the Agent, the Banks
and each Affiliate thereof and their respective directors,
officers, employees and agents from, and hold each of them
harmless against, any and all losses, liabilities, claims or
damages to which any of them may become subject, insofar as such
losses, liabilities, claims or damages arise out of or result
from any actual or proposed use by the Borrower of the proceeds
of any extension of credit by any Bank hereunder or breach by the
Borrower of this Agreement or any other Loan Document or from
investigation, litigation (including, without limitation, any
actions taken by the Agent or any of the Banks to enforce this
Agreement or any of the other Loan Documents) or other proceeding
(including, without limitation, any threatened investigation or
proceeding) relating to the foregoing, and the Borrower shall
reimburse the Agent and each Bank, and each Affiliate thereof and
their respective directors, officers, employees and agents, upon
demand for any expenses (including, without limitation, legal
fees) incurred in connection with any such investigation or
proceeding; but excluding any such losses, liabilities, claims,
damages or expenses incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified.
SECTION 9.04. Setoffs; Sharing of Set-Offs. (a) The
Borrower hereby grants to each Bank, as security for the full and
punctual payment and performance of the obligations of the
Borrower under this Agreement, a continuing lien on and security
interest in all deposits and other sums credited by or due from
such Bank to the Borrower or subject to withdrawal by the
Borrower; and regardless of the adequacy of any collateral or
other means of obtaining repayment of such obligations, each Bank
may at any time upon or after the occurrence of any Event of
Default, and without notice to the Borrower, set off the whole or
any portion or portions of any or all such deposits and other
sums against such obligations, whether or not any other Person or
Persons could also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising
any right of set-off or counterclaim or otherwise, receive
payment of a proportion of the aggregate amount of principal and
interest owing with respect to the Notes held by it which is
greater than the proportion received by any other Bank in respect
of the aggregate amount of all principal and interest owing with
respect to the Notes held by such other Bank, the Bank receiving
such proportionately greater payment shall purchase such
participations in the Notes held by the other Banks owing to such
other Banks, and/or such other adjustments shall be made, as may
be required so that all such payments of principal and interest
with respect to the Notes held by the Banks owing to such other
Banks shall be shared by the Banks pro rata; provided that (i)
nothing in this Section shall impair the right of any Bank to
exercise any right of set-off or counterclaim it may have and to
apply the amount subject to such exercise to the payment of
indebtedness of the Borrower other than its indebtedness under
the Notes, and (ii) if all or any portion of such payment
received by the purchasing Bank is thereafter recovered from such
purchasing Bank, such purchase from each other Bank shall be
rescinded and such other Bank shall repay to the purchasing Bank
the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Bank's
ratable share (according to the proportion of (x) the amount of
such other Bank's required repayment to (y) the total amount so
recovered from the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the
total amount so recovered. The Borrower agrees, to the fullest
extent it may effectively do so under applicable law, that any
holder of a participation in a Note, whether or not acquired
pursuant to the foregoing arrangements, may exercise rights of
set-off or counterclaim and other rights with respect to such
participation as fully as if such holder of a participation were
a direct creditor of the Borrower in the amount of such
participation.
SECTION 9.05. Amendments and Waivers. (a) Any
provision of this Agreement, the Notes or any other Loan
Documents may be amended or waived if, but only if, such
amendment or waiver is in writing and is signed by the Borrower
and the Required Banks (and, if the rights or duties of the Agent
are affected thereby, by the Agent); provided that no such
amendment or waiver shall, unless signed by all the Banks, (i)
change the Commitment of any Bank or subject any Bank to any
additional obligation, (ii) change the principal of or rate of
interest on any Loan or any fees hereunder, (iii) change the date
fixed for any payment of principal of or interest on any Loan or
any fees hereunder, (iv) change the amount of principal, interest
or fees due on any date fixed for the payment thereof, (v) change
the percentage of the Commitments or of the aggregate unpaid
principal amount of the Notes, or the percentage of Banks, which
shall be required for the Banks or any of them to take any action
under this Section or any other provision of this Agreement,
(vi) change the manner of application of any payments made under
this Agreement or the Notes, (vii) release or substitute all or
any substantial part of the collateral (if any) held as security
for the Loans, or (viii) release any guaranty given to support
payment of the Loans.
(b) The Borrower will not solicit, request or
negotiate for or with respect to any proposed waiver or amendment
of any of the provisions of this Agreement unless each Bank shall
be informed thereof by the Borrower and shall be afforded an
opportunity of considering the same and shall be supplied by the
Borrower with sufficient information to enable it to make an
informed decision with respect thereto. Executed or true and
correct copies of any waiver or consent effected pursuant to the
provisions of this Agreement shall be delivered by the Borrower
to each Bank forthwith following the date on which the same shall
have been executed and delivered by the requisite percentage of
Banks. The Borrower will not, directly or indirectly, pay or
cause to be paid any remuneration, whether by way of supplemental
or additional interest, fee or otherwise, to any Bank (in its
capacity as such) as consideration for or as an inducement to the
entering into by such Bank of any waiver or amendment of any of
the terms and provisions of this Agreement unless such
remuneration is concurrently paid, on the same terms, ratably to
all such Banks.
SECTION 9.06. Margin Stock Collateral. Each of the
Banks represents to the Agent and each of the other Banks that it
in good faith is not, directly or indirectly (by negative pledge
or otherwise), relying upon any Margin Stock as collateral in the
extension or maintenance of the credit provided for in this
Agreement.
SECTION 9.07. Successors and Assigns. (a) The
provisions of this Agreement shall be binding upon and inure to
the benefit of the parties hereto and their respective successors
and assigns; provided that the Borrower may not assign or
otherwise transfer any of its rights under this Agreement.
(b) Any Bank may at any time sell to one or more
Persons (each a "Participant") participating interests in any
Loan owing to such Bank, any Note held by such Bank, any
Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a
participating interest to a Participant, such Bank's obligations
under this Agreement shall remain unchanged, such Bank shall
remain solely responsible for the performance thereof, such Bank
shall remain the holder of any such Note for all purposes under
this Agreement, and the Borrower and the Agent shall continue to
deal solely and directly with such Bank in connection with such
Bank's rights and obligations under this Agreement. In no event
shall a Bank that sells a participation be obligated to the
Participant to take or refrain from taking any action hereunder
except that such Bank may agree that it will not (except as
provided below), without the consent of the Participant, agree to
(i) the change of any date fixed for the payment of principal of
or interest on the related Loan or Loans, (ii) the change of the
amount of any principal, interest or fees due on any date fixed
for the payment thereof with respect to the related Loan or
Loans, (iii) the change of the principal of the related Loan or
Loans, (iv) any change in the rate at which either interest is
payable thereon or (if the Participant is entitled to any part
thereof) commitment fee is payable hereunder from the rate at
which the Participant is entitled to receive interest or
commitment fee (as the case may be) in respect of such
participation, (v) the release or substitution of all or any
substantial part of the collateral (if any) held as security for
the Loans, or (vi) the release of any guaranty given to support
payment of the Loans. Each Bank selling a participating interest
in any Loan, Note, Commitment or other interest under this
Agreement shall, within 10 Domestic Business Days of such sale,
provide the Borrower and the Agent with written notification
stating that such sale has occurred and identifying the
Participant and the interest purchased by such Participant. The
Borrower agrees that each Participant shall be entitled to the
benefits of Article VIII with respect to its participation in
Loans outstanding from time to time.
(c) Any Bank may at any time assign to one or more
banks or financial institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations under
this Agreement, the Notes and the other Loan Documents, and such
Assignee shall assume all such rights and obligations, pursuant
to an Assignment and Acceptance in the form attached hereto as
Exhibit G, executed by such Assignee, such transferor Bank and
the Agent (and, in the case of an Assignee that is not then a
Bank or an Affiliate of a Bank, by the Borrower); provided that
(i) no interest may be sold by a Bank pursuant to this paragraph
(c) unless the Assignee shall agree to assume a ratably
equivalent portion of the transferor Bank's Commitment, (ii) the
amount of the Commitment being assigned to the Assignee pursuant
to such assignment shall be equal to $10,000,000 (or any larger
multiple of $5,000,000, except that any such assignment may be in
the aggregate amount of such transferor Bank's Commitment),
(iii) no interest may be sold by a Bank pursuant to this
paragraph (c) to any Assignee that is not then a Bank or an
Affiliate of a Bank without the consent of the Borrower, which
consent shall not be unreasonably withheld. The Borrower's
consent shall not be required with regard to any assignment: (1)
occurring during the continuance of a Default; or (2) to a Bank
or to an Affiliate of a Bank. In the event that: (1) an
assignment is to a bank or financial institution that is neither
a Bank or an Affiliate of a Bank; (2) the assignment is made
prior to the occurrence of a Default; and (3) the assignment
results in the Commitment of a Bank that is a party to the Credit
Agreement on the Closing Date being less than fifty percent (50%)
of such Bank's Commitment on the Closing Date, the Borrower may
withhold its consent to such assignment in its sole and absolute
discretion. Upon (A) execution of the Assignment and Acceptance
by such transferor Bank, such Assignee, the Agent and (if
applicable) the Borrower, (B) delivery of an executed copy of the
Assignment and Acceptance to the Borrower and the Agent,
(C) payment by such Assignee to such transferor Bank of an amount
equal to the purchase price agreed between such transferor Bank
and such Assignee, and (D) payment of a processing and
recordation fee of $2,500 by the assigning Bank to the Agent,
such Assignee shall for all purposes be a Bank party to this
Agreement and shall have all the rights and obligations of a Bank
under this Agreement to the same extent as if it were an original
party hereto with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its
obligations hereunder to a corresponding extent, and no further
consent or action by the Borrower, the Banks or the Agent shall
be required. Upon the consummation of any transfer to an
Assignee pursuant to this paragraph (c), the transferor Bank, the
Agent and the Borrower shall make appropriate arrangements so
that, if required, a new Note is issued to each of such Assignee
and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the
Borrower authorizes each Bank to disclose to any Participant,
Assignee or other transferee (each a "Transferee") and any
prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower
which has been delivered to such Bank by the Borrower pursuant to
this Agreement or which has been delivered to such Bank by the
Borrower in connection with such Bank's credit evaluation prior
to entering into this Agreement.
(e) No Transferee shall be entitled to receive any
greater payment under Section 8.03 than the transferor Bank would
have been entitled to receive with respect to the rights
transferred, unless such transfer is made with the Borrower's
prior written consent or by reason of the provisions of
Section 8.02 or 8.03 requiring such Bank to designate a different
Lending Office under certain circumstances or at a time when the
circumstances giving rise to such greater payment did not exist.
(f) Anything in this Section 9.07 to the contrary
notwithstanding, any Bank may assign and pledge all or any
portion of the Loans and/or obligations owing to it to any
Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of
the Federal Reserve System and Operating Circular issued by such
Federal Reserve Bank, provided that any payment in respect of
such assigned Loans and/or obligations made by the Borrower to
the assigning and/or pledging Bank in accordance with the terms
of this Agreement shall satisfy the Borrower's obligations
hereunder in respect of such assigned Loans and/or obligations to
the extent of such payment. No such assignment shall release the
assigning and/or pledging Bank from its obligations hereunder.
SECTION 9.08. Confidentiality. Each Bank agrees to
exercise its best efforts to keep any information delivered or
made available by the Borrower to it which is clearly indicated
to be confidential information, confidential from anyone other
than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring
or administering the Loans; provided, however, that nothing
herein shall prevent any Bank from disclosing such information
(i) to any other Bank, (ii) upon the order of any court or
administrative agency, (iii) upon the request or demand of any
regulatory agency or authority having jurisdiction over such
Bank, (iv) which has been publicly disclosed, (v) to the extent
reasonably required in connection with any litigation to which
the Agent, any Bank or their respective Affiliates may be a
party, (vi) to the extent reasonably required in connection with
the exercise of any remedy hereunder, (vii) to such Bank's legal
counsel and independent auditors and (viii) to any actual or
proposed Participant, Assignee or other Transferee of all or part
of its rights hereunder which has agreed in writing to be bound
by the provisions of this Section 9.08.
SECTION 9.09. Representation by Banks. Each Bank
hereby represents that it is a commercial lender or financial
institution which makes loans in the ordinary course of its
business and that it will make its Loans hereunder for its own
account in the ordinary course of such business; provided,
however, that, subject to Section 9.07, the disposition of the
Note or Notes held by that Bank shall at all times be within its
exclusive control.
SECTION 9.10. Obligations Several. The obligations of
each Bank hereunder are several, and no Bank shall be responsible
for the obligations or commitment of any other Bank hereunder.
Nothing contained in this Agreement and no action taken by the
Banks pursuant hereto shall be deemed to constitute the Banks to
be a partnership, an association, a joint venture or any other
kind of entity. The amounts payable at any time hereunder to
each Bank shall be a separate and independent debt, and each Bank
shall be entitled to protect and enforce its rights arising out
of this Agreement or any other Loan Document and it shall not be
necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.11. Survival of Certain Obligations.
Sections 8.03(a), 8.03(b), 8.05 and 9.03, and the obligations of
the Borrower thereunder, shall survive, and shall continue to be
enforceable notwithstanding, the termination of this Agreement
and the Commitments and the payment in full of the principal of
and interest on all Loans.
SECTION 9.12. Georgia Law. This Agreement and each
Note shall be construed in accordance with and governed by the
law of the State of Georgia.
SECTION 9.13. Severability. In case any one or more
of the provisions contained in this Agreement, the Notes or any
of the other Loan Documents should be invalid, illegal or
unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and
therein shall not in any way be affected or impaired thereby and
shall be enforced to the greatest extent permitted by law.
SECTION 9.14. Interest. In no event shall the amount
of interest due or payable hereunder or under the Notes exceed
the maximum rate of interest allowed by applicable law, and in
the event any such payment is inadvertently made to any Bank by
the Borrower or inadvertently received by any Bank, then such
excess sum shall be credited as a payment of principal, unless
the Borrower shall notify such Bank in writing that it elects to
have such excess sum returned forthwith. It is the express
intent hereof that the Borrower not pay and the Banks not
receive, directly or indirectly in any manner whatsoever,
interest in excess of that which may legally be paid by the
Borrower under applicable law.
SECTION 9.15. Interpretation. No provision of this
Agreement or any of the other Loan Documents shall be construed
against or interpreted to the disadvantage of any party hereto by
any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16. Consent to Jurisdiction. The Borrower
(a) submits to personal jurisdiction in the State of Georgia, the
courts thereof and the United States District Courts sitting
therein, for the enforcement of this Agreement, the Notes and the
other Loan Documents, (b) waives any and all personal rights
under the law of any jurisdiction to object on any basis
(including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of Georgia for the purpose
of litigation to enforce this Agreement, the Notes or the other
Loan Documents, and (c) agrees that service of process may be
made upon it in the manner prescribed in Section 9.01 for the
giving of notice to the Borrower. Nothing herein contained,
however, shall prevent the Agent from bringing any action or
exercising any rights against any security and against the
Borrower personally, and against any assets of the Borrower,
within any other state or jurisdiction.
SECTION 9.17. Counterparts. This Agreement may be
signed in any number of counterparts, each of which shall be an
original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed, under seal, by their respective
authorized officers as of the day and year first above written.
RYAN'S FAMILY STEAK HOUSES, INC.
By:
________________________________________(SEAL)
Title:
Ryan's Family Steak Houses, Inc.
405 Lancaster Avenue
Greer, South Carolina 29652
Attention: Fred T. Grant, Jr., Vice
President - Finance
Telephone number: (864) 879-1000
Telecopy number: (864) 877-0974
[Remainder of page left blank intentionally]
WACHOVIA BANK OF GEORGIA, N.A., as Agent
By:
________________________________________(SEAL)
Title:
Wachovia Bank of Georgia, N.A.
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Beth Dreiling
Telephone number: (404) 332-4008
Telecopy number: (404) 332-4005
[Remainder of page left blank intentionally]
COMMITMENTS WACHOVIA BANK OF SOUTH CAROLINA, N.A.
$48,000,000 By:
_________________________________________(SEAL)
Title:
Lending Office
Wachovia Bank of South Carolina, N.A.
1401 Main Street, Suite 705
Columbia, South Carolina 29226
Attention: Suzanne L. Morrison
Telephone number: (803) 765-3049
Telecopy number: (803) 765-3232
[Remainder of page left blank intentionally]
$29,000,000 SUNTRUST BANK, ATLANTA,
a Georgia Corporation
By:
_________________________________________(SEAL)
Title:
By:
_________________________________________(SEAL)
Title:
Lending Office
SunTrust Bank, Atlanta
25 Park Place
26th Floor, Center 118
Atlanta, Georgia 30302
Attention: Brian K. Peters
Telephone number: (404) 827-6118
Telecopy number: (404) 827-6270
[Remainder of page left blank intentionally]
$16,000,000 THE BANK OF TOKYO-MITSUBISHI, LTD.,
ATLANTA AGENCY
By:_____________________________________
_____(SEAL)
Title:
Lending Office
The Bank of Tokyo-Mitsubishi, Ltd.,
Atlanta Agency
Georgia Pacific Center - Suite 4970
133 Peachtree Street, N.E.
Atlanta, Georgia 30303-1808
Attention: Gary L. England
Telephone number: (404) 577-2960
Telecopy number: (404) 577-1155
____________
TOTAL COMMITMENTS:
$93,000,000
[Remainder of page left blank intentionally]
SCHEDULE 4.08
Existing Subsidiaries
Name of Subsidiary Jurisdiction of
Incorporation
Ryan's Family Steak Houses East, Inc. Delaware
Big R Procurement Company, Inc. Delaware
Ryan's Properties, Inc. Delaware
Calliente Grille, Inc. Delaware
Laredo Grill, Inc. Delaware
L-1 Beverage Club, Inc. Texas
Ry-Tex Beverage Corporation Texas
Italian Eateries, Inc. Delaware
Ryan's Capital Holding Corporation Delaware
EXHIBIT A
NOTE
$____________ Atlanta, Georgia
June 5, 1996
For value received, Ryan's Family Steak Houses, Inc., a
South Carolina corporation (the "Borrower"), promises to pay to
the order of
(the "Bank"), for the account of its Lending Office, the
principal sum of ________________ ______________________________
and No/100 Dollars ($____________), or such lesser amount as
shall equal the unpaid principal amount of each Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred to
below, on the dates and in the amounts provided in the Credit
Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Note on the dates and at the rate or
rates provided for in the Credit Agreement. Interest on any
overdue principal of and, to the extent permitted by law, overdue
interest on the principal amount hereof shall bear interest at
the Default Rate, as provided for in the Credit Agreement. All
such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately
available funds at the office of Wachovia Bank of Georgia, N.A.,
191 Peachtree Street, N.E., Atlanta, Georgia 30303, or such
other address as may be specified from time to time pursuant to
the Credit Agreement.
All Loans made by the Bank, the respective maturities
thereof, the interest rates from time to time applicable thereto
and all repayments of the principal thereof shall be recorded by
the Bank and, prior to any transfer hereof, endorsed by the Bank
on the schedule attached hereto, or on a continuation of such
schedule attached to and made a part hereof; provided that the
failure of the Bank to make, or any error of the Bank in making,
any such recordation or endorsement shall not affect the
obligations of the Borrower hereunder or under the Credit
Agreement.
This Note is one of the Notes referred to in the
Credit Agreement dated as of June 5, 1996, among the Borrower,
the banks listed on the signature pages thereof and their
successors and assigns and Wachovia Bank of Georgia, N.A., as
Agent (as the same may be amended or modified from time to time,
the "Credit Agreement"). Terms defined in the Credit Agreement
are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment and the
repayment hereof and the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand,
protest, notice of demand, protest and nonpayment and any other
notice required by law relative hereto, except to the extent as
otherwise may be expressly provided for in the Credit Agreement.
The Borrower agrees, in the event that this Note or any
portion hereof is collected by law or through an attorney at law,
to pay all reasonable costs of collection, including, without
limitation, reasonable attorneys' fees.
IN WITNESS WHEREOF, the Borrower has caused this Note
to be duly executed under seal, by its duly authorized officer as
of the day and year first above written.
RYAN'S FAMILY STEAK HOUSES, INC.
By: ______________________________
Title:
Note (cont'd)
LOANS AND PAYMENTS OF PRINCIPAL
______________________________________________________________________
_____________
Type Amount Amount of
of Interest of Principal Maturity Notation
Date Loan Rate Loan Repaid Date Made By
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
______________________________________________________________________
___________
EXHIBIT B
OPINION OF
COUNSEL FOR THE BORROWER
[To be provided]
EXHIBIT C
OPINION OF
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, SPECIAL COUNSEL
FOR THE AGENT
[Date as provided in Section 3.01 of the Credit Agreement]
To the Banks and the Agent
Referred to Below
c/o Wachovia Bank of Georgia, N.A.,
as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Dear Sirs:
We have participated in the preparation of the
Credit Agreement (the "Credit Agreement") dated as of June 5,
1996 among Ryan's Family Steak Houses, Inc., a South Carolina
corporation (the "Borrower"), the banks listed on the signature
pages thereof (the "Banks") and Wachovia Bank of Georgia, N.A.,
as Agent (the "Agent"), and have acted as special counsel for the
Agent for the purpose of rendering this opinion pursuant to
Section 3.01(d) of the Credit Agreement. Terms defined in the
Credit Agreement are used herein as therein defined.
This opinion letter is limited by, and is in
accordance with, the January 1, 1992 edition of the Interpretive
Standards applicable to Legal Opinions to Third Parties in
Corporate Transactions adopted by the Legal Opinion Committee of
the Corporate and Banking Law Section of the State Bar of Georgia
which Interpretive Standards are incorporated herein by this
reference.
We have examined originals or copies, certified or
otherwise identified to our satisfaction, of such documents,
corporate records, certificates of public officials and other
instruments and have conducted such other investigations of fact
and law as we have deemed necessary or advisable for purposes of
this opinion.
Upon the basis of the foregoing, and assuming the
due authorization, execution and delivery of the Credit Agreement
and each of the Notes by or on behalf of the Borrower, we are of
the opinion that the Credit Agreement constitutes a valid and
binding agreement of the Borrower and each Note constitutes valid
and binding obligations of the Borrower, in each case enforceable
in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency,
reorganization, fraudulent conveyance, voidable preference,
moratorium or similar laws applicable to creditors' rights or the
collection of debtors' obligations generally; (ii) rights of
acceleration and the availability of equitable remedies may be
limited by equitable principles of general applicability; and
(iii) the enforceability of certain of the remedial, waiver and
other provisions of the Credit Agreement and the Notes may be
further limited by the laws of the State of Georgia; provided,
however, such additional laws do not, in our opinion,
substantially interfere with the practical realization of the
benefits expressed in the Credit Agreement and the Notes, except
for the economic consequences of any procedural delay which may
result from such laws.
In giving the foregoing opinion, we express no
opinion as to the effect (if any) of any law of any jurisdiction
except the State of Georgia. We express no opinion as to the
effect of the compliance or noncompliance of the Agent or any of
the Banks with any state or federal laws or regulations
applicable to the Agent or any of the Banks by reason of the
legal or regulatory status or the nature of the business of the
Agent or any of the Banks.
This opinion is delivered to you in connection with
the transaction referenced above and may only be relied upon by
you and any Assignee, Participant or other Transferee under the
Credit Agreement without our prior written consent.
Very truly yours,
WOMBLE CARLYLE SANDRIDGE & RICE,
PLLC
By:________________________________
__
Christopher E. Leon, Manager
EXHIBIT D
CLOSING CERTIFICATE
OF
RYAN'S FAMILY STEAK HOUSES, INC.
Reference is made to the Credit Agreement (the
"Credit Agreement") dated as of June 5, 1996, among Ryan's Family
Steak Houses, Inc., (the "Borrower"), Wachovia Bank of Georgia,
N.A., as Agent and certain other Banks listed on the signature
pages thereof. Capitalized terms used herein have the meanings
ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement,
___________________, the duly authorized ____________________ of
the Borrower, hereby certifies to the Agent and the Banks that:
(i) no Default has occurred and is continuing on the date hereof;
and (ii) the representations and warranties of the Borrower
contained in Article IV of the Credit Agreement are true on and
as of the date hereof.
Certified as of the ___ day of _________, 19__.
RYAN'S FAMILY STEAK HOUSES,
INC.
______________________________
_______
Name:
Title:
EXHIBIT E
RYAN'S FAMILY STEAK HOUSES, INC.
SECRETARY'S CERTIFICATE
The undersigned, _____________, _______ Secretary of
Ryan's Family Steak Houses, Inc., a South Carolina corporation
(the "Borrower"), hereby certifies that he has been duly elected,
qualified and is acting in such capacity and that, as such, he is
familiar with the facts herein certified and is duly authorized
to certify the same, and hereby further certifies, in connection
with the Credit Agreement dated as of June 5, 1996 among the
Borrower, Wachovia Bank of Georgia, N.A., as Agent, and certain
other Banks listed on the signature pages thereof that:
1. Attached hereto as Exhibit A is a complete
and correct copy of the Certificate of Incorporation of the
Borrower as in full force and effect on the date hereof as
certified by the Secretary of State of the State of South
Carolina, the Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete
and correct copy of the Bylaws of the Borrower as in full force
and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete
and correct copy of the resolutions duly adopted by the Board of
Directors of the Borrower on _____ __, 1996 approving, and
authorizing the execution and delivery of, the Credit Agreement,
the Notes (as such term is defined in the Credit Agreement) and
the other Loan Documents (as such term is defined in the Credit
Agreement) to which the Borrower is a party. Such resolutions
have not been repealed or amended and are in full force and
effect, and no other resolutions or consents have been adopted by
the Board of Directors of the Borrower in connection therewith.
4. ____________, who as ________________________
of the Borrower signed the Credit Agreement, the Notes and the
other Loan Documents to which the Borrower is a party, was duly
elected, qualified and acting as such at the time he signed the
Credit Agreement, the Notes and other Loan Documents to which the
Borrower is a party, and his signature appearing on the Credit
Agreement, the Notes and the other Loan Documents to which the
Borrower is a party is his genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set
his hand as of the ____ day of _________, 19__.
______________________________
_
Name:
Title:
EXHIBIT F
FORM OF COMPLIANCE CERTIFICATE
Reference is made to the Credit Agreement dated as
of June 5, 1996 (as modified and supplemented and in effect from
time to time, the "Credit Agreement") among Ryan's Family Steak
Houses, Inc., the Banks from time to time parties thereto, and
Wachovia Bank of Georgia, N.A., as Agent. Capitalized terms used
herein shall have the meanings ascribed thereto in the Credit
Agreement.
Pursuant to Section 5.01(c) of the Credit Agreement,
_________________, the duly authorized ___________________, of
Ryan's Family Steak Houses, Inc. hereby certifies to the Agent
and the Banks that the information contained in the Compliance
Check List attached hereto is true, accurate and complete as of
_____________, 199___, and that no Default is in existence on and
as of the date hereof.
RYAN'S FAMILY STEAK HOUSES,
INC.
By:__________________________
Title:
COMPLIANCE CHECK LIST
Ryan's Family Steak Houses, Inc.
________________, 199__
1. Ratio of Consolidated Funded Debt to Total Consolidated
Capitalization (Section 5.03)
(a) Consolidated Funded Debt
$__________
(b) Total Consolidated Capitalization
(Consolidated Net Worth, plus
$__________
Consolidated Funded Debt)
Actual Ratio of (a) to (b) ___________
Maximum Ratio .40 to
1.00
2. Consolidated Net Worth (Section 5.04)
(1) Base Amount of Consolidated Net Worth$ 225,000,000
(2) 50% of Reported Net Income
after 3/31/96 excluding any quarter
in which Consolidated Net Income is negative
$_________
_
(3) 100% of Net Proceeds of Capital Stock $__________
after 3/31/96
Total
__________
Actual Consolidated Net Worth
$__________
COMPLIANCE CHECK LIST
Ryan's Family Steak Houses, Inc.
________________, 199__
3. Fixed Charge Coverage (Section 5.05)
(a) Income Available for Fixed Charges $_________
(b) Consolidated Fixed Charges $_________
Actual Ratio of (a) to (b) _________
Minimum Ratio 2.00 to
1.00
4. Loans or Advances (Section 5.06)
(a) Actual loans or advances to employees $_________
(b) Maximum Amount $
500,000
5. Investments (Section 5.07)
(a)(1) Investments pursuant to Section 5.07(v)
(i.e., capital stock or other equity interests
constituting a Permitted Acquisition) $_________
(a)(2) 10% of Consolidated Total Assets $_________
(b)(1) Investments pursuant to Section 5.07(vi)
(i.e., not
permitted under Sections 5.07(i) through (v)) $_________
(b)(2) Maximum Amount of Investments pursuant
to Section 5.07(vi)
$5,000,000
COMPLIANCE CHECK LIST
Ryan's Family Steak Houses, Inc.
________________, 199__
6. Negative Pledge (Section 5.08)
(a)(1) Debt secured by Liens pursuant to Section
5.08(j) (i.e., not permitted by
Sections 5.08(a) through (i)
$_____________________
(a)(2) Limitation (2% of Consolidated Net
Worth)
$_____________________
(b)(1) Total Debt secured by Liens permitted
by Sections 5.08(a) through (j)
$_____________________
(b)(2) Limitation (5% of Consolidated Net
Worth)
$_____________________
7. Consolidations, Mergers and Sales of Assets (Section
5.11)
(1) All assets transferred and all other assets
utilized in
all other business lines or segments discontinued
during current Fiscal Quarter (excluding
transfers
or discontinuances permitted under 5.11(a), (b)
or (c)) $_________
(2) All assets transferred and all other assets
utilized in
all other business lines or segments discontinued
during all Fiscal Quarters preceding the current
Fiscal
Quarter (excluding transfers or discontinuances
permitted under 5.11(a), (b) or (c)) $_________
(3) Total
$_________
(4) Maximum - 10% of Consolidated Total Assets $_________
8. Debt (Section 5.21)
(1)(a) Aggregate Debt of all Subsidiaries not
otherwise permitted under Sections 5.21(1) or (2) $_________
(1)(b) Limitation - 5% of Consolidated Net Worth $_________
(2)(a) Aggregate Debt of each Subsidiary not
otherwise
permitted under Sections 5.21(1) or (2) $__________
(2)(b) Limitation - per Subsidiary $ 5,000,000
EXHIBIT G
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Credit Agreement dated as of
June 5, 1996 (together with all amendments and modifications
thereto, the "Credit Agreement") among Ryan's Family Steak
Houses, Inc., a South Carolina corporation (the "Borrower"), the
Banks (as defined in the Credit Agreement) and Wachovia Bank of
Georgia, N.A., as Agent (the "Agent"). Terms defined in the
Credit Agreement are used herein with the same meaning.
_____________________________________________________
(the "Assignor") and
_____________________________________________ (the "Assignee")
agree as follows:
1. The Assignor hereby sells and assigns to the
Assignee, without recourse to the Assignor, and the Assignee
hereby purchases and assumes from the Assignor, a ______%
interest in and to all of the Assignor's rights and obligations
under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ______% interest (which
on the Effective Date hereof is $_______________) in the
Assignor's Commitment and a ______% interest (which on the
Effective Date hereof is $_______________) in the Loans owing to
the Assignor and a ______% interest in the Note held by the
Assignor (which on the Effective Date hereof is
$__________________)).
2. The Assignor (i) makes no representation or warranty
and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the
Credit Agreement, any other instrument or document furnished
pursuant thereto or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of the Credit
Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that it is the
legal and beneficial owner of the interest being assigned by it
hereunder, that such interest is free and clear of any adverse
claim and that as of the date hereof its Commitment (without
giving effect to assignments thereof which have not yet become
effective) is $_________________ and the aggregate outstanding
principal amount of Loans owing to it (without giving effect to
assignments thereof which have not yet become effective) is
$_________________; (ii) makes no representation or warranty and
assumes no responsibility with respect to the financial condition
of the Borrower or the performance or observance by the Borrower
of any of its obligations under the Credit Agreement, any other
Loan Document or any other instrument or document furnished
pursuant thereto; and (iii) attaches the Note[s] referred to in
paragraph 1 above and requests that the Agent exchange such
Note[s] as follows: [a new Note dated _______________, ____ in
the principal amount of _________________ payable to the order of
the Assignee] [new Notes as follows: a Note dated
_________________, ____ in the principal amount of
$_______________ payable to the order of the Assignor and a Note
dated ______________, ____ in the principal amount of
$______________ payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a
copy of the Credit Agreement, together with copies of the
financial statements referred to in Section 4.04(a) thereof (or
any more recent financial statements of the Borrower delivered
pursuant to Section 5.01(a) or (b) thereof) and such other
documents and information as it has deemed appropriate to make
its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will,
independently and without reliance upon the Agent, the Assignor
or any other Bank and based on such documents and information as
it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit
Agreement; (iii) confirms that it is a bank or financial
institution; (iv) appoints and authorizes the Agent to take such
action as agent on its behalf and to exercise such powers under
the Credit Agreement as are delegated to the Agent by the terms
thereof, together with such powers as are reasonably incidental
thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit
Agreement are required to be performed by it as a Bank; (vi)
specifies as its Lending Office (and address for notices) the
office set forth beneath its name on the signature pages hereof,
(vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its
corporate powers and have been duly authorized by all necessary
corporate action[, and (viii) attaches the forms prescribed by
the Internal Revenue Service of the United States certifying as
to the Assignee's status for purposes of determining exemption
from United States withholding taxes with respect to all payments
to be made to the Assignee under the Credit Agreement and the
Notes or such other documents as are necessary to indicate that
all such payments are subject to such taxes at a rate reduced by
an applicable tax treaty].1
4. The Effective Date for this Assignment and
Acceptance shall be _______________ (the "Effective Date").
Following the execution of this Assignment and Acceptance, it
will be delivered to the Agent for execution and acceptance by
the Agent [and to the Borrower for execution by the Borrower]2.
5. Upon such execution and acceptance by the Agent
[and execution by the Borrower]**, from and after the Effective
Date, (i) the Assignee shall be a party to the Credit Agreement
and, to the extent rights and obligations have been transferred
to it by this Assignment and Acceptance, have the rights and
obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent its rights and obligations have been transferred to
the Assignee by this Assignment and Acceptance, relinquish its
rights (other than under Section 8.03 and Section 9.03 of the
Credit Agreement) and be released from its obligations under the
Credit Agreement.
6. Upon such execution and acceptance by the Agent
[and execution by the Borrower]2, from and after the Effective
Date, the Agent shall make all payments in respect of the
interest assigned hereby to the Assignee. The Assignor and
Assignee shall make all appropriate adjustments in payments for
periods prior to such acceptance by the Agent directly between
themselves.
7. This Assignment and Acceptance shall be governed
by, and construed in accordance with, the laws of the State of
Georgia.
[NAME OF ASSIGNOR]
By:________________________________
____
Title:
[NAME OF ASSIGNEE]
By:________________________________
____
Title:
Lending Office:
[Address]
WACHOVIA BANK OF GEORGIA, N.A., as
Agent
By:________________________________
____
Title:
[NAME OF BORROWER]1
By:________________________________
____
Title:
EXHIBIT H
NOTICE OF BORROWING
__________, 1996
Wachovia Bank of Georgia, N.A., as Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Re: Credit Agreement (as amended and modified from
time to time, the "Credit Agreement") dated as of
June 5, 1996 by and among Ryan's Family Steak
Houses, Inc., the Banks from time to time parties
thereto, and Wachovia Bank of Georgia, N.A., as
Agent.
Gentlemen:
Unless otherwise defined herein, capitalized terms used
herein shall have the meanings attributable thereto in the Credit
Agreement.
This Notice of Borrowing is delivered to you pursuant
to Section 2.02 of the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar
Borrowing][Base Rate Borrowing] in the aggregate principal amount
of $___________ to be made on ________, 19__, and for interest to
accrue thereon at the rate established by the Credit Agreement
for [Euro-Dollar Loans][Base Rate Loans]. The duration of the
Interest Period with respect thereto shall be [1 month] [2
months] [3 months] [6 months] [30 days].
The Borrower has caused this Notice of Borrowing to be
executed and delivered by its duly authorized officer this ___
day of ____, 1996.
RYAN'S FAMILY STEAK HOUSES, INC.
By:______________________
Title:
_______________________________
1If the Assignee is organized under the laws of a
jurisdiction outside the United States.
2If required under the Credit Agreement.
1If required under the Credit Agreement.