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CREDIT AGREEMENT
Dated as of July 31, 2001
Among
UNO ACQUISITION CORP.
UNO RESTAURANT CORPORATION
UNO RESTAURANTS, INC.
and
SL PROPERTIES, INC.
as Borrowers,
UNO RESTAURANT HOLDINGS CORPORATION
UNO FOODS INC.
PIZZERIA UNO CORPORATION
and
URC HOLDING COMPANY, INC.,
as Guarantors
THE LENDERS PARTY HERETO,
and
FLEET NATIONAL BANK,
as Administrative Agent for the Lenders
and
SUNTRUST BANK,
as Syndication Agent for the Lenders
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TABLE OF CONTENTS
PAGE
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ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS....................................1
Section 1.1. DEFINITIONS..............................................1
Section 1.2. ACCOUNTING TERMS........................................17
ARTICLE 2. THE CREDITS........................................................17
Section 2.1. THE TERM LOANS..........................................17
Section 2.2. THE REVOLVING CREDIT....................................19
Section 2.3. MAKING OF REVOLVING CREDIT ADVANCES.....................19
Section 2.4. INTEREST ON LOANS.......................................21
Section 2.5. ELECTION OF LIBOR PRICING OPTIONS.......................21
Section 2.6. ADDITIONAL PAYMENTS.....................................21
Section 2.7. COMPUTATION OF INTEREST, ETC............................22
Section 2.8. FEES....................................................22
Section 2.9. SET-OFF.................................................22
Section 2.10. SHARING OF PAYMENTS.....................................23
Section 2.11. REDUCTION OF COMMITMENT BY THE BORROWERS................23
Section 2.12. INCREASED COSTS, ETC....................................23
Section 2.13. CHANGED CIRCUMSTANCES...................................25
Section 2.14. USE OF PROCEEDS.........................................26
Section 2.15. LETTERS OF CREDIT.......................................26
Section 2.16. GUARANTEES..............................................30
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES...................................32
Section 3.1. CONDITIONS TO TERM LOANS AND FIRST REVOLVING CREDIT
ADVANCE.................................................32
Section 3.2. CONDITIONS TO ALL LOANS.................................34
ARTICLE 4. PAYMENT AND REPAYMENT..............................................35
Section 4.1. MANDATORY PREPAYMENT....................................35
Section 4.2. VOLUNTARY PREPAYMENTS...................................36
Section 4.3. PAYMENT AND INTEREST CUTOFF.............................36
Section 4.4. PAYMENT OR OTHER ACTIONS ON NON-BUSINESS DAYS...........36
Section 4.5. METHOD, TIMING AND APPLICATION OF PAYMENTS..............37
Section 4.6. PAYMENTS NOT AT END OF INTEREST PERIOD..................37
Section 4.7. CURRENCY................................................38
ARTICLE 5. REPRESENTATIONS AND WARRANTIES.....................................38
Section 5.1. CORPORATE EXISTENCE, GOOD STANDING, ETC.................38
(i)
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Section 5.2. PRINCIPAL PLACE OF BUSINESS; LOCATION OF RECORDS........38
Section 5.3. QUALIFICATION...........................................38
Section 5.4. SUBSIDIARIES............................................39
Section 5.5. CORPORATE POWER.........................................39
Section 5.6. VALID AND BINDING OBLIGATIONS...........................40
Section 5.7. OTHER AGREEMENTS........................................40
Section 5.8. PAYMENT OF TAXES........................................40
Section 5.9. FINANCIAL STATEMENTS AND PROJECTIONS....................40
Section 5.10. OTHER MATERIALS FURNISHED...............................41
Section 5.11. STOCK...................................................41
Section 5.12. CHANGES IN CONDITION....................................41
Section 5.13. ASSETS, LICENSES, ETC...................................41
Section 5.14. LITIGATION..............................................42
Section 5.15. PENSION PLANS...........................................42
Section 5.16. OUTSTANDING INDEBTEDNESS................................42
Section 5.17. ENVIRONMENTAL MATTERS...................................42
Section 5.18. FOREIGN TRADE REGULATIONS...............................43
Section 5.19. GOVERNMENTAL REGULATIONS................................44
Section 5.20. MARGIN STOCK............................................44
Section 5.21. REAL PROPERTY...........................................44
Section 5.22. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC............44
Section 5.23. NO DEFAULTS UNDER FFCA AND SPENCER......................45
Section 5.24. CONSUMMATION OF MERGER..................................45
ARTICLE 6. REPORTS............................................................45
Section 6.1. INTERIM FINANCIAL STATEMENTS AND REPORTS................45
Section 6.2. ANNUAL FINANCIAL STATEMENTS.............................46
Section 6.3. NOTICE OF DEFAULTS......................................46
Section 6.4. NOTICE OF LITIGATION....................................46
Section 6.5. COMMUNICATIONS WITH OTHERS..............................46
Section 6.6. REPORTABLE EVENTS.......................................47
Section 6.7. ANNUAL PENSION REPORTS..................................47
Section 6.8. REPORTS TO OTHER CREDITORS..............................47
Section 6.9. COMMUNICATIONS WITH INDEPENDENT PUBLIC ACCOUNTANTS......47
Section 6.10. ENVIRONMENTAL REPORTS...................................48
Section 6.11. METLIFE NOTES...........................................48
Section 6.12. ANNUAL PROJECTIONS......................................48
Section 6.13. MISCELLANEOUS...........................................49
ARTICLE 7. FINANCIAL RESTRICTIONS.............................................49
Section 7.1. CONSOLIDATED LEVERAGE RATIO..............................49
Section 7.2. CONSOLIDATED NET WORTH...................................49
Section 7.3. CONSOLIDATED CASH FLOW COVERAGE RATIO....................49
Section 7.4. CONSOLIDATED CAPITAL EXPENDITURES........................49
Section 7.5. CONSOLIDATED OPERATING LEASE EXPENSE.....................50
Section 7.6. CONSOLIDATED EBITDA......................................50
(ii)
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Section 7.7. OPERATING CASH FLOW......................................50
ARTICLE 8. AFFIRMATIVE COVENANTS..............................................51
Section 8.1. EXISTENCE AND BUSINESS...................................51
Section 8.2. TAXES AND OTHER OBLIGATIONS..............................51
Section 8.3. MAINTENANCE OF PROPERTIES AND LEASES.....................51
Section 8.4. INSURANCE................................................52
Section 8.5. RECORDS, ACCOUNTS AND PLACES OF BUSINESS.................52
Section 8.6. INSPECTION...............................................52
Section 8.7. CHANGE IN OFFICERS OR DIRECTORS..........................53
Section 8.8. MAINTENANCE OF ACCOUNTS..................................53
Section 8.9. ACCESS TO INDEPENDENT PUBLIC ACCOUNTANTS.................53
Section 8.10. TRANSFER OF ASSETS.......................................53
Section 8.11. INTEREST RATE PROTECTION.................................53
Section 8.12. FURTHER ASSURANCES.......................................53
Section 8.13. EXECUTION OF SECURITY DOCUMENTS..........................54
ARTICLE 9. NEGATIVE COVENANTS.................................................55
Section 9.1. RESTRICTIONS ON INDEBTEDNESS.............................55
Section 9.2. RESTRICTION ON LIENS.....................................56
Section 9.3. INVESTMENTS..............................................57
Section 9.4. DISPOSITIONS OF ASSETS...................................58
Section 9.5. ASSUMPTIONS, GUARANTEES, ETC. OF INDEBTEDNESS OF
OTHER PERSONS............................................58
Section 9.6. MERGERS, ETC.............................................59
Section 9.7. PENSION REFORM ACT.......................................59
Section 9.8. DISTRIBUTIONS............................................60
Section 9.9. SALE AND LEASEBACK.......................................60
Section 9.10. FRANCHISE AGREEMENTS.....................................60
Section 9.11. CAPITAL STRUCTURE........................................60
Section 9.12. TRANSACTIONS WITH AFFILIATES.............................60
Section 9.13. NEW SUBSIDIARIES.........................................61
Section 9.14. NEW RESTAURANTS..........................................61
Section 9.15. FFCA SALE-LEASEBACK DOCUMENTS............................61
Section 9.16. SPENCER I SALE-LEASEBACK DOCUMENTS.......................61
Section 9.17. SPENCER II SALE-LEASEBACK DOCUMENTS......................61
ARTICLE 10. EVENTS OF DEFAULT AND REMEDIES....................................61
Section 10.1. EVENTS OF DEFAULT........................................61
Section 10.2. REMEDIES.................................................63
ARTICLE 11. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES...........................64
Section 11.1. ACTIONS BY LENDERS.......................................64
Section 11.2. ACTIONS BY BORROWERS.....................................65
ARTICLE 12. SUCCESSORS AND ASSIGNS............................................65
Section 12.1. GENERAL..................................................65
(iii)
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Section 12.2. ASSIGNMENTS..............................................66
Section 12.3. PARTICIPATIONS...........................................67
ARTICLE 13. THE ADMINISTRATIVE AGENT..........................................68
Section 13.1. AUTHORIZATION AND ACTION.................................68
Section 13.2. ADMINISTRATIVE AGENT'S RELIANCE, ETC.....................68
Section 13.3. ADMINISTRATIVE AGENT AS A LENDER.........................69
Section 13.4. LENDER CREDIT DECISION...................................69
Section 13.5. INDEMNIFICATION OF ADMINISTRATIVE AGENT..................69
Section 13.6. SUCCESSOR ADMINISTRATIVE AGENT...........................70
Section 13.7. AMENDMENT OF ARTICLE 13..................................70
ARTICLE 14. MISCELLANEOUS.....................................................70
Section 14.1. NOTICES..................................................70
Section 14.2. MERGER...................................................71
Section 14.3. GOVERNING LAW; CONSENT TO JURISDICTION...................71
Section 14.4. COUNTERPARTS; REPLACEMENT OF INSTRUMENTS.................71
Section 14.5. EXPENSES AND INDEMNIFICATION.............................72
Section 14.6. CONFIDENTIALITY..........................................73
Section 14.7. USURY LIMITATION.........................................74
Section 14.8. WAIVER OF JURY TRIAL; VENUE..............................74
(iv)
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LIST OF EXHIBITS AND SCHEDULES
Exhibit A-1 Form of Revolving Credit Note
Exhibit A-2 Form of Term Loan A Note
Exhibit A-2-A Form of Term Loan A Note
Exhibit A-3 Form of Term Loan B Note
Exhibit A-3-A Form of Term Loan B Note
Exhibit B Form of Notice of Revolving Credit Borrowing
Exhibit C Form of Compliance Certificate
Exhibit D Form of Pricing Notice
Exhibit E Form of Opinion of Borrower's Counsel
Exhibit F Form of Assignment and Acceptance Agreement
Exhibit G Form of Security Agreement
Exhibit H Form of Pledge Agreement
Exhibit I Form of Intellectual Property Security Agreement
Exhibit J Form of Leasehold Mortgage
Exhibit K Form of Collateral Pledge and Assignment of License
Exhibit L Form of Affiliate Guaranty Agreement
Schedule 1 Schedule of Commitment Percentages
Schedule 2 Pricing Schedule
Schedule 2.15 Existing Letters of Credit
Schedule 5.2(b) Leased Properties
Schedule 5.4 Schedule of Subsidiaries
Schedule 5.8 Tax Matters
Schedule 5.9 Schedule of Financial Statements
Schedule 5.11 Schedule of Issued and Outstanding Stock
Schedule 5.12 Changes in Condition
Schedule 5.13(a) Schedule of Liens or Assets
Schedule 5.13(b) Schedule of Licenses, Patents, Copyrights, Trademarks and
Franchises
Schedule 5.13(c) Schedule of Restaurant Locations and Franchises
Schedule 5.14 Schedule of Litigation
Schedule 5.15 Schedule of Pension Plans
Schedule 5.16 Schedule of Indebtedness, Liens, Charges and Encumbrances
Schedule 5.17 Environmental Matters
Schedule 5.21 Real Properties
Schedule 8.4 Schedule of Insurance
Schedule 8.10 Schedule of Transferred Assets
Schedule 9.3(f) Schedule of Subsidiaries Not Wholly-Owned
Schedule 9.5 Schedule of MetLife Notes
Schedule 9.10 Franchise Program
(v)
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CREDIT AGREEMENT
This CREDIT AGREEMENT is entered into as of July 31, 2001 by and among UNO
RESTAURANT CORPORATION, a Delaware corporation ("URC"), UNO RESTAURANTS, INC., a
Massachusetts corporation ("URI"), UNO ACQUISITION CORP., a Delaware corporation
("Acquisition", and together with URI and URC each a "Borrower" and
collectively, the "Borrowers"), SL PROPERTIES, INC., a Massachusetts corporation
("SLP"), a Borrower only for purposes of Section 2.15, UNO RESTAURANTS HOLDING
CORPORATION, a Delaware corporation ("URHC"), UNO FOODS INC., a Massachusetts
corporation ("UFI"), PIZZERIA UNO CORPORATION, a Delaware corporation ("PUC"),
URC HOLDING COMPANY, INC., a Delaware corporation ("UHC" and together with UFI,
PUC, URHC, SLP and the Borrowers, hereinafter referred to collectively as the
"Loan Parties"), the lenders party hereto, FLEET NATIONAL BANK, as
Administrative Agent for the Lenders (the "Agent") and SUNTRUST BANK, as
Syndication Agent for the Lenders (the "Syndication Agent").
RECITALS
Acquisition is a wholly-owned subsidiary of URHC and has been formed to be
merged into URC pursuant to the terms of the Merger Agreement (as hereinafter
defined) (the "Merger"). The Borrowers have requested the Lenders to establish
credit facilities with the Borrowers to repay certain existing indebtedness of
URI, to partially finance a portion of the amounts due under the Merger
Agreement and fees and expenses related thereto, and to provide funds for the
issuance of letters of credit, working capital, and other general corporate
purposes. The Lenders have agreed, on the terms and conditions set forth in this
Agreement, to provide credit facilities for such purposes.
NOW, THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto do hereby agree
as follows:
ARTICLE 1. DEFINITIONS AND ACCOUNTING TERMS
Section 1.1. DEFINITIONS. In addition to the terms defined elsewhere in
this Agreement, unless otherwise specifically provided herein, the following
terms shall have the following meanings for all purposes when used in this
Agreement, and in any note, agreement, certificate, report or other document
made or delivered in connection with this Agreement:
"ADMINISTRATIVE AGENT" shall mean Fleet National Bank, in its
capacity as administrative agent for the Lenders, and its successors in
that capacity.
"AFFILIATE" shall mean: (a) any present director or executive
officer of any of the Loan Parties or any Person owning, to the knowledge
of any of the Loan Parties, more than 5% of the outstanding common stock
of any of the Loan Parties; and (b) any Person that controls, is
controlled by or is under common control with such Person or any Affiliate
of such Person. For purposes of this definition, "control" of a Person
shall mean the possession, directly or indirectly, of the power to direct
or cause the direction of its management or policies, whether through the
ownership of voting securities, by contract or otherwise.
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"AFFILIATE GUARANTORS" shall mean each of the Subsidiaries of the
Loan Parties (other than UHC, UFI, PUC, URHC, SLP and the Borrowers)
identified on SCHEDULE 5.4 hereto as Affiliate Guarantors, and any future
Subsidiary of the Loan Parties which executes an Affiliate Guaranty
Agreement pursuant to Section 9.13 hereof.
"AFFILIATE GUARANTY AGREEMENT(S)" shall mean the Guaranty Agreements
in the form of EXHIBIT L attached hereto, to be executed by each Affiliate
Guarantor in favor of the Agent, as the same may be amended and in effect
from time to time.
"AFFILIATE SUBORDINATED INDEBTEDNESS" shall have the meaning set
forth in Section 2.16(e) hereof.
"AGENTS" shall mean the Administrative Agent and the Syndication
Agent.
"AGREEMENT" shall mean this Credit Agreement, as amended or
supplemented from time to time. References to Articles, Sections,
Exhibits, Schedules and the like refer to the Articles, Sections,
Exhibits, Schedules and the like of this Agreement unless otherwise
indicated, as amended and supplemented from time to time.
"APPLICABLE BASE RATE" shall mean the sum of (a) the Base Rate PLUS
(b) the Base Rate Margin, as each is in effect from time to time.
"APPLICABLE LIBOR RATE" shall mean the sum of (a) the LIBOR Rate
PLUS (b) the LIBOR Rate Margin, as each is in effect from time to time.
"ASSIGNMENT AND ACCEPTANCE AGREEMENT" shall have the meaning set
forth in Section 12.2(a) hereof.
"BASE RATE" shall mean the greater of (a) the Prime Rate and (b) the
Federal Funds Effective Rate PLUS 1/2 of 1% per annum (rounded upwards, if
necessary, to the next 1/8 of 1%).
"BASE RATE LOAN" shall mean any Revolving Credit Advance or any
portion of any Term Loan bearing interest at a fluctuating rate determined
by reference to the Applicable Base Rate.
"BASE RATE MARGIN" shall mean a rate per annum determined in
accordance with the Pricing Schedule.
"BORROWERS" shall mean initially, prior to the effective time of the
Merger, Acquisition and at any time thereafter, URC, URI, and, only for
purposes of Section 2.15, SLP, jointly and severally, and "BORROWER" shall
mean any of them.
"BUSINESS DAY" shall mean (a) for all purposes other than as covered
by clause (b) below, any day other than a Saturday, Sunday or legal
holiday on which commercial banks in Boston, Massachusetts are open for
the conduct of a substantial part of their commercial banking business,
and (b) with respect to all notices and determinations in connection with
Interest Periods for and payments of principal and interest on LIBOR
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Rate Loans, any day that is a Business Day described in clause (a) and
that is also a day on which dealings in U.S. dollar deposits are carried
on in the London interbank market and commercial banks are open for
business in London.
"CAPITAL EXPENDITURES" shall mean amounts paid or Indebtedness
incurred by any Person in connection with (a) the purchase or lease by
such Person of assets that would be required to be capitalized and shown
on the balance sheet of such Person in accordance with GAAP and (b)
restaurant pre-opening costs, provided, however, that Capital Expenditures
shall not include lease obligations that are treated as Capitalized Leases
for purposes of such Person's consolidated financial statements.
"CAPITALIZED LEASE" shall mean any lease which is or should be
capitalized on the balance sheet of the lessee in accordance with
generally accepted accounting principles and Statement of Financial
Accounting Standards No. 13.
"CAPITALIZED LEASE OBLIGATIONS" shall mean the amount of the
liability reflecting the aggregate discounted amount of future payments
under all Capitalized Leases calculated in accordance with generally
accepted accounting principles and Statement of Financial Accounting
Standards No. 13.
"CHANGE OF CONTROL" shall be deemed to have occurred when (a)
neither Aaron D. Spencer nor his designee shall serve as chief executive
officer of URC, whether by reason of death, disability, resignation,
action by the Board of Directors, or otherwise, or (b) less than fifty-one
percent (51%) of the outstanding shares of voting capital stock of URHC is
owned of record or beneficially by Aaron D. Spencer, the executors of his
estate, a family member, a family trust or other estate planning entity
controlled by Aaron D. Spencer or his executors or trustees and in which
Aaron D. Spencer's family members are beneficiaries. Capital stock held by
a family member of Aaron D. Spencer in his or her individual name or, in a
family trust or other family-owned estate planning entity shall be deemed
to be owned by Aaron D. Spencer. For purposes of this definition, the term
"family member" shall mean (i) Aaron D. Spencer's spouse, if living with
Aaron D. Spencer, (ii) any one of the following: Aaron D. Spencer's
father, mother, issue, brother or sister, and the issue of a brother or
sister, and (iii) the spouse of any family member described in (ii) above,
if the spouse shall be living with that family member.
"CLOSING DATE" shall mean the date on which all of the conditions
set forth in Section 3.1 have been satisfied to the satisfaction of, or
waived by, the Agents.
"COLLATERAL PLEDGE AND ASSIGNMENT OF LICENSE" shall mean the
Collateral Pledge and Assignment of License from each of the Loan Parties
and the Affiliate Guarantors which hold alcoholic beverage licenses in
jurisdictions where the collateral assignment thereof is permitted by
applicable law, to the Administrative Agent to secure Lender Obligations,
each in substantially the form of EXHIBIT K.
"COMMITMENT PERCENTAGE" shall mean as to each Lender its percentage
interest in the Term Loans and the Maximum Revolving Credit Amount as set
forth on SCHEDULE 1 hereto.
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"COMPANY RESTAURANT" shall mean a restaurant owned or leased and
operated by a Loan Party or any Subsidiary of a Loan Party.
"COMPLIANCE CERTIFICATE" shall mean a certificate in the form of
EXHIBIT C hereto and executed by the chief executive officer or chief
financial officer of the Loan Parties.
"CONSOLIDATED" and "CONSOLIDATING," and "CONSOLIDATED" and
"CONSOLIDATING" when used with reference to any term herein, shall mean
that term (or the terms "combined" and "combining", as the case may be, in
the case of partnerships, joint ventures and Affiliates that are not
Subsidiaries) as applied to the accounts of URHC (or other specified
Person) and all of its Subsidiaries (or other specified Persons), or such
of its Subsidiaries as may be specified, consolidated (or combined) in
accordance with generally accepted accounting principles and with
appropriate deductions for minority interests in Subsidiaries, as required
by generally accepted accounting principles.
"CONSOLIDATED CASH FLOW" shall mean for any period, the sum of (a)
the Consolidated Pre-Tax Income for such period, MINUS (b) cash income
taxes for such period, PLUS the sum of (c) the aggregate amount of
consolidated depreciation and amortization charges made in calculating
Consolidated Pre-Tax Income for such period, PLUS (d) the Consolidated
rent expense of URHC and its Subsidiaries PLUS (e) the Consolidated
Interest Expense of URHC and its Subsidiaries for such period, PLUS (f)
certain consolidated net non-cash charges approved by the Agents, PLUS (g)
certain one-time cash charges incurred in connection with the Merger in an
aggregate amount not to exceed $3,800,000 approved by the Agents, MINUS
(g) Consolidated Maintenance Capital Expenditures MINUS (h) Distributions
permitted pursuant to Section 9.8(b), (c) and (d) during such period.
"CONSOLIDATED EBITDA" shall mean for any period, the sum of (a) the
Consolidated Pre-Tax Income of URHC and its Subsidiaries for such period,
PLUS (b) the Consolidated Interest Expense of URHC and its Subsidiaries
for such period, PLUS (c) consolidated depreciation and amortization
expenses of URHC and its Subsidiaries for such period, PLUS (d) certain
consolidated net non-cash charges approved by the Agents and (e) certain
one-time cash charges incurred in connection with the Merger in an
aggregate amount not to exceed $3,800,000 approved by the Agents.
"CONSOLIDATED FINANCIAL OBLIGATIONS" shall mean for any period, the
sum of all scheduled payments (including without limitation, principal,
interest and commitment fees) on Indebtedness of URHC and its
Subsidiaries, including Capitalized Leases, PLUS (without duplication)
consolidated rent expense, which came due during such period.
"CONSOLIDATED FUNDED INDEBTEDNESS" shall mean as of any date of
determination, the sum of (a) Indebtedness of URHC and its Subsidiaries
for borrowed money (including, without limitation, Capitalized Lease
Obligations), PLUS (b) the Letter of Credit Exposure outstanding on such
date, PLUS (without duplication) (c) all Indebtedness guaranteed by URHC
or any of its Subsidiaries.
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"CONSOLIDATED INTEREST EXPENSE" shall mean consolidated interest
expense (including commitment and letter of credit fees) on Consolidated
Funded Indebtedness, as determined in accordance with GAAP consistently
applied, but in any event including all interest accrued, paid or
capitalized.
"CONSOLIDATED LEVERAGE RATIO" shall mean, as of any date of
determination, the ratio of (a) Consolidated Funded Indebtedness as of
such date to (b) Consolidated EBITDA for the period of four (4) fiscal
quarters ending on such date.
"CONSOLIDATED LIABILITIES" shall mean as at any date of
determination, the total of all liabilities of URHC and its Subsidiaries
outstanding on such date, determined in accordance with GAAP on a
consolidated basis.
"CONSOLIDATED MAINTENANCE CAPITAL EXPENDITURES" shall mean all
Capital Expenditures other than those Capital Expenditures (including
restaurant pre-opening costs) for existing concept growth in amounts
reasonably acceptable to the Administrative Agent.
"CONSOLIDATED NET INCOME" shall mean net income (or deficit) of URHC
and its Subsidiaries for such period (determined on a consolidated basis),
after deducting all operating expenses, provisions for all taxes and
reserves (including reserves for deferred income taxes) and all other
proper deductions, all determined in accordance with GAAP on a
consolidated basis, after eliminating all intercompany transactions and
after deducting portions of income properly attributable to minority
interests, if any, in the stock and surplus of such Subsidiaries; PROVIDED
that there shall be excluded (but only to the extent otherwise included in
net income for such period):
(a) the income (or deficit) of any entity accrued prior to the
date it becomes a Subsidiary of such Person or is merged into or
consolidated with such Person or a Subsidiary of such Person;
(b) the income (or deficit) of any entity (other than a
Subsidiary of such Person) in which such Person or any of its
Subsidiaries has an ownership interest, except to the extent that
any such income has been actually received by such Person or such
Subsidiary in the form of dividends or similar distributions;
(c) the undistributed earnings of any Subsidiary of such
Person to the extent that the declaration or payment of dividends or
similar distributions by such Subsidiary is not at the time
permitted by the terms of its charter or any agreement, instrument,
judgment, decree, order, statute, rule or governmental regulation
applicable to such Subsidiary;
(d) any restoration to income of any contingency reserve,
except to the extent that provision for such reserve was made out of
income accrued during such period;
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(e) any aggregate net gain (but not any aggregate net loss)
reflected during such period arising from the sale, exchange or
other disposition of capital assets (such term to include all fixed
assets, whether tangible or intangible, all inventory sold in
conjunction with the disposition of fixed assets, and all
securities);
(f) any write-up of any asset;
(g) any net gain from the collection of the proceeds of life
insurance policies;
(h) any gain arising from the acquisition of any securities of
URHC or any of its Subsidiaries;
(i) any net income or gain (but not any net loss) reflected
during such period from any discontinued operations or the
disposition thereof, from any extraordinary events or from any prior
period adjustment;
(j) any deferred credit representing the excess of equity in
any Subsidiary of such Person at the date of acquisition over the
cost of the investment in such Subsidiary; and
(k) in the case of a successor to such Person by consolidation
or merger or as a transferee of its assets, any earnings of the
successor corporation prior to such consolidation, merger or
transfer of assets.
"CONSOLIDATED OPERATING LEASE EXPENSE" shall mean consolidated lease
expense incurred by URHC and its Subsidiaries under any operating leases,
as determined in accordance with GAAP.
"CONSOLIDATED PRE-TAX INCOME" shall mean for any period Consolidated
Net Income PLUS cash income taxes paid or payable for such period and any
reserves for taxes, to the extent deducted in the calculation of
Consolidated Net Income.
"CONSOLIDATED NET WORTH" shall mean the sum of the capital stock
(but excluding treasury stock and capital stock subscribed and unissued)
and surplus (including earned surplus, capital surplus and the balance of
the current profit and loss account not transferred to surplus) accounts
of URHC and its Subsidiaries appearing on a consolidated balance sheet of
URHC and its Subsidiaries prepared in accordance with GAAP as of the date
of determination, after eliminating all amounts properly attributable to
minority interests, if any, in the stock and surplus of Subsidiaries and
after deducting therefrom (without duplication of deductions):
(a) any write-up in the book value of any asset on the books
of URHC or any Subsidiary of URHC resulting from a revaluation
thereof subsequent to June 30, 2000;
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(b) the amounts, if any, at which any shares of stock of URHC
or any Subsidiary of URHC appear on the asset side of such balance
sheet; and
(c) the amounts at which any Investments (other than
Investments which are permitted by Section 9.3) appear on the asset
side of such balance sheet.
"CREDIT PARTICIPANTS" shall have the meaning set forth in Section
12.3 hereof.
"DEFAULT" shall mean an Event of Default or an event or condition
which with the passage of time or giving of notice, or both, would become
such an Event of Default.
"DISTRIBUTION" shall mean as to any Person: (a) the declaration or
payment of any dividend on or in respect of any shares of any class of
capital stock of such Person, other than dividends payable solely in
shares of common stock of such Person, (b) the purchase, redemption, or
other acquisition or retirement of any shares of any class of capital
stock of such Person directly or indirectly, (c) any other distribution on
or in respect of any shares of any class of capital stock of such Person,
(d) any setting apart or allocating any sum for the payment of any
dividend or distribution, or for the purchase, redemption or retirement of
any shares of capital stock of such Person and (e) any payment of,
principal of, interest on, or fees or any other amounts with respect to
Subordinated Indebtedness.
"ENVIRONMENTAL LAW" means any judgment, decree, order, law, license,
rule or regulation pertaining to environmental matters, or any federal,
state, county or local statute, regulation, rule, bylaw, ordinance, order
or decree relating to public health, welfare, the environment, or to the
storage, handling, treatment, processing, manufacturing, disposal, use or
generation of Hazardous Substances and worker health or safety, whether
now existing or hereafter enacted.
"ERISA" shall mean the Employee Retirement Income Security Act of
1974, as amended from time to time.
"EXCESS CASH FLOW AMOUNT" shall mean, for the applicable Excess Cash
Payment Period, Consolidated Pre-Tax Income plus depreciation and
amortization expense MINUS the sum of (a) Capital Expenditures in excess
of the amount financed by Loans and other Indebtedness permitted under
Section 9.1, (b) cash income taxes and (c) scheduled principal payments on
Indebtedness for borrowed money and any required principal payments on the
Loans pursuant to Section 4.1 and voluntary prepayments of the Term Loans
pursuant to Section 4.2.
"EXCESS CASH PAYMENT DATE" shall mean the date occurring 120 days
after the last day of each fiscal year of URHC, commencing with its fiscal
year ending September 29, 2002.
"EXCESS CASH PAYMENT PERIOD" shall mean, with respect to the
prepayment required on each Excess Cash Payment Date, the immediately
preceding fiscal year of
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URHC and its subsidiaries. The first Excess Cash Payment Period hereunder
shall be the period from and including the date hereof to and including
September 29, 2002.
"EXISTING LETTERS OF CREDIT" means the Letters of Credit described
as such on SCHEDULE 2.15 hereto.
"EXCLUDED AMORTIZATION EXPENSE" shall mean all amortization expense
of URHC and its Subsidiaries attributable to pre-opening costs of Company
Restaurants.
"EVENT OF DEFAULT" shall have the meaning set forth in Section 10.1
hereof.
"FEDERAL FUNDS EFFECTIVE RATE" shall mean for any day, a fluctuating
interest rate per annum 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, as published for such day (or,
if such day is not a Business Day, for the next preceding Business Day) by
the Federal Reserve Bank of New York, or, if such rate is not so published
for any day that is a Business Day, the average of the quotations for such
day on such transactions received by the Administrative Agent from three
(3) federal funds brokers of recognized standing selected by the
Administrative Agent.
"FEE LETTERS" shall have the meaning set forth in Section 2.8
hereof.
"FFCA FINANCING TRANSACTION" shall mean the sale and leaseback
transaction entered into by Saxet Corporation, Franklin Mills Pizzeria,
Inc., URI and U.S. Realty Advisors, LLC and/or its affiliate, pursuant to
the FFCA Sale-Lease Documents.
"FFCA MASTER LEASE" shall mean the Master Lease dated May 11, 2001
by and between Zuno Property, LLC and SLP.
"FFCA SALE-LEASEBACK DOCUMENTS" shall mean the FFCA Master Lease and
related sub-leases and the Sale-Leaseback Agreement, the Memorandum, the
Acknowledgement (each as defined in the FFCA Master Lease) and all other
documents executed in connection therewith or contemplated thereby.
"FRANCHISEE" shall mean each Person who operates a pizza restaurant
pursuant to a franchise agreement with PUC or any of its Affiliates.
"GENERALLY ACCEPTED ACCOUNTING PRINCIPLES" or "GAAP" shall mean
generally accepted accounting principles as defined by controlling
pronouncements of the Financial Accounting Standards Board, as from time
to time supplemented and amended.
"GOVERNMENTAL AUTHORITY" shall mean any nation or government, any
state or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions
of or pertaining to the government.
"GUARANTORS" shall mean, collectively, URHC, UFI, PUC, SLP and UHC,
and their respective successors and assigns, and "GUARANTOR" shall mean
any of them.
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"GUARANTY" or "GUARANTEE" or "GUARANTEES" shall include any
arrangement whereby a Person is or becomes liable in respect of any
Indebtedness or other obligation of another and any other arrangement
whereby credit is extended to another obligor on the basis of any promise
of a guarantor, whether that promise is expressed in terms of an
obligation to pay the Indebtedness of such obligor, or to purchase or
lease assets under circumstances that would enable such obligor to
discharge one or more of its obligations, or to maintain the capital, the
working capital, solvency or general financial condition of such obligor,
whether or not such arrangement is listed in the balance sheet of the
guarantor or referred to in a footnote thereto.
"GUARANTEED OBLIGATIONS" shall have the meaning set forth in Section
2.16 hereof.
"HAZARDOUS SUBSTANCES" shall have the meaning set forth in Section
5.17(b) hereof.
"INDEBTEDNESS" shall mean, as to any Person, all obligations,
contingent and otherwise, which in accordance with generally accepted
accounting principles consistently applied should be classified upon such
Person's balance sheet as liabilities, but in any event including
liabilities secured by any mortgage, pledge, security interest, lien,
charge or other encumbrance existing on property owned or acquired by such
Person whether or not the liability secured thereby shall have been
assumed, letters of credit open for account, obligations under acceptance
facilities, Capitalized Lease Obligations and all obligations on account
of Guarantees, endorsements and any other contingent obligations in
respect of the Indebtedness of others whether or not reflected on such
balance sheet or in a footnote thereto.
"INTELLECTUAL PROPERTY SECURITY AGREEMENT" shall mean the
Intellectual Property Security Agreement of even date herewith from PUC to
the Administrative Agent to secure Lender Obligations, in substantially
the form of EXHIBIT I.
"INTEREST PERIOD" shall mean with respect to each LIBOR Rate Loan,
the period commencing on the date of such LIBOR Rate Loan and ending one
(1), two (2), three (3) or six (6) months thereafter, as the Borrowers may
request as provided in Section 2.5 hereof, PROVIDED that:
(a) any Interest Period (other than an Interest Period
determined pursuant to clause (c) below) that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in the next calendar month, in
which case such Interest Period shall end on the immediately preceding
Business Day;
(b) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall, subject to clause (c) below, end on the last Business Day
of a calendar month;
(c) (i) any Interest Period applicable to a Revolving Credit
Advance that would otherwise end after the Revolving Credit Termination
Date shall end on the
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Revolving Credit Termination Date, (ii) any Interest Period applicable to
Term Loan A that would otherwise end after the Term Loan A Maturity Date
shall end on the Term Loan A Maturity Date, and (iii) any Interest Period
applicable to Term Loan B that would otherwise end after the Term Loan B
Maturity Date shall end on the Term Loan B Maturity Date; and
(d) notwithstanding clause (c) above, no Interest Period shall
have a duration of less than one (1) month, and if any Interest Period
applicable to any LIBOR Rate Loan would be for a shorter period, such
Interest Period shall not be available hereunder.
"INTEREST RATE PROTECTION AGREEMENT" means any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement,
interest rate hedging agreement, interest rate floor agreement or other
similar agreement or arrangement.
"INTERNAL REVENUE CODE" shall mean the Internal Revenue Code of 1986
as amended from time to time.
"INVESTMENT" shall mean (a) any stock, evidence of Indebtedness or
other security of another Person, (b) any loan, advance, contribution to
capital, extension of credit (except for current trade and customer
accounts receivable for inventory sold or services rendered in the
ordinary course of business and payable in accordance with customary trade
terms) to another Person, and (c) any purchase of (i) stock or other
securities of another Person or (ii) any business or undertaking of
another Person (whether by purchase of assets or securities), or any
commitment or option to make any such purchase if, in the case of an
option, the aggregate consideration paid for such option was in excess of
$100, or (d) any other investment, in all cases whether existing on the
date of this Agreement or thereafter made.
"ISSUING BANK" shall mean Fleet National Bank.
"LEASEHOLD MORTGAGES" shall mean either (i) the Leasehold Deed of
Trust, Security Agreement, Assignment of Leases and Rents and Fixture
Filing or (ii) the Leasehold Mortgage and Security Agreement, from each
Loan Party and Affiliate Guarantor that leases real property, to the Agent
to secure Lender Obligations, each in substantially the form of EXHIBIT J.
"LENDER AGREEMENTS" shall mean this Agreement, the Revolving Credit
Notes, the Term Notes, the Affiliate Guaranty Agreements, the Security
Documents, all Interest Rate Protection Agreements and any other present
or future agreement from time to time entered into between one or more
Loan Parties or any Subsidiary and the Administrative Agent or the
Lenders, each as from time to time amended or supplemented, and all
statements, reports and certificates delivered by the Borrower to the
Administrative Agent or the Lenders in connection therewith.
"LENDER OBLIGATIONS" shall mean all present and future obligations
and Indebtedness of the Loan Parties or any Subsidiary, including all
Affiliate Guarantors
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owing to the Administrative Agent or the Lenders (a) under this Agreement
or any other Lender Agreement, including, without limitation, the
obligations to pay the Indebtedness from time to time evidenced by the
Revolving Credit Notes and the Term Notes, and obligations to pay
interest, commitment fees, balance deficiency fees, charges, expenses and
indemnification from time to time owed under any Lender Agreement and (b)
under any Interest Rate Protection Agreements.
"LENDERS" shall mean (a) initially, each Lender listed on the
signature pages hereof, (b) any other Person who becomes a Successor
Lender hereunder in accordance with the terms of Section 12.2 hereof, and
(c) their respective successors.
"LETTER OF CREDIT" shall mean a letter of credit issued by the
Issuing Bank for the account of one or more Loan Parties in accordance
with Section 2.15 hereof, including each Existing Letter of Credit.
"LETTER OF CREDIT EXPOSURE" shall mean, at any time, the sum of (a)
the maximum aggregate amount that the beneficiaries may at any time draw
under outstanding Letters of Credit, as such aggregate amount may be
reduced from time to time pursuant to the terms of the Letters of Credit
and (b) all unpaid Reimbursement Obligations. "LETTER OF CREDIT FEE" shall
have the meaning set forth in Section 2.15(d) hereof.
"LETTER OF CREDIT PARTICIPATION" shall have the meaning set forth in
Section 2.15(i) hereof.
"LIBOR PRICING OPTION" shall mean the option granted to the Borrower
pursuant to Section 2.5 hereof to have interest on all or a portion of the
Loans computed on the basis of the Applicable LIBOR Rate for an applicable
Interest Period.
"LIBOR RATE" shall mean, as applicable to any LIBOR Rate Loan, the
rate per annum as determined on the basis of the offered rates for
deposits in U.S. dollars, for a period of time comparable to such LIBOR
Rate Loan which appears on the Telerate page 3750 as of 11:00 a.m. London
time on the day that is two (2) Business Days preceding the first day of
such LIBOR Rate Loan; PROVIDED, HOWEVER, if the rate described above does
not appear on the Telerate System on any applicable interest determination
date, the LIBOR Rate shall be the rate (rounded upward, if necessary, to
the nearest one hundred-thousandth of a percentage point), determined on
the basis of the offered rates for deposits in U.S. dollars for a period
of time comparable to such LIBOR Rate Loan which are offered by four (4)
major banks in the London interbank market at approximately 11:00 a.m.
London time, on the day that is two (2) Business Days preceding the first
day of such LIBOR Rate Loan as selected by the Administrative Agent. The
principal London office of each of the four (4) major London banks will be
requested to provide a quotation of its U.S. dollar deposit offered rate.
If at least two (2) such quotations are provided, the rate for that date
will be the arithmetic mean of the quotations. If fewer than two (2)
quotations are provided as requested, the rate for that date will be
determined on the basis of the rates quoted for loans in U.S. dollars to
leading European banks for a period of time comparable to such LIBOR Rate
Loan offered by major banks
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in New York City at approximately 11:00 a.m. New York City time, on the
day that is two (2) Business Days preceding the first day of such LIBOR
Rate Loan. In the event that the Administrative Agent is unable to obtain
any such quotation as provided above, it will be deemed that the LIBOR
Rate for a requested LIBOR Rate Loan cannot be determined. In the event
that the Board of Governors of the Federal Reserve System shall impose a
Reserve Percentage with respect to LIBOR deposits of any Lender, then for
any period during which such Reserve Percentage shall apply, the LIBOR
Rate shall be equal to the amount determined above divided by an amount
equal to 1 MINUS the Reserve Percentage. "Reserve Percentage" shall mean
the maximum aggregate reserve requirement (including all basic,
supplemental, marginal and other reserves) which is imposed on member
banks of the Federal Reserve System against "Euro-currency Liabilities" as
defined in Regulation D of the Board of Governors of the Federal Reserve
System. The LIBOR Rate shall be adjusted automatically as of the effective
date of any change in the Reserve Percentage.
"LIBOR RATE LOAN" shall mean any Loan hereunder upon which interest
will accrue on the basis of a formula including as a component thereof the
LIBOR Rate. The expiration date of any LIBOR Rate Loan shall be the last
day of the Interest Period applicable to such LIBOR Rate Loan.
"LIBOR RATE MARGIN" shall mean a rate per annum determined in
accordance with the Pricing Schedule.
"LOAN" shall mean all or a portion of any Term Loan and any
Revolving Credit Advance outstanding hereunder or made to the Borrowers by
the Lenders pursuant to Article 2 of this Agreement, and "Loans" means all
of such loans, collectively.
"LOAN PARTIES" shall mean the Borrowers and the Guarantors.
"MAJORITY LENDERS" shall mean, at any time, the Lenders having made
not less than 66? % of the sum of (a) the outstanding principal amount of
the Loans hereunder, and (b) the Unused Revolving Credit Commitments.
"MATERIAL ADVERSE CHANGE" means a change that has resulted or would
result in a Material Adverse Effect.
"MATERIAL ADVERSE EFFECT" shall mean a material adverse effect on
the business, assets, properties, prospects or condition, financial or
otherwise, of (a) any Borrower or PUC, or (b) URHC and its Subsidiaries
taken as a whole.
"MAXIMUM REVOLVING CREDIT AMOUNT" shall mean as of any date of
determination, the lesser of (a) $20,000,000 or (b) the amount to which
the Maximum Revolving Credit Amount may have been reduced pursuant to
Section 2.11 or Section 4.1(c) hereof; PROVIDED that if the obligation of
the Lenders to make further Revolving Credit Advances is terminated
pursuant to Article 10, the Maximum Revolving Credit Amount as of any date
of determination thereafter shall be deemed to be $0.
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"MERGER" shall mean the acquisition of URC by URHC by means of a
merger of Acquisition with and into URC.
"MERGER AGREEMENT" shall mean the Agreement and Plan of Merger,
dated as of April 19, 2001 among URC, URHC and Acquisition pursuant to
which URHC will acquire URC.
"METLIFE NOTES" shall mean the $1,875,000 8.75% Note dated December
23, 1996 of 8250 International Drive Corporation, the $825,000 8.75% Note
dated December 23, 1996 of Saxet Corporation, the $900,000 8.75% Note
dated December 23, 1996 of Saxet Corporation, the $675,000 8.75% Note
dated January 30, 1997 of Saxet Corporation, and the $825,000 8.75% Note
dated February 27, 1997 of Saxet Corporation, each payable to the order of
MetLife Capital Financial Corporation and each with a related Guaranty
executed by URC.
"NET CASH PROCEEDS" shall mean cash proceeds net of all reasonable
and customary brokerage commissions, legal fees, accounting fees,
investment banking fees, trustee's fees, finder's fees and other similar
fees and commissions.
"1997 CREDIT AGREEMENT" shall mean the Amended and Restated
Revolving Credit and Term Loan Agreement dated as of November 4, 1997, as
amended, by and among URI and Saxet Corporation, as borrowers, UFI, PUC,
UHC and URC, as loan parties and Fleet and Suntrust as co-agents.
"NOTES" shall mean the Revolving Credit Notes and the Term Notes.
"NOTICE OF REVOLVING CREDIT BORROWING" shall have the meaning set
forth in Section 2.3(a).
"OPERATING CASH FLOW" shall mean with reference to any period and
with respect to each Company Restaurant, (a) operating revenues for such
Company Restaurant for such period, MINUS (b) operating expenses for such
Company Restaurant for such period, PLUS (c) the sum of depreciation and
amortization expense and deferred rental expense attributable to assets
located at such Company Restaurant for such period, all as determined in
accordance with GAAP consistently applied, PLUS (d) free rent and rent
increases over the terms of leases calculated using the straight line
method.
"PENSION PLAN" shall mean an employee benefit plan or other plan
maintained for the employees of URHC or any Subsidiary as described in
Section 4021(a) of ERISA.
"PERMITTED LIENS" shall mean the liens, security interests and other
encumbrances permitted by Section 9.2.
"PERSON" shall mean an individual, corporation, partnership, joint
venture, limited liability company, association, estate, joint stock
company, trust, organization, business, or a government or agency or
political subdivision thereof.
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"PLEDGE AGREEMENT" shall mean the Pledge Agreements of even date
herewith from URHC, each of the Loan Parties and each of the Affiliate
Guarantors to the Administrative Agent to secure Lender Obligations, each
substantially in the form of EXHIBIT H.
"PRICING NOTICE" shall have the meaning set forth in Section 2.5
hereof.
"PRICING SCHEDULE" shall mean the Pricing Schedule attached hereto
as SCHEDULE 2.
"PRIME RATE" shall mean the variable per annum rate of interest so
designated from time to time by the Administrative Agent as its prime
rate. The Prime Rate is a reference rate and does not necessarily
represent the lowest or best rate being charged to any customer.
"REIMBURSEMENT OBLIGATION" shall have the meaning set forth in
Section 2.15(c) hereof.
"RENTAL OBLIGATIONS" shall mean with reference to any period, the
aggregate amount of all minimum or guaranteed net rentals for which URHC
and its Subsidiaries are directly or indirectly liable (as lessee or as
guarantor or other surety) under all leases in effect at any time during
such period, including all amounts for which any Person was so liable
during such period accrued prior to the date such Person becomes a
Subsidiary or was merged or consolidated with URHC or any of its
Subsidiaries.
"REPORTABLE EVENT" shall mean an event reportable to the Pension
Benefit Guaranty Corporation under Section 4043 of Title IV of ERISA.
"REVOLVING COMMITMENT FEE" shall have the meaning set forth in
Section 2.8(a) hereof.
"REVOLVING CREDIT ADVANCE" shall mean any loan or advance from any
Lender to the Borrowers pursuant to Section 2.2 of this Agreement.
"REVOLVING CREDIT NOTES" shall mean the Revolving Credit Notes
substantially in the form of EXHIBIT A-1 hereto executed by the Borrowers
in favor of each Lender to evidence the Revolving Credit Advances to be
made by the Lenders from time to time hereunder.
"REVOLVING CREDIT TERMINATION DATE" shall mean July 31, 2006.
"SECURITY AGREEMENT" shall mean the Security Agreements of even date
herewith from each of the Loan Parties and the Affiliate Guarantors to the
Administrative Agent to secure Lender Obligations, each in substantially
the form of EXHIBIT G.
"SECURITY DOCUMENTS" shall mean the Security Agreements, the
Intellectual Property Security Agreement, the Pledge Agreements, the
Leasehold Mortgages, the Collateral Pledge and Assignment of License,
uniform commercial code financing
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statements and all other instruments that shall from time to time be
identified by the Administrative Agent as Security Documents.
"SPENCER I FINANCING TRANSACTION" shall mean the sale and leaseback
transaction entered into by Spencer Family, LLC and SLA Mail Inc. pursuant
to the Spencer I Sale-Leaseback Documents.
"SPENCER I MASTER LEASE" shall mean the Master Lease dated July 31,
2001 by and between Spencer Family, LLC and SLA Mail, Inc.
"SPENCER I SALE-LEASEBACK DOCUMENTS" shall mean the Spencer I Master
Lease and related subleases and the Sale-Leaseback Agreement, the
Memorandum, the Acknowledgements (each as defined in the Spencer I Master
Lease), the Subordination, Attornment and Lessee-Lessor Estoppel
Agreement, and all other documents executed in connection therewith or
contemplated thereby.
"SPENCER II FINANCING TRANSACTION" shall mean the sale and leaseback
transaction entered into by Spencer Family, LLC, Saxet Corporation and UFI
pursuant to the Spencer II Sale-Leaseback Documents.
"SPENCER II MASTER LEASE" shall mean the Master II Lease dated July
31, 2001 by and between Spencer Family, LLC and SLA Mail II, Inc..
"SPENCER II SALE-LEASEBACK DOCUMENTS" shall mean the Spencer II
Master Lease and related subleases and the Sale-Leaseback Agreement, the
Memorandum, the Acknowledgements (each as defined in the Spencer II Master
Lease) and all other documents executed in connection therewith or
contemplated thereby.
"SUBORDINATED INDEBTEDNESS" shall mean Indebtedness of the Loan
Parties which is subordinated to the Indebtedness of the Loan Parties
hereunder and under the Revolving Credit Notes and the Term Notes and to
all other Lender Obligations, on terms and conditions approved in writing
by the Administrative Agent.
"SUBSIDIARY" shall mean any Person of which URHC or other specified
parent shall now or hereafter at the time own, directly or indirectly
through one or more subsidiaries or otherwise, sufficient voting stock (or
other beneficial interest) to entitle it to elect at least a majority of
the board of directors or trustees or similar managing body.
"SUCCESSOR LENDER" shall have the meaning set forth in Section
12.2(a) hereof.
"SYNDICATION AGENT" shall mean SunTrust Bank, in its capacity as
syndication agent for the Lenders, and its successors in that capacity.
"TERM LOAN A" shall mean the term loan made to Acquisition pursuant
to Section 2.1(a).
"TERM LOAN A MATURITY DATE" shall mean July 31, 2006.
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"TERM LOAN A NOTES" shall mean the Term Loan A Notes substantially
in the form of EXHIBIT A-2 hereto executed by Acquisition in favor of each
Lender to evidence Term Loan A.
"TERM LOAN B" shall mean the term loan made to Acquisition pursuant
to Section 2.1(b).
"TERM LOAN B MATURITY DATE" shall mean July 31, 2007.
"TERM LOAN B NOTES" shall mean the Term Loan B Notes substantially
in the form of EXHIBIT A-3 hereto executed by Acquisition in favor of each
Lender to evidence Term Loan B.
"TERM LOAN MATURITY DATE" shall mean the Term Loan A Maturity Date
or the Term Loan B Maturity Date B, as applicable.
"TERM LOANS" means Term Loan A and Term Loan B.
"TERM NOTES" shall mean the Term Loan A Notes and the Term Loan B
Notes.
"TITLE POLICY" shall mean a Leasehold Mortgagee Policy of Title
Insurance which (a) is in the form of American Land Title Association
Standard Loan Policy - 1970 (without modification, revision or amendment)
(or such other form as approved by the Administrative Agent) with
endorsements requested by the Administrative Agent and in amounts
satisfactory to the Administrative Agent (b) insures that the grantor of
the lien insured by such policy owns the property pursuant to a leasehold
estate and that the Leasehold Mortgage covering such property is a valid
first lien on such leasehold property in favor of the Administrative Agent
for the benefit of the Lenders (subject only to Permitted Liens), and (c)
does not contain any exceptions for rights of parties in possession, or
unpaid delinquent installment of taxes, special assessments or subsequent
assessments due to changes in ownership or usage, or any other exceptions
to coverage other than Permitted Liens.
"2000 FINANCIAL STATEMENTS" shall mean the Consolidated Balance
Sheet of URC and its Subsidiaries as of October 1, 2000 and the related
Consolidated Statements of Income, Shareholders' Equity and Cash Flow for
the year then ended and notes to such financial statements.
"UNIFORM CUSTOMS AND PRACTICE" shall mean the Uniform Customs and
Practice for Documentary Credits (1993 Revision) International Chamber of
Commerce Publication No. 500.
"UCC" shall mean the Uniform Commercial Code, in effect in the
appropriate jurisdiction, as amended from time to time.
"UNUSED REVOLVING CREDIT COMMITMENTS" shall mean the Maximum
Revolving Credit Amount in effect at such time LESS the principal balance
of the Revolving Credit Advances less the Letter of Credit Exposure.
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Section 1.2. ACCOUNTING TERMS. All accounting terms used and not defined
in this Agreement shall be construed in accordance with generally accepted
accounting principles consistently applied, and all financial data required to
be delivered hereunder shall be prepared in accordance with such principles.
ARTICLE 2. THE CREDITS
Section 2.1. THE TERM LOANS.
(a) Subject to the terms and conditions of this Agreement, including
satisfaction of the conditions set forth in Section 3.1, on the Closing Date
each Lender shall severally make a term loan to Acquisition, in the amount of
such Lender's respective Commitment Percentage of $40,000,000 (collectively the
"Term Loan A"). On the Closing Date, (i) and immediately prior to the effective
time of the Merger, Acquisition shall execute and deliver to each Lender a Term
Note A to evidence the portion of the Term Loan A made by such Lender and (ii)
upon the effective time of the Merger, the Borrowers, jointly and severally,
shall execute and deliver to each Lender a Term Note A to evidence the portion
of the Term Loan A made by such Lender to the Borrowers which Term Notes shall
replace and be in substitution of the Term Notes executed by Acquisition.
(b) Subject to the terms and conditions of this Agreement, including
satisfaction of the conditions set forth in Section 3.1, on the Closing Date
each Lender shall severally make a term loan to Acquisition, in the amount of
such Lender's respective Commitment Percentage of $15,000,000 (collectively the
"Term Loan B"). On the Closing Date, (i) and immediately prior to the effective
time of the Merger, Acquisition shall execute and deliver to each Lender Term
Note B to evidence the portion of the Term Loan B made by such Lender and (ii)
upon the effective time of the Merger, the Borrowers, jointly and severally,
shall execute and deliver to each Lender a Term Note B to evidence the portion
of the Term Loan B made by such Lender to the Borrowers which Term Notes shall
replace and be in substitution of the Term Notes executed by Acquisition.
(c) The Term Loans shall be repaid in quarterly installments in the
following amounts, due and payable on the last day of each January, April, July
and October, commencing January 31, 2002, as follows:
TERM LOAN A TERM LOAN B
PAYMENT DATE INSTALLMENT AMOUNT INSTALLMENT AMOUNT
------------ ------------------ ------------------
January 31, 2002 $1,333,333 $25,000
April 30, 2002 $1,333,333 $25,000
July 31, 2002 $1,333,334 $25,000
October 31, 2002 $1,875,000 $41,250
January 31, 2003 $1,875,000 $41,250
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April 30, 2003 $1,875,000 $41,250
July 31, 2003 $1,875,000 $41,250
October 31, 2003 $2,125,000 $41,250
January 31, 2004 $2,125,000 $41,250
April 30, 2004 $2,125,000 $41,250
July 31, 2004 $2,125,000 $41,250
October 31, 2004 $2,375,000 $41,250
January 31, 2005 $2,375,000 $41,250
April 30, 2005 $2,375,000 $41,250
July 31, 2005 $2,375,000 $41,250
October 31, 2005 $2,625,000 $41,250
January 31, 2006 $2,625,000 $41,250
April 30, 2006 $2,625,000 $41,250
July 31, 2006 $2,625,000 $41,250
October 31, 2006 $41,250
January 31, 2007 $41,250
April 30, 2007 $41,250
July 31, 2007 $14,141,250
$40,000,000 $15,000,000
The final principal installment for each Term Loan shall be due on the
applicable Term Loan Maturity Date, together with all outstanding principal,
accrued interest and other fees and charges hereunder related to such Term Loan.
Section 2.2. THE REVOLVING CREDIT.
(a) Subject to the terms and conditions of this Agreement and so
long as there exists no Default, at any time after the effective time of the
Merger and prior to the Revolving Credit Termination Date, each Lender,
severally and not jointly, shall make such Revolving Credit Advances to the
Borrowers, jointly and severally, as URI, as agent for the Borrowers, may
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from time to time request, by notice to the Administrative Agent in accordance
with Section 2.3, in an aggregate amount (i) as to each Lender, not to exceed at
any time such Lender's Commitment Percentage of the Maximum Revolving Credit
Amount, LESS such Lender's Commitment Percentage of the Letter of Credit
Exposure, and (ii) as to all Lenders, not to exceed the Maximum Revolving Credit
Amount LESS the Letter of Credit Exposure. The outstanding principal amount of
the Revolving Credit Advances, together with all accrued interest and other fees
and charges related thereto, shall be repaid in full on the Revolving Credit
Termination Date. On the Closing Date the Borrowers, jointly and severally,
shall execute and deliver to each Lender a Revolving Credit Note to evidence the
Revolving Credit Advances from time to time made by such Lender to the Borrowers
hereunder.
(b) Subject to the foregoing limitations and the provisions of
Section 4.2, the Borrowers shall have the right to make prepayments reducing the
outstanding balance of Revolving Credit Advances and to request further
Revolving Credit Advances, all in accordance with Section 2.3, without other
restrictions hereunder; PROVIDED that the Lenders shall have the absolute right
to refuse to make any Revolving Credit Advances for so long as there exists any
Default or any other condition which would constitute a Default upon the making
of such a Revolving Credit Advance.
Section 2.3. MAKING OF REVOLVING CREDIT ADVANCES.
(a) Each Revolving Credit Advance shall be made on notice given by
URI, as agent for the Borrowers, to the Administrative Agent not later than
12:00 noon (Boston time) on the date of the proposed Borrowing (a "Notice of
Revolving Credit Borrowing"); PROVIDED, HOWEVER, that if the Borrowers elect a
LIBOR Rate Pricing Option with respect to any Revolving Credit Advance in
accordance with Section 2.5 hereof, such Notice of Revolving Credit Borrowing
shall be given by URI contemporaneously with a Pricing Notice in the manner and
within the time specified in Section 2.5. The Administrative Agent shall give
the Lenders notice of each Notice of Revolving Credit Borrowing in accordance
with the Administrative Agent's customary practice. Each such Notice of
Revolving Credit Borrowing shall be by telephone or telecopy, in each case
confirmed immediately in writing by URI in substantially the form of EXHIBIT B
hereto, specifying therein (i) the requested date of such Revolving Credit
Advance, and (ii) the amount of such Revolving Credit Advance (which must be a
minimum of $100,000). The Borrowers, jointly and severally, agree to indemnify
and hold the Lenders harmless for any action, including the making of any
Revolving Credit Advances hereunder, or loss or expense, taken or incurred by
the Administrative Agent and the Lenders in good faith reliance upon such
telephone request. At the time of the initial request for a Revolving Credit
Advance made under this Section 2.3, the Borrowers, jointly and severally, shall
have provided the Administrative Agent with a Compliance Certificate. The
Borrowers, hereby agree, jointly and severally, (i) that the Lenders shall be
entitled to rely upon the Compliance Certificate most recently delivered to the
Administrative Agent until it is superseded by a more recent Compliance
Certificate, and (ii) that each request for a Revolving Credit Advance, whether
by telephone or in writing or otherwise, shall constitute a confirmation of the
representations and warranties contained in the most recent Compliance
Certificate then in the Administrative Agent's possession.
(b) Subject to the terms and conditions of this Agreement, each
Lender shall make available on or before 2:00 p.m. on the date of each proposed
Revolving Credit Advance,
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to the Administrative Agent at the Administrative Agent's address and in
immediately available funds, such Lender's Commitment Percentage of such
Revolving Credit Advance. After the Administrative Agent's receipt of such funds
and upon fulfillment of the applicable conditions set forth in Article 3, the
Administrative Agent will credit such funds to URI's account on the date of the
proposed Revolving Credit Advance.
(c) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Revolving Credit Advance that such Lender will
not make available to the Administrative Agent such Lender's Commitment
Percentage of such Revolving Credit Advance, the Administrative Agent may assume
that such Lender has made such amount available to the Administrative Agent on
the date of such Revolving Credit Advance in accordance with and as provided in
this Section 2.3 and the Administrative Agent may, in reliance upon such
assumption, make available on such date a corresponding amount to the Borrowers.
If and to the extent such Lender shall not have so made its Commitment
Percentage of such Revolving Credit Advance available to the Administrative
Agent and the Administrative Agent shall have made available such corresponding
amount to the Borrowers, such Lender agrees to pay to the Administrative Agent
forthwith on demand, and the Borrowers, jointly and severally, agree to repay to
the Administrative Agent within two (2) Business Days after demand (but only
after demand for payment has first been made to such Lender and such Lender has
failed to make such payment), an amount equal to such corresponding amount
together with interest thereon for each day from the date the Administrative
Agent shall make such amount available to the Borrowers until the date such
amount is paid or repaid to the Administrative Agent, at an interest rate equal
to the interest rate applicable at the time to such Revolving Credit Advances.
If such Lender shall pay to the Administrative Agent such corresponding amount,
such amount so paid shall constitute such Lender's Revolving Credit Advance for
purposes of this Agreement. If the Borrowers make a repayment required by the
foregoing provisions of this Section 2.3(c) and thereafter the applicable Lender
or Lenders make the payments to the Administrative Agent required by this
Section 2.3(c), the Administrative Agent shall promptly refund the amount of the
Borrowers' payment.
(d) The failure of any Lender to make the Revolving Credit Advance
to be made by it on any date shall not relieve any other Lender of its
obligation, if any, hereunder to make its Revolving Credit Advance on such date,
but no Lender shall be responsible for the failure of any other Lender to make
the Revolving Credit Advance to be made by such other Lender.
Section 2.4. INTEREST ON LOANS. Subject to the terms of Section 2.5
relating to LIBOR Pricing Options, the Borrowers, jointly and severally, shall
pay interest on the unpaid principal balance of the Loans from time to time
outstanding at a rate per annum equal to the Applicable Base Rate. Interest on
the Loans shall be payable quarterly in arrears on the last day of each October,
January, April and July, commencing October 31, 2001 and continuing until the
Loans shall have been paid in full.
Section 2.5. ELECTION OF LIBOR PRICING OPTIONS.
(a) Subject to all the terms and conditions hereof and so long as
there exists no Default, the Borrowers may, by delivering a Pricing Notice to
the Administrative Agent
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received at or before 10:00 a.m. Boston time on the date two (2) Business Days
prior to the commencement of the Interest Period selected in such Pricing
Notice, elect to have all or a portion of the outstanding Loans, as URI, as
agent for the Borrowers, may specify in such Pricing Notice, accrue and bear
daily interest during the Interest Period so selected at a per annum rate equal
to the Applicable LIBOR Rate for such Interest Period; PROVIDED, HOWEVER, that
any such election made with respect to the Loans shall be in an amount not less
than $500,000 and in increments of $100,000; and PROVIDED FURTHER that no such
election will be made if it would result in there being more than four (4) LIBOR
Pricing Options in the aggregate outstanding at any one time. Interest on Loans
bearing interest at the Applicable LIBOR Rate shall be paid for the applicable
Interest Period on the last day thereof and when such Loan is due (whether at
maturity, by reason of acceleration or otherwise) and if such Interest Period is
longer than three (3) months, at intervals of three (3) months after the first
day thereof.
(b) Each Pricing Notice shall be substantially in the form of
EXHIBIT D attached hereto and shall specify: (i) the selection of a LIBOR
Pricing Option; (ii) the effective date and amount of Revolving Credit Advances
or Term Loans or portion thereof subject to such LIBOR Pricing Option, subject
to the limitations set forth herein; and (iii) the duration of the applicable
Interest Period. Each Pricing Notice shall be irrevocable.
(c) The Administrative Agent will promptly inform each Lender of a
Pricing Notice and the Interest Period specified by the Borrower therein. Upon
determination by the Administrative Agent of the Applicable LIBOR Rate for any
Interest Period selected by the Borrowers, the Administrative Agent will
promptly inform URI, as agent for the Borrowers and each Lender of such
Applicable LIBOR Rate so determined or, if applicable, the reason why the
Borrower's election will not become effective.
Section 2.6. ADDITIONAL PAYMENTS.
(a) During the continuance of any Event of Default (whether or not
any of the Lender Obligations have been accelerated), or after maturity or after
any judgment has been rendered on the Notes, the Borrowers shall, jointly and
severally, on demand, pay to the Administrative Agent for the account of the
Lenders interest on the unpaid principal balance of the Revolving Credit
Advances and the Term Loans and, to the extent permitted by law, on any overdue
installments of interest, at a rate per annum equal to the lesser of (i) the
stated interest rates for Base Rate Loans PLUS 3% per annum, and (ii) the
maximum rate of interest permitted to be charged under applicable law.
(b) In addition to any amounts payable under Section 2.6(a) above,
if the entire amount of any required payment of principal or interest due
hereunder is not paid in full within ten (10) days after the same is due, the
Borrowers shall, jointly and severally, pay to the Administrative Agent for the
account of the Lenders, on demand, a late fee equal to 5% of the amount of such
payment; PROVIDED, HOWEVER, that the provisions of this Section 2.6(b) shall not
limit the Administrative Agent's and the Lenders' rights to exercise any of
their rights or remedies, including those provided in Section 10.2, if an Event
of Default has occurred.
Section 2.7. COMPUTATION OF INTEREST, ETC. All computations of interest
hereunder and under the Term Loans and the Revolving Credit Advances shall be
made on the basis of a 360-
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day year and the actual number of days elapsed. Any increase or decrease in the
interest rate on the Term Loans and the Revolving Credit Advances resulting from
a change in the Base Rate shall be effective immediately from the date of such
change. No interest payment or interest rate charged hereunder shall exceed the
maximum rate authorized from time to time by applicable law. The outstanding
balance of the Revolving Credit Notes and the Term Notes as reflected on the
Administrative Agent's records from time to time shall be considered correct and
binding on the Borrower and the Lenders (absent manifest error) unless within
thirty (30) days after receipt of any notice by the Administrative Agent or any
Lender of such outstanding amount, URI, as agent for the Borrowers or a Lender
notifies the Administrative Agent to the contrary.
Section 2.8. FEES.
(a) The Borrowers, jointly and severally, shall pay to the
Administrative Agent, for the accounts of the Lenders in accordance with their
respective Commitment Percentages, a commitment fee (the "Revolving Commitment
Fee") computed at a rate of 0.50% per annum on the average daily unused amount
of the Maximum Revolving Credit Amount (i.e. the Maximum Revolving Credit Amount
LESS the principal balance of the Revolving Credit Advances and the Letter of
Credit Exposure) from time to time in effect from the date hereof to and
including the Revolving Credit Termination Date. The Revolving Commitment Fee
shall be payable quarterly in arrears on the last day of each October, January,
April and July, commencing October 31, 2001, for the quarter then ended.
(b) The Borrowers, jointly and severally, shall pay to the
Administrative Agent and Syndication Agent, for their own account, such closing,
syndication and agency fees as are provided in letter agreements dated as of May
11, 2001 between the Borrowers and the Administrative Agent and Syndication
Agent (as such letter agreement may from time to time be amended or
supplemented, the "Fee Letters").
Section 2.9. SET-OFF. To the extent not prohibited by applicable law, each
Loan Party hereby grants the Administrative Agent and each Lender, a continuing
lien, security interest and right of setoff as security for all liabilities and
obligations to the Administrative Agent and the Lenders, whether now existing or
hereafter arising, upon and against all deposits, credits, collateral and
property, now or hereafter in the possession, custody, safekeeping or control of
the Administrative Agent and each Lender or any entity under the control of
FleetBoston Financial Corporation and its successors and assigns or in transit
to any of them. At any time, without demand or notice (any such notice being
expressly waived by each Loan Party), the Administrative Agent and each Lender
may setoff the same or any part thereof and apply the same to any liability or
obligation of the Loan Parties even though unmatured and regardless of the
adequacy of any other collateral securing the Lender Obligations. ANY AND ALL
RIGHTS TO REQUIRE THE AGENT OR ANY LENDER TO EXERCISE ITS RIGHTS OR REMEDIES
WITH RESPECT TO ANY OTHER COLLATERAL WHICH SECURES THE LENDER OBLIGATIONS, PRIOR
TO EXERCISING ITS RIGHT OF SETOFF WITH RESPECT TO SUCH DEPOSITS, CREDITS OR
OTHER PROPERTY OF THE LOAN PARTIES, ARE HEREBY KNOWINGLY, VOLUNTARILY AND
IRREVOCABLY WAIVED.
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Section 2.10. SHARING OF PAYMENTS. If any Lender shall obtain any payment
(whether voluntary, involuntary, through the exercise of any right of set-off,
or otherwise) on account of the Loans made by it in excess of its ratable share
(according to the then outstanding principal amount of the Loans) of payments on
account of the Loans obtained by all the Lenders, such Lender shall purchase
from the other Lenders such participations in the Loans held by such other
Lenders as shall cause such purchasing Lender to share such payment ratably
according to the then outstanding principal amount of the Loans with each of
such other Lenders; PROVIDED, that if all or any portion of such payment is
thereafter recovered from such purchasing Lender, the purchase shall be
rescinded and the purchase price restored to the extent of such recovery, with
interest at an interest rate per annum equal to the Applicable Base Rate. The
Loan Parties agree that any Lender so purchasing a participation in the Loans
from another Lender pursuant to this Section 2.10 may, to the fullest extent
permitted by law, exercise all its rights of payment with respect to such
participation as fully as if such Lender were the direct creditor of the Loan
Parties in the amount of such participation.
Section 2.11. REDUCTION OF COMMITMENT BY THE BORROWERS. The Borrowers at
their option may, at any time and from time to time, irrevocably reduce in part
(in integral multiples of $500,000) the unused portion of the Maximum Revolving
Credit Amount on not less than five (5) Business Days' prior written notice to
the Administrative Agent. No such reduction, may be reinstated by the Borrower.
Section 2.12. INCREASED COSTS, ETC.
(a) Anything herein to the contrary notwithstanding, if any changes
in present or future applicable law (which term "applicable law", as used in
this Agreement, includes statutes and rules and regulations thereunder and
interpretations thereof by any competent court or by any governmental or other
regulatory body or official charged with the administration or the
interpretation thereof and requests, directives, instructions and notices at any
time or from time to time heretofore or hereafter made upon or otherwise issued
to any Lender by any central bank or other fiscal, monetary or other authority,
whether or not having the force of law), including without limitation any change
according to a prescribed schedule of increasing requirements, whether or not
known or in effect as of the date hereof, shall (i) subject such Lender to any
tax, levy, impost, duty, charge, fee, deduction or withholding of any nature
with respect to this Agreement or the payment to such Lender of any amounts due
to it hereunder, or (ii) materially change the basis of taxation of payments to
such Lender of the principal of or the interest on the Revolving Credit Advances
or the Term Loans or any other amounts payable to such Lender hereunder, or
(iii) impose or increase or render applicable any special or supplemental
deposit or reserve or similar requirements or assessment against assets held by,
or deposits in or for the account of, or any liabilities of, or loans by an
office of such Lender in respect of the transactions contemplated herein, or
(iv) impose on such Lender any other condition or requirement with respect to
this Agreement or any Revolving Credit Advance or any Term Loan, and the result
of any of the foregoing is (A) to increase the cost to such Lender of making,
funding or maintaining all or any part of the Revolving Credit Advances or the
Term Loans or its commitment hereunder, or (B) to reduce the amount of
principal, interest or other amount payable to such Lender hereunder, or (C) to
require such Lender to make any payment or to forego any interest or other sum
payable hereunder, the amount of which payment or foregone interest or other sum
is calculated by reference to the gross amount of any sum receivable or
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deemed received by such Lender from the Borrowers, jointly and severally,
hereunder, then, and in each such case not otherwise provided for hereunder, the
Borrowers, jointly and severally, will upon demand made by such Lender promptly
following such Lender's receipt of notice pertaining to such matters accompanied
by calculations thereof in reasonable detail, pay to such Lender such additional
amounts as will be sufficient to compensate such Lender for such additional
cost, reduction, payment or foregone interest or other sum; PROVIDED that the
foregoing provisions of this sentence shall not apply in the case of any
additional cost, reduction, payment or foregone interest or other sum resulting
from any taxes charged upon or by reference to the overall net income, profits
or gains of any Lender. In determining the additional amounts payable hereunder,
the Lenders may use any reasonable method of averaging, allocating or
attributing such additional costs, reductions, payments, foregone interest or
other sums among their respective customers.
(b) Anything herein to the contrary notwithstanding, if, after the
date hereof, any Lender shall have determined that any present or future
applicable law, rule, regulation, guideline, directive or request (whether or
not having force of law), including without limitation any change according to a
prescribed schedule of increasing requirements, whether or not known or in
effect as of the date hereof, regarding capital requirements for banks or bank
holding companies generally, or any change therein or in the interpretation or
administration thereof by any Governmental Authority, central bank or comparable
agency charged with the interpretation or administration thereof, or compliance
by such Lender with any of the foregoing, either imposes a requirement upon such
Lender to allocate additional capital resources or increases such Lender's
requirement to allocate capital resources or such Lender's commitment to make,
or to such Lender's maintenance of, the Revolving Credit Advances or the Term
Loans hereunder, which has or would have the effect of reducing the return on
such Lender's capital to a level below that which such Lender could have
achieved (taking into consideration such Lender's then existing policies with
respect to capital adequacy and assuming full utilization of such Lender's
capital) but for such applicability, change, interpretation, administration or
compliance, by any amount deemed by such Lender to be material, such Lender
shall promptly after its determination of such occurrence give notice thereof to
the Borrowers. In such event commencing on the date of such notice (but not
earlier than the effective date of any such applicability, change,
interpretation, administration or compliance), the fees payable hereunder shall
increase by an amount which will, in such Lender's reasonable determination,
evidenced by calculations in reasonable detail furnished to the Borrowers,
compensate such Lender for such reduction, such Lender's determination of such
amount to be conclusive and binding upon the Borrowers, absent manifest error.
In determining such amount, such Lender may use any reasonable methods of
averaging, allocating or attributing such reduction among its customers.
Section 2.13. CHANGED CIRCUMSTANCES. In the event that:
(a) on any date on which the Applicable LIBOR Rate would otherwise
be set the Administrative Agent shall have determined in good faith (which
determination shall be final and conclusive) that adequate and fair means do not
exist for ascertaining the LIBOR Rate, as applicable; or
(b) at any time the Administrative Agent shall have determined in
good faith (which determination shall be final and conclusive) that
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(i) the implementation of LIBOR Pricing Option has been
made impracticable or unlawful by (A) the occurrence of a
contingency that materially and adversely affects the London
interbank market, or (B) compliance by any Lender in good faith with
any applicable law or governmental regulation, guideline or order or
interpretation or change thereof by any Governmental Authority
charged with the interpretation or administration thereof or with
any request or directive of any such Governmental Authority (whether
or not having the force of law); or
(ii) the LIBOR Rate shall no longer represent the
effective cost to the Lenders for U.S. dollar deposits in the London
interbank market, as applicable for deposits in which they regularly
participate;
then, and in such event, the Administrative Agent shall forthwith so notify the
Borrower thereof. Until the Administrative Agent notifies the Borrowers that the
circumstances giving rise to such notice no longer apply, the obligation of the
Lenders and the Administrative Agent to allow election by the Borrowers of a
LIBOR Pricing Option shall be suspended. If at the time the Administrative Agent
so notifies the Borrowers, the Borrowers have previously given the
Administrative Agent a Pricing Notice with respect to a LIBOR Pricing Option,
but the LIBOR Pricing Option requested therein has not yet gone into effect,
such Pricing Notice shall automatically be deemed to be withdrawn and be of no
force or effect. Upon such date as shall be specified in such notice (which
shall not be earlier than the date such notice is given), the LIBOR Pricing
Option with respect to all LIBOR Rate Loans shall be terminated and the
Borrowers, jointly and severally, shall pay all interest due on such LIBOR Rate
Loans and any amounts required to be paid pursuant to Section 4.6.
Section 2.14. USE OF PROCEEDS. The proceeds of all Revolving Credit
Advances shall be used by the Borrowers (a) upon the effectiveness of the
Merger, to refinance all Indebtedness outstanding under the 1997 Credit
Agreement and (b) thereafter for general working capital purposes and other
general corporate purposes including acquisitions and new facility construction
as permitted hereunder. The proceeds of the Term Loans shall be used by
Acquisition to finance certain amounts due under the Merger Agreement. The
Borrowers will not, directly or indirectly, use any part of such proceeds for
the purpose of purchasing or carrying any margin stock within the meaning of
Regulation U of the Board of Governors of the Federal Reserve System or to
extend credit to any Person for the purpose of purchasing or carrying any such
margin stock.
Section 2.15. LETTERS OF CREDIT.
(a) Subject to the terms and conditions hereof and provided no
Default has occurred and that the Issuing Bank is then generally issuing letters
of credit for its banking customers, the Issuing Bank shall at any time prior to
the Revolving Credit Termination Date, upon the request of the Borrowers
pursuant to paragraph (b) below, issue Letters of Credit for the account of the
Borrowers, PROVIDED that the aggregate face amount of all outstanding Letters of
Credit shall not at any time exceed $2,000,000. As of the date hereof, the
Issuing Bank has issued the Existing Letters of Credit for the account of the
Borrowers, which from and after the date hereof shall be deemed to be Letters of
Credit issued hereunder, and the face amount thereof from time to time shall
count against the limit set forth above.
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(b) The Borrowers may request that the Issuing Bank issue a Letter
of Credit by written notice given by the Borrowers to the Issuing Bank not less
than five (5) Business Days prior to the proposed date of issuance of such
Letter of Credit. The notice shall (i) specify the proposed date of issuance,
the beneficiary, amount and the purpose of such Letter of Credit and (ii) be
accompanied by a completed letter of credit application furnished by the Issuing
Bank.
(c) The Borrowers hereby agree, jointly and severally, to pay to the
Issuing Bank on the date on which the Issuing Bank shall be required to pay any
draft presented under any Letter of Credit, a sum (the "Reimbursement
Obligation") equal to: (i) the amount so paid under such Letter of Credit, plus
(ii) interest on any amount remaining unpaid by the Borrowers to the Issuing
Bank under clause (i) from and including the date on which such amount becomes
payable pursuant to clause (i) until payment in full, payable on demand, at a
per annum rate of interest equal to the rate applicable to the Revolving Credit
Advances which are Base Rate Loans. If the Borrowers shall fail to pay to the
Issuing Bank the Reimbursement Obligation on the date on which the Issuing Bank
shall be required to pay any draft presented under any Letter of Credit, the
Administrative Agent shall, to the extent the Borrowers have availability to
request a Revolving Credit Advance, consider such failure to be a request for a
Revolving Credit Advance in the amount of the unpaid Reimbursement Obligation
(which request shall be deemed a confirmation that the conditions set forth in
Section 3.2 have been satisfied), and the Administrative Agent shall apply the
proceeds of such Revolving Credit Advance to reimburse the Issuing Bank for the
Reimbursement Obligation.
(d) The Borrowers shall, jointly and severally, quarterly in arrears
on the last day of each calendar quarter for the immediately preceding calendar
quarter or portion thereof, pay (i) a fee (in each case, a "Letter of Credit
Fee") to the Issuing Bank for the account of the Lenders in respect of each
Letter of Credit issued at the request of the Borrowers a rate per annum equal
to the LIBOR Rate Margin applicable to Revolving Credit Advances in effect at
such time, multiplied by the average daily undrawn face amount of each Letter of
Credit and (ii) a fronting fee to the Issuing Bank for its account equal at a
rate per annum of 1/4% multiplied by the average daily undrawn face amount of
each Letter of Credit. The Issuing Bank shall, in turn, remit to each Lender its
pro rata portion of such Letter of Credit Fee. In addition, the Borrowers shall,
jointly and severally, pay to the Issuing Bank, for its own account, on the date
of issuance, or any extension or renewal of any Letter of Credit and at such
other time or times as such charges are customarily made by the Issuing Bank,
the Issuing Bank's standard issuance, processing, negotiation, amendment and
administrative fees, determined in accordance with customary fees and charges
for similar facilities.
(e) Each payment by the Borrowers hereunder shall be made to the
Issuing Bank at its head office in Boston, Massachusetts in immediately
available funds. Interest on any and all amounts remaining unpaid by the
Borrowers under this Section 2.15 at any time from the date such amounts become
due and payable (whether as stated in this Section 2.15, by acceleration or
otherwise) until payment in full (whether before or after judgment) shall be
payable to the Issuing Bank on demand at the rate for the overdue principal on
Revolving Credit Advances which are Base Rate Loans.
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(f) The obligations of the Borrowers with respect to the Letters of
Credit shall be joint and several, unconditional and irrevocable, and shall be
paid strictly in accordance with the terms of this Agreement under all
circumstances, including, without limitation, the following circumstances:
(i) any lack of validity or enforceability of the Letters of
Credit;
(ii) any amendment or waiver of or any consent to or actual
departure from this Agreement;
(iii) the existence of any claim, set-off, defense or other
right which the Borrowers may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons or entities for which
any such beneficiary or any such transferee may be acting), the Issuing
Bank or any other Person or entity, whether in connection with this
Agreement, the transactions contemplated herein or in any other agreements
or any unrelated transaction;
(iv) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or insufficient
in any respect or any statement therein being untrue or inaccurate in any
respect;
(v) payment by the Issuing Bank under a Letter of Credit
against presentation by the beneficiary thereof of a draft or certificate
which does not comply with the terms of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether
or not similar to any of the foregoing.
(g) The Uniform Customs and Practice shall be binding on the
Borrowers, the Lenders and the Issuing Bank. The Borrowers assume all risks of
the acts or omissions of the beneficiary of each Letter of Credit with respect
to such Letter of Credit. In furtherance of, and not in limitation of the
Issuing Bank's rights and powers under the Uniform Customs and Practice, but
subject to all other provisions of this paragraph (g), it is understood and
agreed that the Issuing Bank shall not have any liability for, and that the
Borrowers assume all responsibility for: (i) the genuineness of any signature;
(ii) the form, correctness, validity, sufficiency, genuineness, falsification
and legal effect of any draft, certification or other document required by a
Letter of Credit or the authority of the Person signing the same; (iii) the
failure of any instrument to bear any reference or adequate reference to a
Letter of Credit or the failure of any Persons to note the amount of any
instrument on the reverse of a Letter of Credit or to surrender a Letter of
Credit or otherwise to comply with the terms and condition of a Letter of
Credit; (iv) the good faith or acts of any Person other than the Issuing Bank
and its agents and employees; (v) the existence, form or sufficiency or breach
or default under any agreement or instrument of any nature whatsoever; (vi) any
delay in giving or failure to give any notice, demand or protest; and (vii) any
error, omission, delay in or nondelivery of any notice or other communication,
however sent. The determination as to whether the required documents are
presented prior to the expiration of a Letter of Credit and whether such other
documents are in proper and sufficient form for compliance with a Letter of
Credit shall be made by the Issuing
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Bank in its sole discretion, which determination shall be conclusive and binding
upon the Borrowers absent manifest error. It is agreed that the Issuing Bank may
honor, as complying with the terms of a Letter of Credit and this Agreement, any
documents otherwise in order and signed or issued by the beneficiary thereof.
Any action, inaction or omission on the part of the Issuing Bank under or in
connection with the Letters of Credit or any related instruments or documents,
if in good faith and in conformity with such laws, regulations or commercial or
banking customs as the Issuing Bank may reasonably deem to be applicable, shall
be binding upon the Borrowers, shall not place the Issuing Bank under any
liability to the Borrowers, and shall not affect, impair or prevent the vesting
of any of the Issuing Bank's rights or powers hereunder or the Borrowers'
obligation to make full reimbursement of amounts drawn under the Letters of
Credit.
(h) If the Borrowers, either in writing or orally, request or
consent to any modification or extension of a Letter of Credit or waive failure
of any draft, certificate or other documents to comply with the terms of a
Letter of Credit, the Issuing Bank shall be entitled to rely and shall be deemed
to have relied on such request, consent or waiver with respect to any action
taken or omitted by the Issuing Bank pursuant to any such request, consent or
waiver, and such extension, modification or waiver shall be binding upon the
Borrowers, jointly and severally.
(i) Each Lender severally agrees that it shall be absolutely liable,
without regard to the occurrence of any Default or Event of Default or any other
condition precedent whatsoever, to the extent of such Lender's Commitment
Percentage, to reimburse the Issuing Bank on demand for the amount of each draft
paid by the Issuing Bank under each Letter of Credit to the extent that such
amount is not reimbursed by the Borrowers pursuant to paragraph (c) above (such
agreement for a Lender being called herein the "Letter of Credit Participation"
of such Lender).
(j) If any draft shall be presented or other demand for payment
shall be made under any Letter of Credit, the Issuing Bank shall notify the
Borrowers of the date and amount of the draft presented or demand for payment
and of the date and time when it expects to pay such draft or honor such demand
for payment. If the Borrowers fail to reimburse the Issuing Bank as provided in
paragraph (c) above on or before the date that such draft is paid or other
payment is made by the Issuing Bank, the Issuing Bank may at any time thereafter
notify the Lenders of the amount of any such unpaid Reimbursement Obligation. No
later than 3:00 p.m. (Boston time) on the Business Day next following the
receipt of such notice, each Lender shall make available to the Issuing Bank, at
its head office located in Boston, Massachusetts, in immediately available
funds, such Lender's Commitment Percentage of such unpaid Reimbursement
Obligation, together with an amount equal to the product of (i) the average,
computed for the period referred to in clause (iii) below, of the weighted
average interest rate paid by the Issuing Bank for federal funds acquired by the
Issuing Bank during each day included in such period, TIMES (ii) the amount
equal to such Lender's Commitment Percentage of such unpaid Reimbursement
Obligation, TIMES (iii) a fraction, the numerator of which is the number of days
that elapse from and including the date the Issuing Bank paid the draft
presented for honor or otherwise made payment to the date on which such Lender's
Commitment Percentage of such unpaid Reimbursement Obligation shall become
immediately available to the Issuing Bank, and the denominator of which is 360.
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(k) Neither the Issuing Bank nor any Lender nor any of their
officers, directors or employees shall be liable or responsible for: (i) the use
which may be made of any Letter of Credit or any acts or omissions of any
beneficiary or transferee in connection therewith; (ii) the validity,
sufficiency or genuineness of documents, or of any endorsement thereon, even if
such documents should prove to be in any or all respects invalid, insufficient,
fraudulent or forged; (iii) payment by the Issuing Bank against presentation of
documents which do not comply with the terms of a Letter of Credit, including
failure of any documents to bear any reference or adequate reference to a Letter
of Credit; or (iv) any other circumstances whatsoever in making or failure to
make payment under a Letter of Credit; PROVIDED that, notwithstanding anything
in this Section 2.15 to the contrary, the Borrowers shall have a claim against
the Lenders, and the Lenders shall be liable to the Borrowers, to the extent,
but only to the extent, of any direct, as opposed to consequential, damages
suffered by the Borrowers which were caused by the Issuing Bank's failure to
conform to the standards of the Uniform Customs and Practice. In furtherance and
not in limitation of the foregoing, the Issuing Bank may accept documents that
appear on their face to be in order, without responsibility for further
investigation, regardless of any notice or information to the contrary.
Section 2.16. GUARANTEES.
(a) For value received and hereby acknowledged and as an inducement
to the Lenders to make the Loans available to the Borrowers, effective from and
after the Merger each of the Guarantors (including the Borrowers) hereby
unconditionally guarantees to the Administrative Agent and the Lenders (i) the
full and punctual payment when due, whether at stated maturity, by acceleration
or otherwise, of all Lenders Obligations of the Borrowers, and (ii) the
performance and observance by the Borrowers of all of their obligations under
this Agreement and each other Lender Agreement and all agreements, warranties
and covenants applicable to the Borrowers in this Agreement and all other
applicable Lender Agreements (collectively, the "Guaranteed Obligations").
(b) Each of the Guarantors hereby guarantees that the Guaranteed
Obligations will be paid strictly in accordance with the terms of any
instruments evidencing such Guaranteed Obligations, regardless of any law,
regulation or order now or hereafter in effect in any jurisdiction affecting any
of such terms or the rights of the Administrative Agent or any Lenders with
respect thereto. The liability of each of the Guarantors under this Guaranty
with regard to the Guaranteed Obligations shall, to the extent permitted by law,
be absolute and unconditional irrespective of:
(i) any lack of validity or enforceability of this Agreement
or any other Lender Agreement with respect to any other Loan Party;
(ii) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Guaranteed Obligations or any
other amendment or waiver of or any consent to departure from any of the
terms of any Lender Agreement;
(iii) any exchange, release or non-perfection of a lien on any
collateral for the Guaranteed Obligations, or any release or amendment or
waiver of or consent to departure from any other guaranty for all or any
part of the Guaranteed Obligations;
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(iv) any change in ownership of any of the Loan Parties;
(v) any acceptance of any partial payment(s) from any
Borrower; or
(vi) any other circumstance which might otherwise constitute a
defense available to, or a discharge of, any of the Loan Parties in
respect of the Guaranteed Obligations.
The Guarantees set forth in this Section 2.16 shall continue to be effective or
be reinstated, as the case may be, if at any time any payment of any of the
Guaranteed Obligations is rescinded or must otherwise be returned by the
Administrative Agent or any Lenders upon the insolvency, bankruptcy or
reorganization of any of the Loan Parties, or otherwise, all as though such
payment had not been made.
(c) The Guarantees set forth in this Section 2.16 shall be effective
and shall be deemed to be made as of the date of this Agreement. No invalidity,
irregularity or unenforceability by reason of any bankruptcy or similar law, or
any law or order of any government or agency thereof purporting to reduce, amend
or otherwise affect any liability of any of the Loan Parties, and no defect in
or insufficiency or want of powers of any of the Loan Parties or irregular or
improperly recorded exercise thereof, shall impair, affect, be a defense to or
claim against these Guarantees. These Guarantees are continuing Guarantees and
shall (i) survive any termination of this Agreement, and (ii) remain in full
force and effect until payment in full of, and performance of all Guaranteed
Obligations and all other amounts payable under these Guarantees. These
Guarantees are made for the benefit of the Administrative Agent and the Lenders
and their respective successors and assigns, and may be enforced from time to
time as often as occasion therefor may arise and without requirement on the part
of the Administrative Agent or any Lenders first to exercise any rights against
the Borrowers or the Affiliate Guarantors or to exhaust any remedies available
to them against the Borrowers or the Affiliate Guarantors or to resort to any
other source or means of obtaining payment of any of the Guaranteed Obligations
or to elect any other remedy.
(d) To the extent permitted by law, each of the Guarantors hereby
waives promptness, diligence, notice of acceptance and any other notice with
respect to any of the Guaranteed Obligations and these Guarantees and any
requirement that the Administrative Agent or the Lenders protect, secure,
perfect or otherwise take action to ensure any security interest or lien on any
property subject thereto (if any) or exhaust any right or take any action
against any other Guarantors, any Affiliate Guarantor, or any other Person or
any collateral for the Guaranteed Obligations. Each of the Guarantors also
irrevocably waives, to the fullest extent permitted by law, all defenses which
at any time may be available to it in respect of the Guaranteed Obligations by
virtue of any statute of limitation, valuation, stay, moratorium law or other
similar law now or hereafter in effect.
(e) Until the payment and performance in full of all Lender
Obligations: (i) none of the Guarantors shall exercise any rights against a
Borrower or any other Guarantor arising as a result of payment by such Guarantor
under these Guarantees; (ii) none of the Guarantors will prove any claim in
competition with the Administrative Agent or the Lenders in respect of any
payment hereunder in bankruptcy or insolvency proceedings of any nature; (iii)
none of the Guarantors will claim any set-off or counterclaim against a Borrower
or any other
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Guarantor in respect of any liability of such Guarantor to a Borrower or such
other Guarantor; and (iv) each Guarantor hereby waives any benefit of and any
right to participate in collateral which may be held by the Administrative Agent
or the Lenders (if any). The payment of any amounts due with respect to any
Indebtedness of the Borrowers or any other Loan Party now or hereafter held by
any of the Guarantors (the "Affiliate Subordinated Indebtedness") is hereby
subordinated to the prior payment in full of the Lender Obligations in the
manner set forth in this paragraph. Each Borrower and each of the Guarantors
agrees that after the occurrence of any Default, neither Borrower nor any other
Loan Party shall, directly or indirectly, make any payment on account of the
Affiliate Subordinated Indebtedness, or demand, sue for, or otherwise attempt to
collect any such Affiliate Subordinated Indebtedness until the Guaranteed
Obligations shall have been paid in full. If, notwithstanding the foregoing
sentence, any Guarantor shall, after the occurrence of any Default, collect or
receive any amounts in respect of such Affiliate Subordinated Indebtedness, such
amounts shall be collected and received by such Guarantor as trustee for the
Administrative Agent and the Lenders and shall be paid over to the
Administrative Agent on account of the Guaranteed Obligations without affecting
in any manner the liability of such Guarantor under the other provisions of its
Guaranty.
(f) The Guarantees established under this Section 2.16 are unlimited
as to each Guarantor, and each Guarantor shall be jointly and severally liable
with each other and with any other guarantor of the Lender Obligations, in
respect of the Guaranteed Obligations. These Guarantees shall be separate and in
addition to any and all other Guarantees of the Guaranteed Obligations,
including, without limitation, the Affiliate Guaranty Agreements.
(g) To the extent that any applicable law (including but not limited
to applicable laws pertaining to fraudulent conveyance or fraudulent transfer)
would render the full amount of any Loan Party's obligations under this Section
2.16 invalid or unenforceable, such Loan Party's obligations hereunder shall be
limited to the maximum amount which does not result in such invalidity or
unenforceability.
ARTICLE 3. CONDITIONS TO LOANS AND ADVANCES
Section 3.1. CONDITIONS TO TERM LOANS AND FIRST REVOLVING CREDIT ADVANCE.
The Lenders' obligations to make the Term Loans and first Revolving Credit
Advance shall be subject to compliance by the Loan Parties with their agreements
contained in this Agreement, and to the condition precedent that the Lenders
shall have received each of the following, in form and substance satisfactory to
the Administrative Agent and its counsel or in the form attached hereto as an
Exhibit, as the case may be:
(a) the Notes duly executed by the Borrowers in favor of each
Lender;
(b) the Affiliate Guaranty Agreements duly executed by each of the
Affiliate Guarantors;
(c) the Security Agreements and the Intellectual Property Security
Agreement duly executed by certain of the Loan Parties and each of the Affiliate
Guarantors;
(d) the Pledge Agreements duly executed by certain of the Loan
Parties and each of the Affiliate Guarantors;
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(e) the Leasehold Mortgages for each of the properties set forth on
SCHEDULE 5.21(B) along with opinions of local counsel in form and substance
satisfactory to the Administrative Agent, and Title Policies for each property;
(f) the Collateral Pledge and Assignment of License duly executed by
certain of the Loan Parties and each of the Affiliate Guarantors along with
opinions of local counsel in form and substance satisfactory to the
Administrative Agent;
(g) landlord consent and estoppel certificates for all leases
entered into by the Borrowers and their Subsidiaries, including certificates of
no default;
(h) evidence that all actions necessary or appropriate to perfect
the Administrative Agent's liens and security interests in the assets of URHC
and its Subsidiaries shall have been fully performed including without
limitation:
(i) The due and proper recording and filing of all of the
Leasehold Mortgages sufficient to create valid first liens in favor of the
Administrative Agent, and Collateral Pledge and Assignment of Licenses;
(ii) The filing of UCC financing statements necessary to
perfect the first priority security interests of the Administrative Agent
in all of the assets of URHC and its Subsidiaries (except as otherwise
permitted herein); and
(iii) All necessary government actions, consents and
approvals;
(i) copies of the resolutions of the Board of Directors of each of
the Loan Parties and each of the Affiliate Guarantors authorizing the execution,
delivery and performance of this Agreement, the Notes, the Affiliate Guaranty
Agreement, the Security Documents and the other Lender Agreements to which each
of them is a party, certified by the Secretary or an Assistant Secretary (or
Clerk or Assistant Clerk) of each such corporation (which certificate shall
state that such resolutions are in full force and effect);
(j) (i) a certificate of the Secretary or an Assistant Secretary (or
Clerk or Assistant Clerk) of each of the Loan Parties and each of the Affiliate
Guarantors certifying the name and signatures of the officers of each such
corporation authorized to sign this Agreement, the Notes, the Affiliate Guaranty
Agreement, the Security Documents and the other Lender Agreements to which each
such corporation is a party and the other documents to be delivered by the Loan
Parties hereunder and (ii) a certificate of the chief financial officer of the
Borrowers certifying (1) as to the solvency of each Borrower after giving effect
to the Merger, (2) that the Consolidated Leverage Ratio does not exceed 2.37 to
1.0 as of the Closing Date on a pro forma basis and (3) that the Consolidated
EBITDA for the four quarter period ending June 30, 2001 is not less than
$30,000,000;
(k) certificates of legal existence and corporate and tax good
standing for each of the Loan Parties and each of the Affiliate Guarantors
issued by the appropriate Delaware, Massachusetts and other governmental
authorities;
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(l) the opinion of Brown, Rudnick, Freed & Gesmer, counsel to the
Loan Parties and the Affiliate Guarantors, dated the date of execution of this
Agreement, in substantially the form of EXHIBIT E hereto;
(m) a certificate of duly authorized officers of each of the Loan
Parties, dated the date of execution of this Agreement, to the effect that (i)
the representations and warranties of the Loan Parties herein and in all other
Lender Agreements are true and correct as of the date hereof, (ii) all
conditions precedent on the part of each of the Loan Parties to the execution
and delivery hereof and of all other Lender Agreements have been satisfied, and
(iii) upon execution and delivery of this Agreement and all other Lender
Agreements no Default will exist hereunder or thereunder;
(n) evidence that all conditions precedent to the closing of the
Merger (other than financing) have been met by the parties thereto;
(o) a balance sheet of URHC as of the Closing Date showing the
effect of the Merger and the sources and uses of funds;
(p) payment of the accrued interest and commitment fees under the
1997 Credit Agreement to the Closing Date;
(q) payment of the fees provided for in the Fee Letters;
(r) evidence that all necessary consents, approvals and
authorizations of any Person have been obtained; and
(s) such other documents, certificates and opinions as the
Administrative Agent or any Lender may reasonably request.
Section 3.2. CONDITIONS TO ALL LOANS. The Lenders' obligation to make any
Revolving Credit Advance pursuant to this Agreement, or to continue any Loan as,
or convert any Loan to, a LIBOR Rate Loan, shall be subject to compliance by
each of the Loan Parties with its respective agreements contained in this
Agreement and each other Lender Agreement, and to the satisfaction, at or before
the making, continuation or conversion of such Revolving Credit Advance or Loan,
of all of the following conditions precedent:
(a) The representations and warranties herein and those made by or
on behalf of the Loan Parties and the Affiliate Guarantors in any other Lender
Agreement shall be correct in all material respects as of the date on which any
Revolving Credit Advance is made or any such Loan is continued or converted,
with the same effect as if made at and as of such time (except as to
transactions permitted hereunder and except that the references in Article 5 to
the 2000 Financial Statements shall be deemed to refer to the most recent annual
financial statements furnished to the Lenders pursuant to Section 6.2 hereof);
(b) On the date of making, continuing or converting any Revolving
Credit Advance or Loan as described above, there shall exist no Default; and
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(c) The making, continuation or conversion of the requested
Revolving Credit Advance as described above, shall not be prohibited by any law
or governmental order or regulation applicable to the Lenders, the
Administrative Agent or the Loan Parties and all necessary consents, approvals
and authorizations of any Person (other than the Lenders) for any such Revolving
Credit Advance shall have been obtained.
The request by the Borrowers for the making, continuation or
conversion of each Revolving Credit Advance or Loan as provided above, and the
acceptance by the Borrowers of each such Revolving Credit Advance and of each
such continuation or conversion of such Loan, shall be deemed a representation
and warranty by the Borrowers that the conditions specified above in this
Section 3.2 have been satisfied.
ARTICLE 4. PAYMENT AND REPAYMENT
Section 4.1. MANDATORY PREPAYMENT.
(a) If at any time the aggregate outstanding principal balance of
all Revolving Credit Advances exceeds the Maximum Revolving Credit Amount less
the Letter of Credit Exposure, the Borrowers, jointly and severally, shall
immediately repay to the Administrative Agent for the ratable accounts of the
Lenders an amount equal to such excess.
(b) The Borrowers shall make all required principal payments on the
Term Loans on the dates when due.
(c) The Borrowers, jointly and severally, shall also make
prepayments as follows:
(i) On each Excess Cash Payment Date for each Excess Cash
Payment Period, the Borrowers shall prepay the Loans in an amount equal to
75% of the Excess Cash Flow Amount to be applied in accordance with
clauses (iii) and (iv) below; PROVIDED, HOWEVER, that such prepayment
shall be reduced to 50% of the Excess Cash Flow Amount if the Consolidated
Leverage Ratio for such period is equal to or less than 1.75-to-1;
(ii) At any time, if URHC and its Subsidiaries receive
proceeds from (A) the disposition of assets after the Closing Date,
excluding proceeds from the disposition of assets in the ordinary course
of business, (B) the issuance of equity interests, excluding the first
$10,000,000 of proceeds from the issuance of equity interests after the
Closing Date, (C) the incurrence of Indebtedness other than the Loans and
Indebtedness permitted under Section 9.1, (D) tax refunds or insurance
claims, excluding proceeds from tax refunds and insurance claims which the
Borrowers reinvest within 270 days of receipt into other operating assets,
the Borrowers shall prepay the Loans in an amount equal to 100% of the Net
Cash Proceeds therefrom to be applied in accordance with clause (iii)
below;
(iii) All mandatory prepayments pursuant to this Section
4.1(c) shall (A) be applied PRO RATA to reduce the outstanding principal
amounts of the Term Loans
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PROVIDED, HOWEVER, that such mandatory prepayments made pursuant to
Section 4.1(c)(ii) shall be applied to the required principal repayments
of the Term Loans in inverse order of maturity, (B) after the Term Loans
have been repaid in full, be applied to mandatory reductions of the
Maximum Revolving Credit Amount, and (C) except as otherwise provided in
clause (i) above, be made ten (10) days following the notice to the
Administrative Agent described in clause (iv) below;
(iv) The Borrowers shall, on the Excess Cash Payment Date and
within three (3) Business Days of the occurrence of any event described in
clause (ii) of this Section 4.1(c), provide the Administrative Agent with
written notice of the Excess Cash Flow Amount for the relevant Excess Cash
Payment Period and the proceeds received or to be received in connection
with the occurrence of any event described in clause (ii) of this Section
4.1(c), respectively.
Section 4.2. VOLUNTARY PREPAYMENTS.
(a) The Borrowers may make prepayments to the Administrative Agent
for the ratable accounts of the Lenders of any outstanding principal amount of
the Revolving Credit Advances equal to $100,000 or an integral multiple thereof
which are Base Rate Loans in accordance with Section 4.3 at any time prior to
12:00 noon (Boston time) on any Business Day without premium or penalty.
(b) The Borrowers may make prepayments to the Administrative Agent
for the ratable accounts of the Lenders of any portion of the Term Loans equal
to $100,000 or an integral multiple thereof which are Base Rate Loans in
accordance with Section 4.3 at any time prior to 12:00 noon (Boston time) on any
Business Day without premium or penalty.
(c) The Borrower may make prepayments to the Administrative Agent
for the ratable accounts of the Lenders of any Revolving Credit Advances or of
any portion of the Term Loans which are LIBOR Rate Loans only on the last day of
the Interest Period for such LIBOR Rate Loan subject, however, to the premiums
and penalties set forth in Section 4.6.
(d) All prepayments on the Term Loans pursuant to this Section 4.2
shall be applied to the principal balance of the Term Loans ratably to the
remaining scheduled principal payments on the Term Loans.
Section 4.3. PAYMENT AND INTEREST CUTOFF. Notice of each prepayment
pursuant to Section 4.2 shall be given to the Administrative Agent in the case
of prepayment of Base Rate Loans, not later than 12:00 noon (Boston time) on the
date of payment, and shall specify the total principal amount of the Revolving
Credit Advances and the Term Loans to be paid on such date. Notice of prepayment
having been given in compliance with this Section 4.3, the amount specified to
be prepaid shall become due and payable on the date specified for prepayment and
from and after said date (unless the Borrowers shall default in the payment
thereof) interest thereon shall cease to accrue. Unpaid interest on the
principal amount of any Revolving Credit Advances and the Term Loans so prepaid
accrued to the date of prepayment shall be due on the date of prepayment.
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Section 4.4. PAYMENT OR OTHER ACTIONS ON NON-BUSINESS DAYS. If any payment
to be made hereunder or under any other Lender Agreement becomes due on a day
which is not a Business Day, the due date of such payment shall be extended to
the next succeeding Business Day, and such extension of time shall in such case
be included in the computation of payment of interest or fees, as the case may
be, in connection with such payment. In the case of any other action the last
day for performance of which shall be a day other than a Business Day, the date
for performance shall be extended to the next succeeding Business Day.
Section 4.5. METHOD, TIMING AND APPLICATION OF PAYMENTS.
(a) All payments required to be made pursuant to the provisions of
this Agreement and any other Lender Agreement, and all prepayments pursuant to
Section 4.1, may be charged by the Administrative Agent against any of the
Borrowers' accounts with the Administrative Agent. The Borrowers, jointly and
severally, hereby authorize the Administrative Agent and the Lenders, without
notice to the Borrowers, to charge against any account of the Borrowers with the
Administrative Agent or such Lender an amount equal to the accrued interest,
principal and other amounts from time to time due and payable to the
Administrative Agent and the Lenders hereunder and under all other Lender
Agreements.
(b) All payments shall be made by the Borrowers not later than 12:00
noon (Boston time) on the day when due in lawful currency of the United States
of America to the Administrative Agent at its address set forth in Section 14.1
in immediately available funds, without counterclaim or setoff and free and
clear of, and without any deduction or withholding for, any taxes or other
payments. The Administrative Agent will, after its receipt thereof, distribute
like funds relating to the payment of principal, interest or any other amounts
payable hereunder ratably to the Lenders in accordance with their respective
Commitment Percentages. Any payment made by the Borrowers to the Administrative
Agent under this Agreement or under the Notes in the manner provided in this
Agreement shall be deemed to be a payment to each of the respective Lenders,
unless the provisions of this Agreement expressly provide that any such payment
shall be solely for the account of the Administrative Agent or any specific
Lender.
(c) All payments shall be applied first to the payment of all fees,
expenses and other amounts due to the Administrative Agent and the Lenders
(excluding principal and interest), then to accrued interest, and the balance on
account of outstanding principal; PROVIDED, HOWEVER, that after an Event of
Default payments will be applied to the obligations of the Borrowers to
Administrative Agent and the Lenders as the Administrative Agent and the Lenders
determine in their sole discretion.
Section 4.6. PAYMENTS NOT AT END OF INTEREST PERIOD. The Borrowers,
jointly and severally, shall pay to Administrative Agent, for the account of the
Lenders, upon request of the Administrative Agent, such amount or amounts as
shall be sufficient (in the reasonable opinion of the Administrative Agent) to
compensate for any loss, cost, or expense incurred as a result of: (i) any
payment of a LIBOR Rate Loan on a date other than the last day of the Interest
Period for such LIBOR Rate Loan; (ii) any failure by the Borrowers, jointly and
severally, to borrow a LIBOR Rate Loan on the date specified by the Borrowers'
written notice; and (iii) any failure by the Borrowers to pay a LIBOR Rate Loan
on the date for payment specified in the Borrowers' written notice. Without
limiting the foregoing, the Borrowers, jointly and severally, shall pay to
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the Administrative Agent, for the account of the Lenders, a "yield maintenance
fee" in an amount computed as follows: The current rate for United States
Treasury securities (bills on a discounted basis shall be converted to a bond
equivalent) with a maturity date closest to the term of such LIBOR Rate Loan as
to which the prepayment is made, shall be subtracted from the LIBOR Rate in
effect at the time of prepayment. If the result is zero or a negative number,
there shall be no yield maintenance fee. If the result is a positive number,
then the resulting percentage shall be multiplied by the amount of the principal
balance being repaid. The resulting amount shall be divided by 360 and
multiplied by the number of days remaining in the term for such LIBOR Rate Loan
as to which the prepayment is made. Said amount shall be reduced to present
value calculated by using the above referenced United States Treasury securities
rate and the number of days remaining in the term for such LIBOR Rate Loan as to
which prepayment is made. The resulting amount shall be the yield maintenance
fee due to the Administrative Agent, for the account of the Lenders, upon the
prepayment of a LIBOR Rate Loan. If by reason of an Event of Default, any of the
Lender Obligations are declared to be immediately due and payable, then any
yield maintenance fee with respect to a LIBOR Rate Loan shall become due and
payable in the same manner as though the Borrowers had exercised such right of
prepayment.
Section 4.7. CURRENCY. All payments and prepayments provided for under
this Agreement shall be made in lawful currency of the United States of America
in immediately available funds.
ARTICLE 5. REPRESENTATIONS AND WARRANTIES
In order to induce the Lenders to enter into this Agreement and make the
Loans and issue Letters of Credit as contemplated hereby, the Loan Parties
hereby make the following representations and warranties:
Section 5.1. CORPORATE EXISTENCE, GOOD STANDING, ETC. URHC and each of its
Subsidiaries is a corporation, duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is organized, and has
corporate power to own its properties and conduct its business as now conducted
and as proposed to be conducted by it. Each of the Loan Parties has the
corporate power to enter into and perform this Agreement and all other Lender
Agreements to which each of them is a party, and, in the case of the Borrowers,
to execute and deliver the Notes. Each Subsidiary has the corporate power to
enter into and perform each Lender Agreement to which it is a party. Certified
copies of the charter documents and By-Laws of each of the Loan Parties and each
Affiliate Guarantor have been delivered to the Administrative Agent and are
true, accurate and complete as of the date hereof.
Section 5.2. PRINCIPAL PLACE OF BUSINESS; LOCATION OF RECORDS. The
principal place of business of the Borrowers and each other Loan Party is
located at 100 Charles Park Road, West Roxbury, MA 02132. All of the books and
records or true and complete copies thereof relating to the accounts and
contracts of the Borrowers and each Loan Party are and will be kept at such
location.
Section 5.3. QUALIFICATION. URHC and each of its Subsidiaries is duly
qualified to do business and is in good standing as a foreign corporation in
each jurisdiction where its ownership
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or leasing of properties or the conduct of its business requires it to be
qualified, except where the failure to be so qualified would not have a Material
Adverse Effect.
Section 5.4. SUBSIDIARIES. Each of URHC's Subsidiaries and their
respective jurisdiction of incorporation are listed in
SCHEDULE 5.4, and all of the issued and outstanding capital stock of each
such Subsidiary is owned by URHC, URC, UHC, URI, SLP, SLA Mail Inc., SLA Mail II
Inc., BS Acquisition Corp., Uno Restaurants of New York Inc., or Sewell
Corporation as listed in SCHEDULE 5.11.
Section 5.5. CORPORATE POWER. The execution, delivery and performance of
this Agreement, the Notes and all other Lender Agreements and other documents
delivered by the Loan Parties or any Subsidiary to the Lenders, and the
incurrence of Indebtedness to the Lenders hereunder or thereunder:
(a) are within the corporate powers of each Loan Party and each
Affiliate Guarantor, as the case may be, having been duly authorized by its
Board of Directors or other similar governing body, and, if required by law, by
its charter documents or by its By-Laws, by its stockholders;
(b) except as set forth in SCHEDULE 5.5, do not require any approval
or consent of, or filing with, any governmental agency or other Person (or such
approvals and consents have been obtained and delivered to the Administrative
Agent) and are not in contravention of any law or the terms of the charter
documents or By-Laws of any Loan Party or any Affiliate Guarantor or any
amendment thereof; and
(c) do not:
(i) assuming that all consents, approvals and filings listed
in SCHEDULE 5.5 have been obtained or made, result in a breach of or
constitute a default under any indenture or loan or credit agreement or
any other agreement, lease or instrument to which any Loan Party or any
Affiliate Guarantor is a party or by which any Loan Party or any Affiliate
Guarantor or any of their respective properties are bound or affected,
which gives any Person the right (immediately or upon the giving of
notice, the passage of time, or otherwise) to accelerate any material
amount of Indebtedness or terminate any material right of URHC or any
Subsidiary;
(ii) result in, or require, the creation or imposition of any
mortgage, deed of trust, pledge, lien, security interest or other charge
or encumbrance of any nature on any property now owned or hereafter
acquired by any Loan Party or any Affiliate Guarantor, except as provided
in the Lender Agreements; or
(iii) result in a violation of or default under any law, rule,
regulation, order, writ, judgment, injunction, decree, determination or
award, now in effect having applicability to any Loan Party or any
Affiliate Guarantor, or to any of their respective properties.
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Section 5.6. VALID AND BINDING OBLIGATIONS. This Agreement, the Notes, and
all the other Lender Agreements executed in connection herewith and therewith
constitute the valid and binding obligations of the Loan Parties and their
Subsidiaries party thereto, as the case may be, enforceable in accordance with
their respective terms, except as the enforceability thereof may be subject to
bankruptcy, insolvency, moratorium and other laws affecting the rights and
remedies of creditors and secured parties and to the exercise of judicial
discretion in accordance with general equitable principles.
Section 5.7. OTHER AGREEMENTS. Neither URHC nor any of its Subsidiaries is
a party to any indenture, loan or credit agreement, or any lease or other
agreement or instrument, or subject to any charter or corporate restriction,
which is likely to have a Material Adverse Effect or a material adverse effect
on the ability of Loan Parties or any such Subsidiary to carry out any of the
provisions of this Agreement, the Notes or any of the Lender Agreements executed
in connection herewith and therewith.
Section 5.8. PAYMENT OF TAXES. URHC and each of its Subsidiaries have
filed all tax returns which are required to be filed by them and have paid, or
made adequate provision for the payment of, all taxes which have or may become
due pursuant to said returns or to assessments received. Except as set forth in
SCHEDULE 5.8, all federal tax returns of URHC and its Subsidiaries through their
fiscal year ended in 2000 have been audited by the Internal Revenue Service, or
are not subject to such audit by virtue of the expiration of the applicable
period of limitation, and except as described in SCHEDULE 5.8, the results of
such audits are fully reflected in the balance sheet contained in the 2000
Financial Statements. URHC knows of no material additional assessments since
such date for which adequate reserves appearing in the balance sheet contained
in the 2000 Financial Statements have not been established. URHC and its
Subsidiaries have made adequate provisions for all current taxes, and in the
opinion of URHC, except as described in SCHEDULE 5.8, there will not be any
additional assessments for any fiscal periods prior to and including that which
ended on the date of said balance sheet in excess of the amounts reserved
therefor.
Section 5.9. FINANCIAL STATEMENTS AND PROJECTIONS.
(a) All balance sheets, statements and other financial information
furnished to the Lenders in connection with this Agreement and the transactions
contemplated hereby (each of which is listed on SCHEDULE 5.9), including,
without limitation, the 2000 Financial Statements, have been prepared in
accordance with GAAP consistently applied throughout the periods involved and
present fairly the consolidated financial condition of URHC and its Subsidiaries
and all such information so furnished is true, correct and complete, except with
respect to unaudited interim financial statements which will be subject to
normal recurring year-end adjustments.
(b) The projections for fiscal years 2001-2006 described on SCHEDULE
5.9, prepared by URHC and delivered to the Administrative Agent by URHC on
behalf of itself and its Subsidiaries and the most recent projections delivered
under Section 6.12 hereof are based upon estimates and assumptions which the
senior executive and financial officers of the Borrowers consider as of the date
thereof reasonable, have been prepared on the basis of the assumptions stated
therein and as of the date thereof reflect the reasonable estimates of the
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Borrowers of the results of operations and other information projected therein,
it being acknowledged that such projections are not guarantees that the
assumptions or results shown therein will occur. To the best knowledge of each
Borrower, no facts exist that (individually or in the aggregate) would result in
any material change in the projections described in Schedule 5.9 or the most
recent projections delivered to the Administrative Agent pursuant to Section
6.12 hereof.
Section 5.10. OTHER MATERIALS FURNISHED. All written information,
exhibits, memoranda or reports furnished by or on behalf of URHC or its
Subsidiaries to the Lenders in connection with the negotiation of this Agreement
is set forth in SCHEDULE 5.10. None of such information contains any material
misstatement of fact or omits to state a material fact or any fact necessary to
make the statements contained therein not misleading. There is no fact known to
URHC or its Subsidiaries that has not been disclosed to the Administrative Agent
which could reasonably be expected to have a Material Adverse Effect.
Section 5.11. STOCK. There are presently issued by URHC and its
Subsidiaries and outstanding the shares of capital stock indicated on SCHEDULE
5.11. URHC and its Subsidiaries have received the consideration for which such
stock was authorized to be issued and have otherwise complied with all legal
requirements relating to the authorization and issuance of shares of stock and
all such shares have been duly authorized, validly issued and are fully paid and
non-assessable. URHC and its Subsidiaries have no other capital stock of any
class outstanding.
Section 5.12. CHANGES IN CONDITION. Except as set forth in SCHEDULE 5.12,
since the date of the latest balance sheet listed on SCHEDULE 5.9, there has
been no Material Adverse Change in the business or assets or in the condition,
financial or otherwise, of URHC and its Subsidiaries taken as a whole, and
neither URHC nor any such Subsidiary have entered into any transaction outside
of the ordinary course of business which is material to URHC, or to URHC and its
Subsidiaries taken as a whole. Except as set forth in SCHEDULE 5.12, neither
URHC nor any of its Subsidiaries have any known contingent liabilities which are
not referred to in such balance sheet and which are material to URHC and its
Subsidiaries taken as a whole.
Section 5.13. ASSETS, LICENSES, ETC.
(a) URHC and its Subsidiaries have good and marketable title to, or
valid leasehold interests in, all of their assets, real and personal, including
the assets carried on their books and reflected in the latest balance sheet
listed on SCHEDULE 5.9, subject to no liens, charges or encumbrances, except for
(i) liens, charges and encumbrances described in SCHEDULE 5.13(A) and Permitted
Liens, none of which individually or in the aggregate materially impair or
diminish the value of the asset or its ability to be used for its intended
purpose, and (ii) assets sold, abandoned or otherwise disposed of in the
ordinary course of business.
(b) URHC and its Subsidiaries have obtained all consents, and
possess all licenses, permits, franchises, patents, copyrights, trademarks and
trade names, or rights thereto, necessary to conduct their business
substantially as now conducted and as presently proposed to be conducted.
SCHEDULE 5.13(B) sets forth all patents, copyrights, trademarks, tradenames,
material franchises and other material intellectual property rights (the
"Material Rights") of
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URHC and its subsidiaries. URHC and its Subsidiaries have no obligation to
compensate any third party for the use of the Material Rights, and to the best
knowledge of the Loan Parties, URHC and its Subsidiaries are not in violation of
any valid rights of others with respect to any of the foregoing. To the best
knowledge of URHC and its Subsidiaries, there is no infringement or claim of
infringement by others of any Material Right of any of URHC and its
Subsidiaries.
(c) As of the date of this Agreement, the location of each
restaurant operated by a Franchisee, the month and year each such restaurant
opened, the name and address of each Franchisee, and the date each became a
Franchisee, are set forth on SCHEDULE 5.13(C) hereto.
Section 5.14. LITIGATION. Except as described on SCHEDULE 5.14 hereto,
there is no litigation, at law or in equity, or any proceeding before any
federal, state, provincial or municipal board or other governmental or
administrative agency pending or, to the knowledge of URHC, threatened, which
involves a material risk of any judgment or liability not fully covered by
insurance and which, if adversely determined, would result in a Material Adverse
Effect, and no judgment, decree, or order of any federal, state, provincial or
municipal court, board or other governmental or administrative agency has been
issued against URHC or any of its Subsidiaries which has or may have a Material
Adverse Effect.
Section 5.15. PENSION PLANS. As of the date hereof, URHC and its
Subsidiaries have no Pension Plan subject to the minimum funding or termination
insurance provisions of the Pension Reform Act.
Section 5.16. OUTSTANDING INDEBTEDNESS. The outstanding amount of
Indebtedness for borrowed money, including Capitalized Lease Obligations, of
URHC and its Subsidiaries as of the date hereof, is correctly set forth in
SCHEDULE 5.16 hereto or permitted hereunder, and said Schedule correctly lists
the credit agreements, guarantees, leases and other instruments pursuant to
which such Indebtedness has been incurred and all liens, charges, encumbrances
and security interests securing such Indebtedness.
Section 5.17. ENVIRONMENTAL MATTERS. Except as set forth in SCHEDULE 5.17
hereto.
(a) None of URHC, any of its Subsidiaries or to their knowledge any
operator of their respective properties, or any facilities or operations thereon
is in violation, or, to the Loan Parties' knowledge, is in alleged violation, of
any Environmental Law, which violation would have a Material Adverse Effect.
(b) Neither URHC nor any of its Subsidiaries have received written
notice from any third party, including without limitation any federal, state,
county, or local Governmental Authority, (i) that it has been identified as a
potentially responsible party under the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended ("CERCLA") or any equivalent
state law, with respect to any site or location; (ii) that any hazardous waste,
pollutant, contaminant, toxic substance, oil, petroleum, petroleum product,
hazardous substance, or hazardous materials or other chemicals or substances
regulated by any Environmental Laws ("Hazardous Substances") which it has
generated, transported or disposed of, has been found at any site at which a
federal, state, county, or local agency or other third party has conducted or
has ordered URHC, any Subsidiary or, to its knowledge, another third
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party or parties (E.G., a committee of potentially responsible parties) to
conduct, or at which, to its knowledge, a federal, state, county or local agency
or other third party has conducted, a remedial investigation, removal or other
response action pursuant to any Environmental Law; or (iii) that it is or shall
be a named party to any claim, action, cause of action, complaint (contingent or
otherwise) or legal or administrative proceeding arising out of any actual or
alleged release or threatened release of Hazardous Substances. For purposes of
this Agreement, "release" means any past or present releasing, spilling,
leaking, pumping, pouring, emitting, emptying, discharging, injecting, escaping,
disposing or dumping of Hazardous Substances into the environment.
(c) To the knowledge of URHC and its Subsidiaries, (i) no portion of
property owned, operated or controlled by the Loan Parties or any Subsidiary has
been used for the handling, manufacturing, processing, generation, storage
treatment or disposal of Hazardous Substances, except in compliance with
applicable Environmental Laws; (ii) there have been no releases or threatened
releases of Hazardous Substances on, upon, into or from any property owned,
operated or controlled by URHC or any of its Subsidiaries, which releases could
have a Material Adverse Effect; (iii) there have been no releases of Hazardous
Substances on, upon, from or into any real property in the vicinity of the real
properties owned, operated or controlled by URHC or any of its Subsidiaries
which, through soil or groundwater contamination, may have come to be located on
the properties of URHC or any Subsidiary, which releases could have a Material
Adverse Effect; and (iv) there were no releases of Hazardous Substances on,
upon, from or into any real property formerly but no longer owned, operated or
controlled by URHC or its Subsidiaries at the time of such ownership, operation
or control, which releases could have a Material Adverse Effect.
(d) To the knowledge of URHC and its Subsidiaries, no lien has been
imposed on any property owned, operated or controlled by URHC or any Subsidiary,
by any Governmental Authority in connection with the presence on or off such
property of any Hazardous Substance.
(e) None of the properties of URHC or any of its Subsidiaries are or
shall be subject to any applicable environmental cleanup responsibility law or
environmental restrictive transfer law or regulation by virtue of the
transactions set forth herein and contemplated hereby.
Section 5.18. FOREIGN TRADE REGULATIONS. None of URHC or any of its
Subsidiaries are (a) a person included within the definition of "designated
foreign country" or "national" of a "designated foreign country" in Executive
Order No. 8389, as amended, in Executive Order No. 9193, as amended, in the
Foreign Assets Control Regulations (31 C.F.R., Chapter V, Part 500, as amended),
in the Cuban Assets Control Regulations of the United States Treasury Department
(31 C.F.R., Chapter V, Part 515, as amended) or in the Regulations of the Office
of Alien Property, Department of Justice (8 C.F.R., Chapter II, Part 507, as
amended) or within the meanings of any of the said orders or regulations, or of
any regulations, interpretations, or rulings issued thereunder, or in violation
of said Orders or regulations or of any regulations, interpretations or rulings
issued thereunder; or (b) an entity listed in Section 520.101 of the Foreign
Funds Control Regulations (31 C.F.R., Chapter V, Part 520, as amended).
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Section 5.19. GOVERNMENTAL REGULATIONS. None of URHC, any of its
Subsidiaries or any corporation controlling URHC or under common control with
URHC are subject to regulation under the Public Utility Holding Company Act of
1935, the Federal Power Act, the Investment Company Act of 1940, or is a common
carrier under the Interstate Commerce Act, or is subject to any statute or
regulation which regulates the incurring by any URHC of indebtedness for
borrowed money, including statutes or regulations relating to common or contract
carriers or to the sale of electricity, gas, steam, water, telephone or
telegraph or other public utility services.
Section 5.20. MARGIN STOCK. Neither URHC nor any of its Subsidiaries owns
any "margin stock" within the meaning of Regulation U of the Board of Governors
of the Federal Reserve System, or any regulations, interpretations or rulings
thereunder, nor is URHC or any such Subsidiary engaged principally or as one of
its important activities in extending credit which is used for the purpose of
purchasing or carrying margin stock. None of the proceeds of the Loan will be
used, directly or indirectly, to purchase or carry any such "margin stock".
Section 5.21. REAL PROPERTY. SCHEDULE 5.21(A) sets forth a description of
all real properties owned by URHC and its Subsidiaries on the Closing Date and
SCHEDULE 5.21(B) sets forth a description of all real properties leased by URHC
and its Subsidiaries on the Closing Date and identifies those properties for
which Leasehold Mortgages will be required at the Closing. Except as set forth
in SCHEDULE 5.21(C), each such lease is in full force and effect, no defaults by
URHC or any Subsidiary party thereof, or to the knowledge of URHC and its
Subsidiaries, any other party thereto, exist thereunder (or with respect to the
giving of this representation after the date of this Agreement, as otherwise
disclosed to the Administrative Agent in writing in a Compliance Certificate
after the date of this Agreement and prior to the date such representation is
deemed given), and true and correct copies of each such lease have previously
been provided to the Administrative Agent.
Section 5.22. COMPLIANCE WITH OTHER INSTRUMENTS, LAWS, ETC.. Neither URHC
nor any of its Subsidiaries is in violation of any provision of its charter
documents, By-Laws, or any agreement or instrument to which it is or may be
subject or by which it or any of its properties is or may be bound or any
decree, order, judgment, statute, license, rule or regulation, in any of the
foregoing cases in a manner that could result in a Material Adverse Effect.
Section 5.23. NO DEFAULTS UNDER FFCA AND SPENCER. The FFCA Sale-Leaseback
Documents, the Spencer I Sale-Leaseback Documents and the Spencer II
Sale-Leaseback Documents are in full force and effect and no defaults by URHC or
any of its Subsidiaries party thereto, or to the knowledge of URHC or any of its
Subsidiaries, by any other party thereto, exist thereunder (or with respect to
the giving of this representation after the date of this Agreement, as otherwise
disclosed to the Administrative Agent in writing in a Compliance Certificate
after the date of this Agreement and prior to the date such representation is
deemed given).
Section 5.24. CONSUMMATION OF MERGER. Upon the funding of the Term Loans,
the Merger will be consummated pursuant to the terms of the Merger Agreement.
True, complete and correct copies of the Merger Agreement and related documents
have been delivered to and are acceptable to the Agents and none of them have
been modified, amended or supplemented, except to the extent true, correct and
complete copies of any such modifications, amendments, waivers or supplements
have been delivered to and are acceptable to the Agents prior to the
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Closing Date. The Borrowers hereby certify to the Lenders that except as set
forth in SCHEDULE 5.24 all conditions precedent (other than financing) to the
obligations of Acquisition, URHC, and URC set forth in the Merger Agreement,
have been satisfied in full, without modification, amendment or waiver. URHC
hereby confirms and restates as if set forth herein in full the representations
and warranties of URC set forth in Article II of the Merger Agreement and the
representations and warranties of Acquisition and URHC set forth in Article III
of the Merger Agreement.
ARTICLE 6. REPORTS
Section 6.1. INTERIM FINANCIAL STATEMENTS AND REPORTS.
(a) (i) as soon as available, and in any event within forty-five
(45) days after the end of each of the first three (3) fiscal quarters and
within thirty (30) days after the end of each month of each fiscal year of URHC,
URHC shall furnish the Administrative Agent and the Lenders with consolidated
and consolidating balance sheets of URHC and its Subsidiaries as of the end of
such quarter or month, as the case may be, and consolidated and consolidating
statements of income and cash flow of URHC and its Subsidiaries for such quarter
or month, as the case may be, and for the period commencing at the end of the
previous fiscal year and ending with the end of such quarter or month, setting
forth in each case in comparative form the corresponding figures for the
corresponding period of the preceding fiscal year, all in reasonable detail and
prepared in accordance with GAAP consistently applied (subject to the absence of
footnotes and ordinary year end adjustments), and (ii) as soon as available, and
in any event within forty-five (45) days after the end of each of the first
three (3) fiscal quarters of URHC, URHC shall furnish the Administrative Agent
and the Lenders with a Compliance Certificate.
(b) As soon as available, and in any event within ninety (90) days
after the end of each fiscal year, within forty-five (45) days after the end of
each fiscal quarter and within thirty (30) days after the end of each month of
URHC, URHC shall furnish the Administrative Agent and the Lenders with
statements of operations and cash flow for such quarter and month for each
pizzeria restaurant location operated by URHC and its Subsidiaries, such
statements to be prepared in reasonable detail, in accordance with GAAP
consistently applied (subject to the absence of footnotes and ordinary year-end
adjustments) and on a restaurant by restaurant basis.
Section 6.2. ANNUAL FINANCIAL STATEMENTS. As soon as available, but in any
event within ninety (90) days after the end of each fiscal year of URHC, URHC
shall furnish to the Administrative Agent and the Lenders (a) a consolidated
balance sheet of URHC and its Subsidiaries as of the end of such fiscal year and
consolidated statements of income, shareholders' equity and cash flow of URHC
and its Subsidiaries for such fiscal year, in each case reported on by Ernst &
Young LLP or other independent certified public accountants of recognized
national standing, which report shall express, without reliance upon others, a
positive opinion regarding the fairness of the presentation of such financial
statements in accordance with GAAP consistently applied, said report to be
without qualification, except in cases of unresolved litigation and accounting
changes with which such accountants concur, a copy of any management letters
delivered by such accountants to URHC in connection with such audit, and (b) a
Compliance Certificate.
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Section 6.3. NOTICE OF DEFAULTS. As soon as possible, and in any event
within five (5) days after the occurrence of each Default, URHC shall furnish
the Administrative Agent and the Lenders with the statement of its chief
executive officer or chief financial officer setting forth details of such
Default and the action which URHC or its Subsidiaries have taken or propose to
take with respect thereto.
Section 6.4. NOTICE OF LITIGATION. Promptly after the commencement
thereof, the Loan Parties shall furnish the Administrative Agent and the Lenders
written notice of all actions, suits and proceedings before any court or
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign, to which URHC or any of its Subsidiaries is a party or
directly affecting any of their respective properties, which, if adversely
determined, could reasonably be expected to have a Material Adverse Effect.
Section 6.5. COMMUNICATIONS WITH OTHERS. If at any time any debt or equity
security of URHC or any of its Subsidiaries is traded publicly, URHC shall
furnish the Administrative Agent and the Lenders with copies of all regular,
periodic and special reports and all registration statements which URHC or any
such Subsidiary files with the Securities and Exchange Commission or any
Governmental Authority which may be substituted therefor, or with any national
or regional securities exchange.
Section 6.6. REPORTABLE EVENTS. At any time that URHC or any Subsidiary
has a Pension Plan, URHC shall furnish to the Administrative Agent and the
Lenders, as soon as possible, but in any event within thirty (30) days after any
Loan Party knows or has reason to know that any Reportable Event with respect to
any Pension Plan has occurred, the statement of its chief executive officer or
chief financial officer setting forth the details of such Reportable Event and
the action which URHC or any Subsidiary has taken or proposes to take with
respect thereto, together with a copy of the notice of such Reportable Event to
the Pension Benefit Guaranty Corporation.
Section 6.7. ANNUAL PENSION REPORTS. At any time that URHC or any
Subsidiary has a Pension Plan, the Loan Parties shall furnish to the
Administrative Agent and the Lenders, promptly after the filing thereof with the
Secretary of Labor or the Pension Benefit Guaranty Corporation, copies of each
annual report which is filed with respect to each Pension Plan for each plan
year, including:
(a) a statement of assets and liabilities of such Pension Plan as of
the end of such plan year and statements of changes in fund balance and in
financial position, or a statement of changes in net assets available for plan
benefits, for such plan year;
(b) an opinion of Ernst & Young LLP (or other independent certified
public accountants of recognized standing) relating to such Pension Plan to the
extent that any such opinion for the Pension Plan is required by law; and
(c) an actuarial statement of such Pension Plan applicable to such
plan year, together with an opinion of an enrolled actuary of recognized
standing, to the extent that any such statement and/or opinion for the Pension
Plan is required by law.
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Section 6.8. REPORTS TO OTHER CREDITORS. Promptly after filing the same,
each Loan Party shall furnish to the Administrative Agent and the Lenders copies
of any compliance certificate and other information furnished to any other
holder of the securities (including debt obligations) of URHC or any Subsidiary
pursuant to the terms of any indenture, loan or credit or similar agreement,
including without limitation pursuant to the MetLife Notes, the FFCA
Sale-Leaseback Documents, the Spencer I Sale-Leaseback Documents, and the
Spencer II Sale-Leaseback Documents and not otherwise required to be furnished
to the Administrative Agent and the Lenders pursuant to any other provision of
this Agreement.
Section 6.9. COMMUNICATIONS WITH INDEPENDENT PUBLIC ACCOUNTANTS. At any
reasonable time and from time to time, the Borrowers shall provide the
Administrative Agent and the Lenders and any agents or representatives of the
Administrative Agent and the Lenders access to the independent public
accountants of the Borrowers to discuss the financial condition of the Borrowers
and their Subsidiaries, including, without limitation any recommendations of
such independent public accountants concerning the management, finances,
financial controls or operations of the Borrowers and their Subsidiaries.
Promptly after the receipt thereof, the Borrowers shall furnish to the
Administrative Agent and each Lender copies of any written recommendations
concerning the management, finances, financial controls, or operations of the
Borrowers or any Subsidiary received from the Borrowers' independent public
accountants.
Section 6.10. ENVIRONMENTAL REPORTS. The Loan Parties shall provide the
Administrative Agent and the Lenders: (a) not later than ten (10) days after
notice thereof, notice of any enforcement actions, or administrative orders, or,
to the knowledge of the Loan Parties, threatened enforcement actions or
administrative orders affecting the Loan Parties or any Subsidiary by any
Governmental Authority related to Environmental Laws; (b) copies, promptly after
they are received, of all orders, notices of responsibility, notices of
violation, notices of enforcement actions or administrative orders, and
assessments, and other written communications pertaining to any such orders,
administrative orders, notices, claims and assessments received by the Loan
Parties or any Subsidiary from any Governmental Agency; (c) not later than seven
(7) days after written notice thereof, notice of any civil claims or, to the
knowledge of the Loan Parties, threatened civil claims affecting the Loan
Parties or any Subsidiary by any third party alleging any violation of
Environmental Laws or harm to the environment (including natural resource damage
claims); (d) copies of all cleanup plans, site assessment reports, response
plans, remedial proposals, or other submissions of the Loan Parties or any
Subsidiary, or, if received or obtained by the Loan Parties or any Subsidiary,
other third party (e.g., committee of potentially responsible parties at a
Superfund site), or any combination of same, submitted to a Governmental Agency
in response to any communication referenced in subsections (a) and (b) herein as
soon as possible and in any event within five (5) Business Days after their
submission to such Governmental Agency; and (e) from time to time, on request of
the Administrative Agent, evidence satisfactory to the Administrative Agent of
URHC's and its Subsidiaries' insurance coverage, if any, for any liabilities
under or pursuant to any Environmental Law.
Section 6.11. METLIFE NOTES. The Loan Parties shall notify the
Administrative Agent in advance of any modification, amendment or waiver of any
of the provisions of any of the MetLife Notes and, promptly upon execution
thereof, shall furnish to the Administrative Agent and the Lenders copies of any
such modifications, amendments or waivers. As soon as possible,
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and in any event within five (5) Business Days after the occurrence of an event
of default under any of the MetLife Notes, the Loan Parties shall furnish the
Administrative Agent and the Lenders with the statement of their respective
chief executive officer or chief financial officer setting forth details of such
default and the action which the Loan Parties have taken or propose to take with
respect thereto.
Section 6.12. ANNUAL PROJECTIONS. Within ninety (90) days after the end of
each fiscal year of URHC and its Subsidiaries, URHC shall furnish to the
Administrative Agent and the Lenders consolidated financial projections for URC
and its Subsidiaries for the then current fiscal year in form consistent with
the projections dated March 21, 2001 previously delivered by URHC to the
Administrative Agent.
Section 6.13. MISCELLANEOUS. The Loan Parties shall provide the
Administrative Agent and the Lenders with such other information as the
Administrative Agent or any Lender may from time to time reasonably request
respecting the business, properties, condition or operations, financial or
otherwise, of URHC and its Subsidiaries.
ARTICLE 7. FINANCIAL RESTRICTIONS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitments to make Loans
or issue Letters of Credit hereunder, the Loan Parties shall observe the
following covenants:
Section 7.1. CONSOLIDATED LEVERAGE RATIO. URHC and its Subsidiaries shall
maintain a ratio of Consolidated Funded Indebtedness as of the end of each
fiscal quarter to Consolidated EBITDA for the four-quarter period ending on such
date of no more than the ratio set forth opposite each period.
<Table>
<Caption>
- --------------------------------------------------------------------------------
Period Ratio
- --------------------------------------------------------------------------------
Closing Date through June 30, 2002 2.50:1.0
- --------------------------------------------------------------------------------
Fiscal Year End 2002 through June 30, 2003 2.25:1.0
- --------------------------------------------------------------------------------
Fiscal Year End 2003 and thereafter 1.75:1.0
- --------------------------------------------------------------------------------
</Table>
Section 7.2. CONSOLIDATED NET WORTH. URHC will at all times maintain
Consolidated Net Worth in an amount not less than the sum of (a) $38,800,000,
PLUS (b) 50% of the sum of Consolidated Net Income (0% in the case of a deficit)
for each fiscal year, commencing with the fiscal year ending September 30, 2001,
PLUS (c) 100% of the net proceeds received by URHC and any of its Subsidiaries
in connection with any offering of its capital stock.
Section 7.3. CONSOLIDATED CASH FLOW COVERAGE RATIO. URHC and its
Subsidiaries shall maintain a ratio of Consolidated Cash Flow to Consolidated
Financial Obligations for each four fiscal quarter period of not less than
1.20-to-1.00.
Section 7.4. CONSOLIDATED CAPITAL EXPENDITURES. URHC and its Subsidiaries
shall not incur Capital Expenditures for any period of four (4) consecutive
fiscal quarters, commencing
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with the period ending September 30, 2001 in excess of the following amounts for
any such period ending during the applicable period set forth below:
<Table>
<Caption>
- --------------------------------------------------------------------------------
Period Maximum Capital Expenditures
- --------------------------------------------------------------------------------
Closing Date through September 30, 2001 $21,986,000
- --------------------------------------------------------------------------------
Fiscal Year 2002 $17,069,000
- --------------------------------------------------------------------------------
Fiscal Year 2003 $15,803,000
- --------------------------------------------------------------------------------
Fiscal Year 2004 $15,261,000
- --------------------------------------------------------------------------------
Fiscal Year 2005 $17,719,000
- --------------------------------------------------------------------------------
Fiscal Year 2006 $24,555,000
- --------------------------------------------------------------------------------
</Table>
; PROVIDED, HOWEVER, that any unused amount of Capital Expenditures in any
fiscal year (calculated without regard to any carry-over amounts from prior
years) shall increase the amount of Maximum Capital Expenditures permitted in
the next fiscal year.
Section 7.5. CONSOLIDATED OPERATING LEASE EXPENSE. URHC and its
subsidiaries shall not incur Consolidated Operating Lease Expense for any period
of four consecutive fiscal quarters, commencing with the period ending June 30,
2001 in excess of the following amounts for any such period ending during the
applicable period set forth below:
<Table>
<Caption>
- --------------------------------------------------------------------------------
Period Maximum Consolidated Lease Expense
- --------------------------------------------------------------------------------
From Closing through Fiscal Year End 2001 $18,977,000
- --------------------------------------------------------------------------------
Fiscal Year 2002 $21,868,000
- --------------------------------------------------------------------------------
Fiscal Year 2003 $22,714,000
- --------------------------------------------------------------------------------
Fiscal Year 2004 $23,375,000
- --------------------------------------------------------------------------------
Fiscal Year 2005 $24,035,000
- --------------------------------------------------------------------------------
Fiscal Year 2006 and thereafter $24,695,000
- --------------------------------------------------------------------------------
</Table>
Section 7.6. CONSOLIDATED EBITDA. URHC and its Subsidiaries shall earn
Consolidated EBITDA for each period of four consecutive fiscal quarters,
commencing with the period ending June 30, 2001, of not less than the following
amounts for any such period ending during the applicable period set forth below:
<Table>
<Caption>
- --------------------------------------------------------------------------------
Period Minimum EBITDA
- --------------------------------------------------------------------------------
From Closing through September 28, 2002 $26,000,000
- --------------------------------------------------------------------------------
From September 29, 2002 through September 27, 2003 $28,700,000
- --------------------------------------------------------------------------------
From September 28, 2003 through October 2, 2004 $30,400,000
- --------------------------------------------------------------------------------
From October 3, 2004 through October 1, 2005 $32,500,000
- --------------------------------------------------------------------------------
From October 2, 2005 through September 30, 2006 $34,600,000
- --------------------------------------------------------------------------------
From October 1, 2006 thereafter $37,000,000
- --------------------------------------------------------------------------------
</Table>
Section 7.7. OPERATING CASH FLOW. For each four (4) fiscal quarter period,
commencing with the period ending June 30, 2001, total Operating Cash Flow for
all Company Restaurants having negative Operating Cash Flow shall not exceed 2%
of total Operating Cash Flow of all Company Restaurants for each such period.
For purposes of calculating total
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Operating Cash Flow there shall be excluded for all such calculations Operating
Cash Flow for any Company Restaurants(s) which have been in operation less than
twelve (12) months.
ARTICLE 8. AFFIRMATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make Loans or
issue Letters of Credit hereunder, URHC covenants that it and each of its
Subsidiaries will comply with the following covenants and provisions:
Section 8.1. EXISTENCE AND BUSINESS. URHC and each of its Subsidiaries
will (a) preserve and maintain their corporate existence and qualify and remain
qualified as a foreign corporation in each jurisdiction in which such
qualification is required, except where the failure so to qualify would not have
a Material Adverse Effect, (b) maintain and preserve in full force and effect
all material rights, licenses, permits, patents and franchises, reasonably
necessary or advisable to the conduct of its business, (c) comply with all valid
and applicable statutes, rules and regulations necessary for the conduct of
business, except where the failure so to comply would not have a Material
Adverse Effect, and (d) engage only in the businesses which it is conducting on
the date of this Agreement.
Section 8.2. TAXES AND OTHER OBLIGATIONS. URHC and each of its
Subsidiaries (a) will pay and discharge, or cause to be paid and discharged, at
or prior to the time the same shall become due and payable all material taxes,
assessments and other governmental charges, imposed upon it and its properties,
sales and activities, or upon the income or profits therefrom, as well as the
claims for labor, materials, or supplies which if unpaid might by law become a
lien or charge upon any of its properties, and (b) will promptly pay or cause to
be paid when due, or in conformance with customary trade terms, all lease
obligations, trade debt and all other Indebtedness incident to its operations;
PROVIDED, HOWEVER, that URHC and any Subsidiary may contest any such taxes,
assessments, charges or claims in good faith so long as (i) an adequate reserve
therefor has been established and is maintained if and as required by generally
accepted accounting principles, (ii) no action to foreclose any lien with
respect thereto has been commenced, (iii) such contest has not resulted in any
property, rights or interests of URHC or its Subsidiaries being in jeopardy of
being sold, forfeited or lost during or as a result of such contest, (iv)
neither the Administrative Agent nor any Lender could become subject to any
civil fine or penalty or criminal fine or penalty, in each case as a result of
non-payment of such charge or claim, and (v) such contest does not, and could
not reasonably be expected to have Material Adverse Effect. URHC and each of its
Subsidiaries shall cause all applicable federal, state, local and franchise tax
returns and all amounts due thereunder to be filed and paid when due.
Section 8.3. MAINTENANCE OF PROPERTIES AND LEASES. URHC and each of its
Subsidiaries shall maintain, keep and preserve all of its tangible properties,
real, personal or otherwise, in good repair and working order, ordinary wear and
tear excepted and URHC and each of its Subsidiaries shall maintain, keep and
preserve all of its rights in its intangible properties. URHC and each of its
Subsidiaries shall replace and improve its properties as necessary for the
conduct of its business. URHC and each of its Subsidiaries shall comply in all
material respects with all leases naming it as lessee if non-compliance
therewith would have a Material Adverse Effect.
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Section 8.4. INSURANCE. URHC and each of its Subsidiaries (a) will keep
its principal assets which are of an insurable character insured by financially
sound and reputable insurers against loss or damage by fire, explosion or
hazards, by extended coverage in an amount not less than 80% of the insurable
value of the property insured, and (b) will maintain with financially sound and
reputable insurers insurance against other hazards and risks and liability to
persons and property to the extent and in the manner as requested by the
Administrative Agent, and in any event as customary for companies in similar
businesses similarly situated; PROVIDED, HOWEVER, that URHC and its Subsidiaries
may effect workmen's compensation insurance or similar coverage with respect to
operations in any particular state or other jurisdiction through an insurance
fund operated by such state or jurisdiction and may also be a self-insurer with
respect to workmen's compensation and with respect to group medical benefits
under any medical benefit plan. The provisions of the Security Documents
relating to insurance shall not be limited by the provisions of this Section
8.4. On request of the Administrative Agent from time to time, the Loan Parties
will render to the Administrative Agent a statement in reasonable detail as to
all insurance coverage required by this Section. A description of the material
elements of insurance coverage of URHC and its Subsidiaries as of the date
hereof is set forth on SCHEDULE 8.4.
Section 8.5. RECORDS, ACCOUNTS AND PLACES OF BUSINESS. URHC and each of
its Subsidiaries shall maintain comprehensive and accurate records and accounts,
including reserves, in accordance with generally accepted accounting principles
consistently applied. URHC and each of its Subsidiaries will promptly notify the
Administrative Agent of (a) any changes in the places of business of URHC and
its Subsidiaries and (b) any additional places of business which may arise
hereafter.
Section 8.6. INSPECTION. At any reasonable time and from time to time, the
Loan Parties shall permit the Administrative Agent, the Lenders and any of their
agents or representatives to examine and make copies of and abstracts from the
records and books of account of, and visit the properties of, the Loan Parties
and their Subsidiaries and to discuss the affairs, finances and accounts of the
Loan Parties and their Subsidiaries with any of their respective officers or
directors and with their independent accountants. In addition, the
Administrative Agent shall be entitled, and the Loan Parties shall permit the
Administrative Agent, to conduct field examinations of the Loan Parties and its
Subsidiaries, at the Borrowers' sole expense and at any time or times in the
Administrative Agent's discretion, PROVIDED THAT, if no Default shall have
occurred and be continuing, such examinations shall be at the Borrower's sole
expense only once during any twelve (12) month period.
Section 8.7. CHANGE IN OFFICERS OR DIRECTORS. URHC will promptly notify
the Administrative Agent in writing if there occurs any change in the executive
officers or directors of any of the Loan Parties.
Section 8.8. MAINTENANCE OF ACCOUNTS. The Loan Parties shall maintain the
Administrative Agent as their principal depository for their operating,
concentration and disbursement accounts. The Borrowers and the Affiliate
Guarantors may maintain depository accounts with other banks or financial
institutions for operation of Company Restaurants, PROVIDED that all excess
funds maintained in such accounts shall be deposited with the Administrative
Agent within two (2) Business Days after deposit in such accounts.
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Section 8.9. ACCESS TO INDEPENDENT PUBLIC ACCOUNTANTS. At any reasonable
time and from time to time, URHC shall provide the Agents, the Lenders and any
of their agents or representatives access to the independent public accountants
of URHC to discuss URHC's financial condition, including, without limitation any
recommendations of such independent public accountants concerning the
management, finances, financial controls or operations of URHC and its
Subsidiaries.
Section 8.10. TRANSFER OF ASSETS. On or before November 11, 2001, URI and
Saxet shall or shall cause its Subsidiaries to transfer substantially all of the
assets of the Subsidiaries listed on SCHEDULE 8.10 hereto, including any
obligations and liabilities under any lease or sublease agreements or other
agreement entered into pursuant to (i) the FFCA Financing Transaction, to SLP (a
direct first-tier Subsidiary of URC) or direct, first-tier Subsidiaries of SLP,
(ii) the Spencer I Financing Transaction, to SLA Mail, Inc. (a direct first-tier
Subsidiary of URC) or direct, first-tier Subsidiaries of SLA Mail, Inc., or
(iii) the Spencer II Financing Transaction, to SLA Mail II, Inc. (a direct
first-tier Subsidiary of URC) or direct, first-tier Subsidiaries of SLA Mail II,
Inc., each formed for the purpose of operating such properties, and upon each
such transfer all obligations and liabilities of each such Subsidiary, URI,
Saxet or any other Subsidiary under any agreement entered into pursuant to the
FFCA Financing Transaction, the Spencer I Financing Transaction or the Spencer
II Financing Transaction shall be released.
Section 8.11. Interest Rate Protection. On or before October 31, 2001, the
Borrowers shall have entered into Interest Rate Protection Agreements capping
the effective interest rate on not less than 50% of the outstanding principal
balance of the Term Notes for a period ending not earlier than three (3) years
following the Closing Date, on terms and conditions acceptable to the
Administrative Agent.
Section 8.12. FURTHER ASSURANCES. URHC and each of its Subsidiaries will
cooperate with the Agents and the Lenders and execute such further instruments
and documents as the Agents or the Lenders shall request to carry out to their
satisfaction the transactions contemplated by this Agreement and the other
Lender Agreements.
Section 8.13. EXECUTION OF SECURITY DOCUMENTS. URHC and its Subsidiaries,
at their sole expense, will deliver and record or file or cause to be delivered,
recorded or filed (a) on or before August 31, 2001, (i) executed Leasehold
Mortgages substantially in the form of the Leasehold Mortgage attached as
Exhibit J, but for differences required by local laws, on terms and conditions
reasonably acceptable to the Administrative Agent in order to grant the
Administrative Agent a first perfected mortgage on and security interest in all
leased properties listed on SCHEDULE 5.21(B), along with opinions of local
counsel in form and substance satisfactory to the Administrative Agent, as to
the execution and enforceability of the Leasehold Mortgages, Title Policies and
such other related matters as reasonably requested by the Administrative Agent,
(ii) executed mortgages in form and substance acceptable to the Administrative
Agent in order to grant the Administrative Agent a first perfected mortgage on
and security interest in all owned properties listed on SCHEDULE 5.21(B) along
with opinions of local counsel in form and substance satisfactory to the
Administrative Agent, as to the execution and enforceability of the mortgages,
Title Policies and such other related matters as reasonably requested by the
Administrative Agent, and (iii) executed Collateral Pledge and Assignments of
License substantially in the form of the Collateral Pledge and Assignment of
License attached as
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EXHIBIT K, but for differences required by local laws, on terms and conditions
reasonably acceptable to the Administrative Agent in order to grant the
Administrative Agent a first perfected security interest in all alcoholic
beverage licenses held by URHC and its Subsidiaries in the states of Florida,
Massachusetts, Pennsylvania, Rhode Island, Maryland and the District of
Columbia, along with opinions of local counsel in form and substance
satisfactory to the Administrative Agent, as to the execution and enforceability
of the Collateral Pledge and Assignment of License, and such other related
matters as reasonably requested by the Administrative Agent, and (b) on or
before October 31, 2001, executed Leasehold Mortgages substantially in the form
of the Leasehold Mortgage attached as EXHIBIT J, but for differences required by
local laws, on terms and conditions reasonably acceptable to the Agent in order
to grant the Agent a first perfected mortgage on and security interest in all
leased properties listed on SCHEDULE 5.21(B) along with opinions of local
counsel in form and substance satisfactory to the Administrative Agent, as to
the execution and enforceability of the Leasehold Mortgages, Title Policies and
such other related matters as reasonably requested by the Administrative Agent;
provided, however, that the Administrative Agent may in its reasonable
discretion, based on the best efforts of URHC and its Subsidiaries, extend the
time for performance of, or waive, any of the requirements set forth in this
clause (b). From and after the Closing Date, URHC and its Subsidiaries shall use
their best efforts to deliver to the Administrative Agent (i) landlord consent
and estoppel certificates for all leases entered into by URHC and its
Subsidiaries which were not delivered to the Administrative Agent on or prior to
the Closing Date, in form and substance acceptable to the Administrative Agent
and (ii) Leasehold Mortgages, Title Policies and opinions of counsel with
respect to all such leased properties under terms and conditions set forth in
clause (a)(i) above.
ARTICLE 9. NEGATIVE COVENANTS
On and after the date hereof, until all of the Lender Obligations shall
have been paid in full and the Lenders shall have no commitment to make Loans or
issue Letters of Credit hereunder, each Loan Party covenants that neither it nor
any of its Subsidiaries will:
Section 9.1. RESTRICTIONS ON INDEBTEDNESS. Create, incur, suffer or permit
to exist, or assume or guarantee, either directly or indirectly, or otherwise
become or remain liable with respect to, any Indebtedness, except the following:
(a) Indebtedness of URHC and its Subsidiaries described in SCHEDULE
5.16;
(b) Indebtedness on account of current liabilities (other than for
money borrowed) incurred in the normal and ordinary course of business;
(c) Indebtedness in respect of (i) taxes, assessments, governmental
charges or levies and claims for labor, materials and supplies to the extent
that payment thereof shall not at the time be required to be made in accordance
with the provisions of Section 8.2 hereof, (ii) judgments or awards which have
been in force for less than the applicable appeal period so long as execution is
not levied thereunder or in respect of which URHC or any Subsidiary shall at the
time in good faith be prosecuting an appeal or proceedings for review and in
respect of which a stay of execution shall have been obtained pending such
appeal or review, and (iii) endorsements
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made in connection with the deposit of items for credit or collection in the
ordinary course of business;
(d) Subordinated Indebtedness, PROVIDED, THAT, (i) the aggregate
amount of such Indebtedness shall not exceed $5,000,000, (ii) all such
Indebtedness is expressly subordinated, upon written terms and conditions
satisfactory in form and substance to the Agents and the Majority Lenders, in
right of payment and exercise of remedies to the prior payment in full of all
the Lender Obligations (and any refinancing of the Lender Obligations), (iii)
none of such Indebtedness is secured by any lien on any property (including any
capital stock or partnership or membership interests, as applicable) of the
Borrowers or any of their Subsidiaries, and no Subsidiary of the Borrowers has
any contingent obligation in respect of such Indebtedness, (iv) no Default or
Event of Default is continuing on the date of incurrence of such Indebtedness or
would result therefrom, and (v) all mandatory payment, prepayment, redemption,
repurchase, defeasance and similar obligations, all interest rates and payment
dates, and all covenants, conditions, events of default and other provisions in
respect of such Indebtedness are satisfactory in form and substance to the Agent
and the Majority Lenders;
(e) Guarantees permitted under Section 9.5;
(f) other Indebtedness in an aggregate amount not to exceed
$2,000,000, so long as on the date URHC or any Subsidiary becomes liable with
respect to such other Indebtedness and immediately after giving effect thereto
and to the concurrent retirement of any other Indebtedness, there shall be no
Default hereunder; and
(g) Indebtedness to the Administrative Agent and Lenders hereunder
and under the Notes and the other Lender Agreements.
Section 9.2. RESTRICTION ON LIENS. Create or incur or suffer to be created
or incurred or to exist any encumbrance, mortgage, pledge, lien, charge or other
security interest of any kind upon any of its property or assets of any
character, whether now owned or hereafter acquired, or transfer any of such
property or assets for the purposes of subjecting the same to the payment of
Indebtedness or performance of any other obligation in priority to payment of
its general creditors, or acquire or agree or have an option to acquire any
property or assets upon conditional sale or other title retention agreement,
device or arrangement (including Capitalized Leases) or suffer to exist for a
period of more than 30 days after the same shall have been incurred any
Indebtedness against it which if unpaid might by law or upon bankruptcy or
insolvency, or otherwise, be given any priority whatsoever over its general
creditors, or sell, assign, pledge or otherwise transfer for security any of its
accounts, contract rights, general intangibles, or chattel paper (as those terms
are defined in the UCC) with or without recourse; PROVIDED, HOWEVER, that URHC
and any Subsidiary may create or incur or suffer to be created or incurred or to
exist:
(a) Existing liens and security interests described in SCHEDULE 5.13
securing presently outstanding Indebtedness permitted by Section 9.1(a);
(b) Purchase money security interests (which term shall include
mortgages, conditional sale contracts, Capitalized Leases and all other title
retention or deferred purchase devices) to secure the purchase price of property
acquired hereafter by any Loan Party or
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Subsidiary, or to secure Indebtedness incurred solely for the purpose of
financing such acquisitions; PROVIDED, HOWEVER, that no such purchase money
security interests shall extend to or cover any property other than the property
the purchase price of which is secured by it, and that the principal amount of
Indebtedness (whether or not assumed) with respect to each item of property
subject to such a security interest shall not exceed the fair value of such item
on the date of its acquisition;
(c) Deposits or pledges made in connection with, or to secure
payment of, workmen's compensation, unemployment insurance, old age pensions or
other social security; liens in respect of judgments or awards to the extent
such judgments or awards are permitted as Indebtedness by the provisions of
Section 9.1(c); and liens for taxes, assessments or governmental charges or
levies and liens to secure claims for labor, material or supplies to the extent
that payment thereof shall not at the time be required to be made in accordance
with Section 8.2;
(d) Encumbrances in the nature of zoning restrictions, easements,
and rights or restrictions of record on the use of real property which do not
materially detract from the value of such property or impair its use in the
business of the owner or lessee;
(e) Liens (other than judgments and awards) created by or resulting
from any litigation or legal proceeding, provided the execution or other
enforcement thereof is effectively stayed and the claims secured thereby are
being actively contested in good faith by appropriate proceedings;
(f) Liens arising by operation of law to secure landlords, lessors
or renters under leases or rental agreements made in the ordinary course of
business and confined to the premises or property rented; and
(g) Liens in favor of the Administrative Agent for the benefit of
the Lenders securing the Lender Obligations.
(h) Mortgage liens on real property owned by the Loan Parties or any
Subsidiary securing Indebtedness permitted under 9.1(f).
Nothing contained in this Section 9.2 shall permit any Loan Party or any
Subsidiary to incur any Indebtedness or take any other action or permit to exist
any other condition to exist which would be in contravention of any other
provision of this Agreement.
Section 9.3. INVESTMENTS. Have outstanding or hold or acquire or make or
commit itself to acquire or make any Investment except the following:
(a) Investments having a maturity of less than one (1) year from the
date thereof in: (i) obligations of the Lenders; (ii) obligations of the United
States of America or any agency or instrumentality thereof; (iii) repurchase
agreements involving securities described in clauses (i) and (ii) with the
Lenders; and (iv) commercial paper which is rated not less than prime-one or A-1
or their equivalents by Moody's Investor Service, Inc. or Standard & Poor's
Corporation, respectively, or their successors;
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(b) readily marketable preferred stock commonly referred to as
either "auction rate preferred stock" or "money market preferred stock" having
on its date of acquisition a rating of either A- or higher from Standard &
Poor's Corporation or A-3 or higher from Moody's Investors Service, Inc.;
(c) marketable direct obligations issued by any state of the United
States of America or any political subdivision of any such state or any public
instrumentality thereof (i) maturing within one year from the date of
acquisition thereof (PROVIDED that there shall be no maximum maturity
restriction with respect to so-called "variable rate demand notes" whose
interest rate is adjusted at least annually to reflect market changes such that
the adjusted interest rate parallels the interest rate assumptions underlying
the initial interest rate of such obligations), and (ii) having on its date of
acquisition a rating of either A- or higher from Standard & Poor's Corporation
or A-3 or higher from Moody's Investors Service, Inc.;
(d) Existing Investments of the Loan Parties in their Subsidiaries;
(e) Investments consisting of intercompany advances between the
Borrowers and UFI; PROVIDED, HOWEVER, that at no time shall the net "due from"
account on the books of the Borrowers, adjusted to exclude non-cash royalty
charges, exceed $4,000,000, with respect to UFI;
(f) Investments in wholly-owned Subsidiaries which are Affiliate
Guarantors and Investments in subsidiaries described in SCHEDULE 9.3(F)
PROVIDED, THAT they are Affiliate Guarantors;
(g) Investments consisting of loans provided to employees of URHC
and its Subsidiaries in an aggregate amount outstanding at any one time not in
excess of $250,000;
(h) Ordinary advances to employees for travel and similar expenses
to a maximum aggregate amount of $200,000; and
(i) Investments in any restaurant that becomes a wholly-owned
Company Restaurant.
Section 9.4. DISPOSITIONS OF ASSETS. Sell, lease or otherwise dispose of
any assets except for (a) the sale, lease or other disposition of inventory or
other property (not including receivables) in the ordinary course of business,
or (b) so long as no Default exists or would result on an actual or pro forma
basis after giving effect thereto, other sales of assets so long as the earnings
before interest, taxes, depreciation and amortization attributable to the assets
to be sold, together with the earnings before interest, taxes, depreciation and
amortization attributable to all other assets sold, leased, contributed or
conveyed in the ordinary course of business pursuant to Section 9.4(a) during
the then current fiscal year does not exceed 10% of Consolidated EBITDA for the
fiscal year immediately preceding the then current fiscal year.
Section 9.5. ASSUMPTIONS, GUARANTEES, ETC. OF INDEBTEDNESS OF OTHER
PERSONS. Assume, guarantee, endorse or otherwise be or become directly or
contingently liable (including, without limitation, by way of agreement,
contingent or otherwise, to purchase, provide funds for
55
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payment, supply funds to or otherwise invest in any Person or otherwise assure
the creditors of any such Person against loss) in connection with any
Indebtedness of any other Person, except the following:
(a) Guarantees existing on the date of this Agreement, including the
Guarantees related to the MetLife Notes, each described in SCHEDULE 9.5, and
additional Guarantees of Indebtedness of Franchisees incurred in the ordinary
course of business, PROVIDED that the maximum amount of Indebtedness to which
all Guarantees under this Subsection 9.5(a) relate does not exceed, in the
aggregate, $7,000,000;
(b) Guarantees by endorsement of negotiable instruments for deposit
or collection or similar transactions in the ordinary course of business;
(c) Guarantees in favor of the Administrative Agent for the account
of the Lenders; and
(d) Guarantees of Indebtedness or Rental Obligations of Subsidiaries
to the extent such Indebtedness or Rental Obligations are permitted hereunder.
Section 9.6. MERGERS, ETC. Enter into any merger or consolidation with or
acquire all or substantially all of the assets of any Person, or sell, assign,
lease or otherwise dispose of (whether in one transaction or in a series of
transactions) all or substantially all of its assets (whether now owned or
hereafter acquired) to any Person, except that:
(a) URHC and its Subsidiaries may acquire new restaurants (whether
through the purchase of stock or assets), so long as no Default has occurred and
continues to exist hereunder or would, after giving effect to such acquisition,
occur;
(b) URHC and its Subsidiaries may engage in transactions permitted
under Section 9.4 hereof; and
(c) So long as no Default has occurred and continues to exist
hereunder or would, after giving effect to such transaction, occur, (i) UFI, PUC
and any Subsidiary of URI may consolidate with or merge into URI or any other
wholly-owned Subsidiary of URI so long as in any merger involving URI, URI shall
be the surviving corporation, (ii) URI and any Subsidiary of URI may acquire all
or substantially all of the assets of any other Subsidiary of UFI or PUC, (iii)
UFI, PUC and any Subsidiary of URI may sell, assign, lease or otherwise dispose
of all or substantially all of its assets to URI or any other wholly-owned
Subsidiary of URI, (iv) UFI, PUC, UHC and any of its Subsidiaries may
consolidate with or merge into any of UFI, PUC, UHC and any other wholly-owned
Subsidiary of such entities, (v) UFI, PUC, UHC and any of their wholly-owned
Subsidiaries may acquire all or substantially all of the assets of UFI, PUC, UHC
or any of their Subsidiaries, and (vi) UFI, PUC, UHC and any of their
Subsidiaries may sell, assign, lease or otherwise dispose of all or
substantially all of its assets to UFI, PUC, UHC and any of their wholly-owned
Subsidiaries. Acquisition may merge with and into URC.
Section 9.7. PENSION REFORM ACT. At any time while URHC or any of its
Subsidiaries has a Pension Plan, permit any accumulated funding deficiency to
occur with respect to any
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Pension Plan or other employee benefit plans established or maintained by URHC
or any such Subsidiary or to which contributions are made by URHC or any such
Subsidiary (the "Plans"), and which are subject to the Pension Reform Act and
the rules and regulations thereunder or to Section 412 of the Internal Revenue
Code of 1986, as amended (the "Code"), and at all times comply in all material
respects with the provisions of the Pension Reform Act and Code which are
applicable to the Plans. The Loan Parties will not permit any condition to exist
which would permit the Pension Benefit Guaranty Corporation to cause the
termination of any Pension Plan under circumstances which would cause the lien
provided for in Section 4068 of the Pension Reform Act to attach to the assets
of URHC or any of its Subsidiaries.
Section 9.8. DISTRIBUTIONS. Make any Distribution or make any other
payment on account of the purchase, acquisition, redemption, or other retirement
of any shares of stock, whether now or hereafter outstanding, except that so
long as no Default exists and is continuing (a) any Subsidiary may make
Distributions to its corporate parent which is either URC or a wholly-owned
Subsidiary of URC, (b) URHC may purchase shares of common stock of URHC from
Aaron Spencer in an aggregate amount not to exceed $1,000,000 annually for
purposes of contributing such stock to any employee benefit or compensation plan
of URHC, (c) URHC may repurchase shares of common stock of URHC held by
management employees of URHC pursuant to a management stock buy-back plan
adopted by the directors of URHC commencing in fiscal year 2003 in an aggregate
amount not to exceed $1,000,000 in fiscal year 2003 and $2,000,000 in fiscal
year 2004 and each fiscal year thereafter, and (d) URC (i) may pay its former
shareholders amounts due under the Merger Agreement as a result of the Merger
and (ii) may pay its former shareholders amounts in satisfaction of their
appraisal rights in an aggregate amount not to exceed $1,500,000.
Section 9.9. SALE AND LEASEBACK. Sell or transfer any of its properties
with the intention of taking back a lease of the same property or leasing other
property for substantially the same use as the property being sold or
transferred.
Section 9.10. FRANCHISE AGREEMENTS. Without the prior written consent of
the Lenders (which shall not be unreasonably withheld, delayed or conditioned),
(a) reduce or agree to reduce the continuing monthly royalties payable by
domestic Franchisees other than on a temporary basis or for specific Franchisees
and not generally for all Franchisees, or (b) reduce or agree to reduce the
amounts required to be contributed to an advertising cooperative fund or spent
on local advertising and public relations by domestic Franchisees other than on
a temporary basis or for specific Franchisees and not generally for all
Franchisees, or (c) make any other generally applicable changes to the Franchise
Program, except to the extent any such reduction or change would not have a
Material Adverse Effect. URHC's and its Subsidiary's domestic and international
franchise programs as now conducted and as presently proposed to be conducted
are described in SCHEDULE 9.10 attached hereto (the "Franchise Programs").
Section 9.11. CAPITAL STRUCTURE. Change its capital structure; nor will
URHC permit any of its Subsidiaries to suffer or permit any circumstance to
exist in which any Subsidiary is not wholly-owned, directly or indirectly, by
URHC.
Section 9.12. TRANSACTIONS WITH AFFILIATES. Enter into any transaction,
including, without limitation, the purchase, sale or exchange of any property,
or the rendering of any
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service, with any present Affiliate, except in the ordinary course of and
pursuant to the reasonable requirements of its business and upon fair and
reasonable terms no less favorable to it than would be obtained in a comparable
arms length transaction with any Person not an Affiliate.
Section 9.13. NEW SUBSIDIARIES. Establish or acquire any new wholly-owned
Subsidiaries unless, immediately upon such establishment or acquisition, such
new Subsidiary executes and delivers to the Lender a guaranty of the Lender
Obligations in substantially the form of the Affiliate Guaranty Agreement, and a
pledge agreement in substantially the form of the Pledge Agreement (as
applicable), along with proof of corporate action, incumbency of officers,
opinions of counsel and other documents as the Administrative Agent shall
reasonably request.
Section 9.14. NEW RESTAURANTS. Establish or acquire in any fiscal year
more than three (3) restaurants which do not utilize the "Uno Chicago Bar &
Grill" concept.
Section 9.15. FFCA SALE-LEASEBACK DOCUMENTS. Modify, amend, supplement,
waive or consent to the waiver of any provision of any of the FFCA
Sale-Leaseback Documents, or enter into any "Other Documents" as defined in the
FFCA Master Lease.
Section 9.16. SPENCER I SALE-LEASEBACK DOCUMENTS. Modify, amend,
supplement, waive or consent to the waiver of any provision of any of the
Spencer I Sale-Leaseback Documents, or enter into any "OTHER DOCUMENTS" as
defined in the Spenser I Master Lease.
Section 9.17. SPENCER II SALE-LEASEBACK DOCUMENTS. Modify, amend,
supplement, waive or consent to the waiver of any provision of any of the
Spencer II Sale-Leaseback Documents, or enter into any "OTHER DOCUMENTS" as
defined in the Spenser II Master Lease.
ARTICLE 10. EVENTS OF DEFAULT AND REMEDIES
Section 10.1. EVENTS OF DEFAULT. Each of the following events shall be
deemed to be Events of Default hereunder:
(a) The Borrowers shall fail to make any payment in respect of (i)
the principal of any of the Lender Obligations as the same shall become due,
whether at the stated payment dates or by acceleration or otherwise, or (ii)
interest or commitment fees on or in respect of any of the Lender Obligations as
the same shall become due, and such failure shall continue for a period of five
(5) days;
(b) The Loan Parties shall fail to perform or observe any of the
terms, covenants, conditions or provisions of Articles 6, 7 or 9 hereof;
(c) The Loan Parties shall fail to perform or observe any other
covenant, agreement or provision to be performed or observed by them under this
Agreement or any other Lender Agreement, and such failure shall not be rectified
or cured within thirty (30) days after the earlier of (i) notice by the
Administrative Agent to the Borrowers of such failure, or (ii) the date on which
the Borrowers know or reasonably should have known of such default;
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(d) Any representation or warranty of the Loan Parties herein or in
any other Lender Agreement or any amendment to any thereof shall have been
materially false or misleading at the time made or intended to be effective;
(e) Any Loan Party or any Subsidiary shall fail to make any payment
on account of Indebtedness for money borrowed by such Loan Party or Subsidiary
of which the total amount outstanding is in excess of $250,000, when such
payment is due (whether by scheduled maturity, required prepayment,
acceleration, demand or otherwise) or shall fail to perform or observe any
provision of any agreement or instrument relating to such Indebtedness, and such
failure shall permit the holder thereof to accelerate such Indebtedness;
(f) Any Loan Party or any Subsidiary shall be involved in financial
difficulties as evidenced:
(i) by its commencement of a voluntary case under Title 11 of
the United States Code as from time to time in effect, or by its
authorizing, by appropriate proceedings of its board of directors or other
governing body, the commencement of such a voluntary case;
(ii) by its filing an answer or other pleading admitting or
failing to deny the material allegations of a petition filed against it
commencing an involuntary case under said Title 11, or seeking, consenting
to or acquiescing in the relief therein provided, or by its failing to
controvert timely the material allegations of any such petition;
(iii) by the entry of an order for relief in any involuntary
case commenced under said Title 11;
(iv) by its seeking relief as a debtor under any applicable
law, other than said Title 11, of any jurisdiction relating to the
liquidation or reorganization of debtors or to the modification or
alteration of the rights of creditors generally, or by its consenting to
or acquiescing in such relief;
(v) by the entry of an order by a court of competent
jurisdiction (1) by finding it to be bankrupt or insolvent, (2) ordering
or approving its liquidation, reorganization or any modification or
alteration of the rights of its creditors generally, or (3) assuming
custody of, or appointing a receiver or other custodian for all or a
substantial part of its property and such order shall not be vacated or
stayed on appeal or otherwise stayed within sixty (60) days;
(vi) by the filing of a petition against any Loan Party or any
Subsidiary under said Title 11 which shall not be vacated within sixty
(60) days; or
(vii) by its making an assignment for the benefit of, or
entering into a composition with, its creditors generally, or appointing
or consenting to the appointment of a receiver or other custodian for all
or a substantial part of its property;
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(g) There shall have occurred a judgment against any Loan Party or
any Subsidiary in any court (i) for an amount in excess of $350,000 not covered
by insurance and which is neither discharged nor provision made for such
discharge within sixty (60) days from the date of entry thereof, and from which
no appeal has been taken or with respect to which all appeal periods have
expired, or (ii) which shall have a Material Adverse Effect;
(h) The occurrence of a Change of Control;
(i) Any "Event of Default" under any other Lender Agreement shall
have occurred; or
(j) (i) Any Person shall engage in any "prohibited transaction" (as
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such Plan for
purposes of Title IV of ERISA, unless such Reportable Event, proceedings or
appointment are being contested by the Borrower in good faith and by appropriate
proceedings, (iv) any Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrowers or any member of a Controlled Group shall incur any liability
in connection with a withdrawal from a Multiemployer Plan or the insolvency
(within the meaning of Section 4245 of ERISA) or reorganization (within the
meaning of Section 4241 of ERISA) of a Multiemployer Plan, unless such liability
is being contested by the Borrower in good faith and by appropriate proceedings,
or (vi) any other event or condition shall occur or exist, with respect to a
Plan; and in each case in clauses (i) through (vi) above, such event or
condition, together with all other such events or conditions, if any, could
subject the Borrowers or any Guarantor to any tax, penalty or other liabilities
in the aggregate exceeding $10,000,000.
Section 10.2. REMEDIES.
(a) Upon the occurrence of an Event of Default, in each and every
case, the Administrative Agent may, and upon the request of the Majority Lenders
shall, proceed to protect and enforce the rights of the Administrative Agent and
the Lenders by suit in equity, action at law and/or other appropriate proceeding
either for specific performance of any covenant or condition contained in this
Agreement or any other Lender Agreement or in any instrument delivered to the
Administrative Agent or the Lenders pursuant hereto or thereto, or in aid of the
exercise of any power granted in this Agreement, any Lender Agreement or any
such instrument, and (unless there shall have occurred an Event of Default under
Section 10.1(f), in which case the unpaid balance of the Lender Obligations
shall automatically become due and payable without notice or demand) the
Administrative Agent may, at the direction of the Majority Lenders, by notice in
writing to the Borrowers (i) declare the obligations of the Lenders to make
Revolving Credit Advances, and the obligations of the Administrative Agent to
issue, extend or renew Letters of Credit to be terminated, whereupon such
obligations shall be terminated, (ii) declare all or any part of the unpaid
balance of the Lender Obligations then outstanding to be forthwith due and
payable, whereupon such unpaid balance or part thereof shall become so due and
payable without presentation, protest or further demand or notice of any kind,
all of which
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are hereby expressly waived, and the Administrative Agent may proceed to enforce
payment of such balance or part thereof in such manner as the Administrative
Agent may elect, and the Administrative Agent and each Lender may offset and
apply toward the payment of such balance or part thereof any Indebtedness of the
Administrative Agent or any Lender to any Borrower or to any Subsidiary, or to
any obligor of the Lender Obligations, including any Indebtedness represented by
deposits in any general or special account maintained with the Administrative
Agent or any Lender or with any other Person controlling, controlled by or under
common control with the Administrative Agent or any Lender and (iii) demand that
the Borrowers provide cash collateral to the Administrative Agent as security
for the Lenders in an amount equal to 105% of the Letter of Credit Exposure
which the Borrowers shall provide to the Administrative Agent immediately upon
such demand.
(b) No remedy conferred upon the Administrative Agent or the Lenders
is intended to be exclusive of any other remedy, and each remedy shall be
cumulative of all other remedies existing by contract, at law, in equity, by
statute or otherwise.
ARTICLE 11. CONSENTS; AMENDMENTS; WAIVERS; REMEDIES
Section 11.1. ACTIONS BY LENDERS. Except as otherwise expressly set forth
in any particular provision of this Agreement, any consent or approval required
or permitted by this Agreement to be given by the Lenders, including without
limitation under Section 11.2, may be given, and any term of this Agreement or
of any other instrument related hereto or mentioned herein may be amended, and
the performance or observance by the Borrowers of any term of this Agreement may
be waived (either generally or in a particular instance and either retroactively
or prospectively) with, but only with, the written consent of the Borrowers and
the Majority Lenders; PROVIDED, HOWEVER, that without the written consent of all
Lenders:
(a) no reduction in the principal or interest rates on or any fees
relating to the Revolving Credit Advances or the Term Loans shall be made;
(b) no extension or postponement shall be made of the stated time of
payment of the principal amount of, interest on, or fees payable to the Lenders
relating to the Revolving Credit Advances or the Term Loans;
(c) no increase in the Maximum Revolving Credit Amount, or extension
of the Revolving Credit Termination Date or the Term Loan Maturity Date shall be
made;
(d) no release of all or substantially all of the collateral
security for, or any material obligor or guarantor of, the Lender Obligations
shall be made;
(e) no change in the definition of the term "Majority Lenders" shall
be made; and
(f) no change in the provisions of this Section 11.1 shall be made.
Section 11.2. ACTIONS BY BORROWERS. No delay or omission on the
Administrative Agent's or the Lenders' part in exercising their rights and
remedies against the Borrowers or any other interested party shall constitute a
waiver. A breach by the Borrowers of their obligations
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under this Agreement may be waived only by a written waiver executed by the
Administrative Agent and the Lenders in accordance with Section 11.1. The
Administrative Agent's and the Lenders' waiver of the Borrowers' breach in one
or more instances shall not constitute or otherwise be an implicit waiver of
subsequent breaches. To the extent permitted by applicable law, the Borrowers
hereby agree to waive, and do hereby absolutely and irrevocably waive (a) all
presentments, demands for performance, notices of protest and notices of
dishonor in connection with any of the Indebtedness evidenced by the Revolving
Credit Notes or the Term Notes, (b) any requirement of diligence or promptness
on the Administrative Agent's or the Lenders' part in the enforcement of its
rights under the provisions of this Agreement or any Lender Agreement, and (c)
any and all notices of every kind and description which may be required to be
given by any statute or rule of law with respect to their liability (i) under
this Agreement or in respect of the Indebtedness evidenced by the Revolving
Credit Notes, the Term Notes or any other Lender Obligation or (ii) under any
other Lender Agreement. No course of dealing between the Borrowers and the
Administrative Agent or the Lenders shall operate as a waiver of any of the
Administrative Agent's or the Lenders' rights under this Agreement or any Lender
Agreement or with respect to any of the Lender Obligations. This Agreement shall
be amended only by a written instrument executed by the Administrative Agent and
the Lenders in accordance with Section 11.1 making explicit reference to this
Agreement. The Administrative Agent's and the Lenders' rights and remedies under
this Agreement and under all subsequent agreements between the Administrative
Agent, the Lenders and the Borrowers shall be cumulative and any rights and
remedies expressly set forth herein shall be in addition to, and not in
limitation of, any other rights and remedies which may be applicable to the
Administrative Agent and the Lenders in law or at equity.
ARTICLE 12. SUCCESSORS AND ASSIGNS
Section 12.1. GENERAL. This Agreement shall be binding upon and shall
inure to the benefit of the parties hereto and their respective successors
(which shall include in the case of the Administrative Agent or any Lender any
entity resulting from a merger or consolidation) and assigns, except that (a)
the Borrowers may not assign their rights or obligations under this Agreement,
and (b) each Lender may assign its rights in this Agreement only as set forth
below in this Article 12.
Section 12.2. ASSIGNMENTS.
(a) ASSIGNMENTS. In compliance with applicable laws with respect to
such assignment and with the consent of the Borrowers (PROVIDED that if there
shall exist a Default, the Borrowers' consent shall not be required for any such
assignment) and the Administrative Agent (which consents in all cases shall not
be unreasonably withheld), a Lender may assign to one or more financial
institutions (each a "Successor Lender") a proportionate part of its rights and
obligations in connection with this Agreement, its Revolving Credit Note and its
Term Notes and the related Lender Agreements and each such Successor Lender
shall assume such rights and obligations pursuant to an Assignment and
Acceptance Agreement ("Assignment and Acceptance Agreement") duly executed by
such Successor Lender and such assigning Lender and acknowledged and consented
to by the Borrowers and the Administrative Agent, substantially in the form of
EXHIBIT F attached hereto. Any assignment under this Section (a) shall be in a
minimum amount of $1,000,000 with respect to the Term Loan, and a proportionate
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share of the Revolving Credit Advances and Commitment Percentage of the Maximum
Revolving Credit Amount. In connection with any assignment under this Section
12.2(a) there shall be paid to the Administrative Agent by the assigning Lender
or the Successor Lender an administrative processing fee in the amount of
$3,000.
(b) ASSIGNMENT PROCEDURES. In the event of an assignment in
accordance with Section 12.2(a), upon execution and delivery of such an
Assignment and Acceptance Agreement at least five (5) Business Days prior to the
proposed assignment date, and payment by such Successor Lender to the assigning
Lender of an amount equal to the purchase price agreed between such assigning
Lender and such Successor Lender, such Successor Lender shall become party to
this Agreement as a signatory hereto and shall have all the rights and
obligations of a Lender under this Agreement and the other Lender Agreements
with an interest therein as set forth in such assignment, and such assignor
making such assignment shall be released from its obligations hereunder to a
corresponding extent, and no further consent or action by any party shall be
required. Upon the consummation of any such assignment, the assigning Lender,
the Successor Lender and the Borrowers shall make appropriate arrangements so
that, if required, a new Revolving Credit Note and new Term Notes are issued to
the Successor Lender and a replacement Revolving Credit Note and replacement
Term Notes are issued to the assigning Lender in principal amounts reflecting
their respective revised interests.
(c) REGISTER. The Administrative Agent shall maintain a register
(the "Register") for the recordation of (i) the names and addresses of all
Successor Lenders that enter into Assignment and Acceptance Agreements, (ii) the
interests of each Lender, and (iii) the amounts of the Term Loans and the
Revolving Credit Advances owing to each Lender from time to time. The entries in
the Register shall be conclusive, in the absence of manifest error, and the
Borrowers, the Administrative Agent and the Lenders may treat each Person whose
name is registered therein for all purposes as a party to this Agreement. The
Register shall be available for inspection by the Borrowers or any Lender at any
reasonable time and from time to time upon reasonable prior notice.
(d) FURTHER ASSURANCES. The Borrowers shall sign such documents and
take such other actions from time to time reasonably requested by the
Administrative Agent or a Lender to enable any Successor Lender to share in the
benefits and rights created by the Lender Agreements.
(e) ASSIGNMENTS TO FEDERAL RESERVE BANK. Any Lender may at any time
pledge or assign all or any portion of its rights under the Lender Agreements,
including any portion of the Notes, to any of the twelve (12) Federal Reserve
Banks organized under Section 4 of the Federal Reserve Act, 12 U.S.C. Section
341. No such pledge or assignment or enforcement thereof shall release such
Lender from its obligations under any of the Lender Agreements.
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Section 12.3. PARTICIPATIONS. Any Lender may, without the consent of the
Borrowers or the Administrative Agent, at any time grant or offer to grant to
one or more financial institutions ("Credit Participants") participating
interests in such Lender's rights and obligations in this Agreement, its
Revolving Credit Note, its Term Notes and the related Lender Agreements, and
each such Credit Participant shall acquire such participation subject to the
terms set forth below.
(a) AMOUNT. Each such participation shall be in a minimum amount of
at least $1,000,000.
(b) PROCEDURE. Each Lender granting such participation shall comply
with all applicable laws with respect to such transfer and shall remain
responsible for the performance of its obligations hereunder and under the other
Lender Agreements and shall retain the sole right and responsibility to exercise
its rights and to enforce the obligations of the Borrowers hereunder and under
the other Lender Agreements, including the right to consent to any amendment,
modification or waiver of any provision of any Lender Agreement, except for
those matters referred to in Section 11.1 which require the consent of all
Lenders and which may also require the consent of each Credit Participant.
(c) DEALING WITH LENDERS. The Borrowers shall continue to deal
solely and directly with the Lenders in connection with their rights and
obligations under this Agreement and the other Lender Agreements.
(d) RIGHTS OF CREDIT PARTICIPANTS. The Borrowers agree that each
Credit Participant shall, to the extent provided in its participation
instrument, be entitled to the benefits of Sections 2.8, 2.9, 2.10, 2.12, 2.13
and 14.5, and the setoff rights in Section 10.2 with respect to its
participating interest; PROVIDED, HOWEVER, that no Credit Participant shall be
entitled to receive any greater payment under such Sections than the Lender
granting such participation would have been entitled to receive with respect to
the interests transferred.
(e) NOTICE. At the time of granting any participation, the Lender
granting such participation shall notify the Administrative Agent and the
Borrowers.
ARTICLE 13. THE ADMINISTRATIVE AGENT
Section 13.1. AUTHORIZATION AND ACTION. Each Lender hereby appoints and
authorizes the Administrative Agent to take such action on its behalf and to
exercise such powers under this Agreement and the other Lender Agreements as are
delegated to the Administrative Agent by the terms hereof and thereof, together
with such powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement and the other Lender Agreements
(including, without limitation, enforcement or collection of the Revolving
Credit Notes or the Term Notes), the Administrative Agent shall not be required
to exercise any discretion or take any action, but shall be required to act or
to refrain from acting (and shall be fully protected in so acting or refraining
from acting) upon the instructions of the Majority Lenders, and such
instructions shall be binding upon all Lenders; PROVIDED, HOWEVER, that the
Administrative Agent shall not be required to take any action which exposes the
Administrative Agent to liability or which is contrary to this Agreement or the
other Lender Agreements or applicable law. Subject to the foregoing provisions
and to the other provisions of this Article 13, the Administrative
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Agent shall, on behalf of the Lenders: (a) execute any documents on behalf of
the Lenders providing collateral for or guarantees of the Lender Obligations;
(b) hold and apply any collateral for the Lender Obligations, and the proceeds
thereof, at any time received by it, in accordance with the provisions of this
Agreement and the other Lender Agreements; (c) exercise any and all rights,
powers and remedies of the Lenders under this Agreement or any of the other
Lender Agreements, including the giving of any consent or waiver or the entering
into of any amendment, subject to the provisions of Section 11.1; (d) at the
direction of the Lenders, execute, deliver and file UCC financing statements,
mortgages, deeds of trust, lease assignments and such other agreements in
respect of any collateral for the Lender Obligations, and possess instruments
included in the collateral on behalf of the Lenders; and (e) in the event of
acceleration of the Borrowers' Indebtedness hereunder, act at the direction of
the Majority Lenders to exercise the rights of the Lenders hereunder and under
the other Lender Agreements.
Section 13.2. ADMINISTRATIVE AGENT'S RELIANCE, ETC. Neither the
Administrative Agent nor any of its directors, officers, agents or employees
shall be liable to the Lenders for any action taken or omitted to be taken by it
or them under or in connection with this Agreement or the other Lender
Agreements, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, the Administrative Agent:
(a) may treat the payee of any Revolving Credit Note or any Term Note as the
holder thereof until the Administrative Agent receives written notice of the
assignment or transfer thereof signed by such payee and in form required under
Article 12 hereof; (b) may consult with legal counsel, independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representations to any Lender and shall not be responsible to any Lender for any
statements, warranties or representations made in or in connection with this
Agreement or the other Lender Agreements; (d) shall not have any duty to
ascertain or to inquire as to the performance or observance of any of the terms,
covenants or conditions of this Agreement or the other Lender Agreements on the
part of the Borrowers or any other Person or to inspect the property (including
the books and records) of the Borrowers or any other Person; (e) shall not be
responsible to any Lender for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement or the other
Lender Agreements or any other instrument or document furnished pursuant hereto
or thereto; and (f) shall incur no liability under or in respect of this
Agreement or the other Lender Agreements by acting upon any notice, consent,
certificate or other instrument or writing (which may be by telecopy or
telegram) believed by the Administrative Agent to be genuine and signed or sent
by the proper party or parties.
Section 13.3. ADMINISTRATIVE AGENT AS A LENDER. With respect to its
interest in the Term Loans and its Commitment Percentage of the Revolving Credit
Advances hereunder, Fleet National Bank shall have the same rights and powers
under this Agreement and the other Lender Agreements as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lender(s)" shall, unless otherwise expressly indicated, include
Fleet National Bank in its individual capacity. Fleet National Bank and its
affiliates may lend money to, and generally engage in any kind of business with,
the Loan Parties, any of the Loan Parties Affiliates and any Person who may do
business with or own securities of the Loan Parties or any such Affiliate of the
Loan Parties, all as if Fleet National Bank were not the Administrative Agent
and without any duty to account therefor to the Lenders.
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Section 13.4. LENDER CREDIT DECISION. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Section 5.9
and such other documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement.
Section 13.5. INDEMNIFICATION OF ADMINISTRATIVE AGENT. Each Lender agrees
to indemnify the Administrative Agent and its directors, officers, employees and
agents (to the extent that the Administrative Agent is not reimbursed by the
Borrowers), ratably according to each Lender's Commitment Percentage, from and
against any and all liabilities, obligations, losses (excluding credit losses
incurred by Fleet National Bank as Lender), damages, penalties, actions,
judgments, suits, costs, expenses or disbursements of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against the
Administrative Agent or its directors, officers, employees or agents in any way
relating to or arising out of this Agreement or any other Lender Agreement or
any action taken or omitted by the Administrative Agent in such capacity under
this Agreement; PROVIDED that no Lender shall be liable for any portion of such
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct. Without limitation of the foregoing, each
Lender agrees to reimburse the Administrative Agent promptly upon demand for its
ratable share of any out-of-pocket expenses (including counsel fees) incurred by
the Administrative Agent in connection with the preparation, execution,
delivery, administration, modification, amendment or enforcement (whether
through negotiations, legal proceedings or otherwise) of, or legal advice in
respect of rights or responsibilities under, this Agreement and each other
Lender Agreement, to the extent that the Administrative Agent is not reimbursed
for such expenses by the Borrowers.
Section 13.6. SUCCESSOR ADMINISTRATIVE AGENT. Except as provided below,
the Administrative Agent may resign at any time by giving written notice thereof
to the Lenders and the Borrowers. Upon any such resignation, the Lenders shall
have the right to appoint a successor Administrative Agent which shall be
reasonably acceptable to the Borrowers. If no successor Administrative Agent
shall have been so appointed by the Lenders (other than the resigning
Administrative Agent), and shall have accepted such appointment, within thirty
(30) days after the retiring Administrative Agent's giving notice of
resignation, then the retiring Administrative Agent may, on behalf of the
Lenders, appoint a successor Administrative Agent, which shall be a commercial
bank or financial institution organized under the laws of the United States of
America or of any state thereof and having a combined capital and surplus of at
least $50,000,000. Upon the acceptance of any appointment as Administrative
Agent hereunder by a successor Administrative Agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Lender Agreements. After any
retiring Administrative Agent's resignation hereunder as Administrative Agent,
the provisions of this Article 13 shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Administrative Agent under this
Agreement and the other Lender Agreements.
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Section 13.7. AMENDMENT OF ARTICLE 13. The Borrowers hereby agree that the
foregoing provisions of this Article 13 constitute an agreement among the
Administrative Agent and the Lenders (and the Administrative Agent and the
Lenders acknowledge that except for the provisions of Section 13.6, the
Borrowers are not parties to or bound by such foregoing provisions) and that any
and all of the provisions of this Article 13 may be amended at any time by the
Lenders without the consent or approval of, or notice to, the Borrowers (other
than the requirement of notice to the Borrowers of the resignation of the
Administrative Agent and the appointment of a successor Administrative Agent).
ARTICLE 14. MISCELLANEOUS
Section 14.1. NOTICES. All notices and other communications made or
required to be given pursuant to this Agreement shall be in writing and shall be
mailed by United States mail, postage prepaid, or sent by hand, by telecopy or
by nationally-recognized overnight carrier service, addressed as follows:
(a) If to the Administrative Agent, at 100 Federal Street, Boston,
MA 02110, Telecopier No. (617) 434-1279, Attention: Ms. Elise M. Russo, Senior
Vice President, with a copy to: Goodwin Procter LLP, Exchange Place, Boston, MA
02109, Telecopier No. 617-523-1231, Attention: Edward Matson Sibble, Jr., P.C.
or at such other address(es) or to the attention of such other Person(s) as the
Administrative Agent shall from time to time designate in writing to the
Borrowers and the Lenders.
(b) If to the Borrowers or any other Loan Parties, at 100 Charles
Park Road, West Roxbury, MA 02132, Telecopier No. (617) 218-5375, Attention:
Chief Financial Officer or at such other address(es) or to the attention of such
other Person(s) as the Borrower shall from time to time designate in writing to
the Administrative Agent and the Lenders.
(c) If to any Lender, at the address(es) and to the attention of the
Person(s) specified below such Lender's name on the execution page of this
Agreement (or in the case of a Successor Lender, at the address(es) and to the
attention of the Person(s) specified in the Assignment and Acceptance Agreement
executed by such Successor Lender), or at such other address(es) and to the
attention of such other Person(s) as any Lender shall from time to time
designate in writing to the Administrative Agent and the Borrowers.
Any notice so addressed and mailed by registered or certified mail shall
be deemed to have been given when mailed. Any notice so addressed and sent by
hand, by telecopy or by overnight carrier service shall be deemed to have been
given when received.
A notice from the Administrative Agent stating that it has been given on
behalf of the Lenders shall be relied upon by the Borrowers as having been given
by the Lenders.
Section 14.2. MERGER. This Agreement and the other Lender Agreements are
intended by the parties as the final, complete and exclusive statement of the
transactions evidenced by this Agreement and the other Lender Agreements. All
prior or contemporaneous promises, agreements and understandings, whether oral
or written, are deemed to be superseded by this Agreement and the other Lender
Agreements, and no party is relying on any promise, agreement
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or understanding not set forth in this Agreement and the other Lender
Agreements. This Agreement and the other Lender Agreements may not be amended or
modified except by a written instrument describing such amendment or
modification executed in accordance with Section 11.1 hereof.
Section 14.3. GOVERNING LAW; CONSENT TO JURISDICTION. This Agreement and
the rights and obligations of the parties hereunder shall be governed by and
construed, interpreted and enforced under the laws of The Commonwealth of
Massachusetts (excluding the laws applicable to conflicts or choice of law).
Each Loan Party hereby irrevocably submits itself to the non-exclusive
jurisdiction of the courts of The Commonwealth of Massachusetts and to the
non-exclusive jurisdiction of any Federal court of the United States located in
the District of Massachusetts for the purpose of any suit, action or other
proceeding arising out of this Agreement or any other Lender Agreement or any of
the transactions contemplated hereby or thereby.
Section 14.4. COUNTERPARTS; REPLACEMENT OF INSTRUMENTS. This Agreement and
all amendments to this Agreement may be executed in several counterparts, each
of which shall be an original. The several counterparts shall constitute a
single Agreement. Upon receipt of an affidavit of an officer of the
Administrative Agent or any Lender as to the loss, theft, destruction or
mutilation of a Note or any other security document which is not of public
record, and, in the case of any such loss, theft, destruction or mutilation,
upon cancellation of such Note or other security document, the Borrowers will
issue, in lieu thereof, a replacement Note or other security document in the
same principal amount thereof and otherwise of like tenor.
Section 14.5. EXPENSES AND INDEMNIFICATION.
(a) The Loan Parties agree, jointly and severally, to pay, on
demand, all of the Administrative Agent's reasonable expenses in connection with
the preparation, execution, delivery, administration, default, collection,
waiver or amendment of this Agreement, the Lender Agreements and all related
instruments and documents, including, without limitation, the reasonable fees
and out-of-pocket expenses of the Administrative Agent's special counsel,
Goodwin Procter LLP, and if a Default has occurred and is continuing, reasonable
allocated costs of in-house legal counsel, and reasonable accounting,
consulting, brokerage and other similar professional fees or expenses, any
reasonable fees or expenses associated with travel and other direct out
of-pocket costs relating to any appraisals, audits or examinations conducted in
connection with the credits extended hereunder or any collateral therefor. The
Loan Parties also agree, jointly and severally, to pay, on demand, all
reasonable out-of-pocket expenses incurred by the Administrative Agent and the
Lenders, including, without limitation, reasonable legal and accounting fees, in
connection with the collection of amounts due hereunder and under all other
Lender Agreements upon the occurrence of an Event of Default hereunder, the
exercise, revision, preservation, protection or enforcement of any of the
Administrative Agent's or the Lenders' rights against the Borrower and all other
Loan Parties or other options under this Agreement, the Notes and all other
Lender Agreements and the administration of special problems that may arise
under this Agreement or any other Lender Agreement. The Loan Parties also agree,
jointly and severally, to pay all stamp and other taxes in connection with the
execution and delivery of this Agreement and related instruments and documents.
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(b) Without limitation of any other obligation or liability of the
Loan Parties or right or remedy of the Administrative Agent or the Lenders
contained herein, the Loan Parties hereby covenant, jointly and severally, and
agree to indemnify and hold the Administrative Agent, the Lenders, and the
directors, officers, subsidiaries, shareholders, agents, affiliates and Persons
controlling the Administrative Agent and the Lenders, harmless from and against
any and all damages, losses (other than loss of profits), settlement payments,
obligations, liabilities, claims, including, without limitation, claims for
finder's or broker's fees, actions or causes of action, and reasonable costs and
expenses incurred, suffered, sustained or required to be paid by any such
indemnified party in each case by reason of or resulting from any claim relating
to the transactions contemplated hereby, other than any such claims which are
determined by a final, non-appealable judgment or order of a court of competent
jurisdiction to be the result of the gross negligence or willful misconduct of
such indemnified party. Promptly upon receipt by any indemnified party hereunder
of notice of the commencement of any action against such indemnified party for
which a claim is to be made against the Loan Parties hereunder, such indemnified
party shall notify the Loan Parties in writing of the commencement thereof,
although the failure to provide such notice shall not affect the indemnification
rights of any such indemnified party hereunder unless and only to the extent the
Loan Parties demonstrate to the reasonable satisfaction of such party that such
failure to provide notice prejudiced the Loan Parties in its defense of such
claim. The Loan Parties shall have the right, at their option upon notice to the
indemnified parties, to defend any such matter at its own expense and with their
own counsel, except as provided below, which counsel must be reasonably
acceptable to the indemnified parties. The indemnified party shall cooperate
with the Loan Parties in the defense of such matter. The indemnified party shall
have the right to employ separate counsel and to participate in the defense of
such matter at its own expense. In the event that (a) the employment of separate
counsel by an indemnified party has been authorized in writing by the Loan
Parties, (b) the Loan Parties have failed to assume the defense of such matter
within fifteen (15) days of notice thereof from the indemnified party, or (c)
the named parties to any such action (including impleaded parties) include any
indemnified party who has been advised by counsel that there may be one or more
legal defenses available to it or prospective bases for liability against it,
which are different from those available to or against the Loan Parties then the
Loan Parties shall not have the right to assume the defense of such matter with
respect to such indemnified party. The Loan Parties shall not be liable for any
compromise or settlement of any such matter without Borrowers' written consent,
which consent shall not be unreasonably withheld or delayed. The Loan Parties
shall not compromise or settle any such matter against an indemnified party
without the written consent of the indemnified party, which consent may not be
unreasonably withheld or delayed.
(c) All amounts payable by the Loan Parties under this Section 14.5
shall, until paid, bear interest at the rate applicable to Base Rate Loans
hereunder (including any default rate) and be an obligation secured by any
collateral.
Section 14.6. CONFIDENTIALITY. The Administrative Agent and the Lenders
agree to use commercially reasonable efforts to keep in confidence all financial
data and other information relative to the affairs of the Borrowers and the
other Loan Parties heretofore furnished or which may hereafter be furnished to
them pursuant to the provisions of this Agreement; PROVIDED, HOWEVER, that this
Section 14.6 shall not be applicable to information otherwise disseminated to
the public by the Borrowers, the Loan Parties or any of their Affiliates; and
PROVIDED FURTHER,
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HOWEVER, that such obligation of the Administrative Agent and the Lenders shall
be subject to the Administrative Agent's or the Lenders', as the case may be,
(a) obligation to disclose such information pursuant to a request or order under
applicable laws and regulations or pursuant to a subpoena or other legal
process, (b) right to disclose any such information to bank examiners,
affiliates, auditors, accountants and counsel who agree to keep such information
confidential, and (c) right to disclose any such information (i) in connection
with the transactions set forth herein including assignments or the sale of
participation interests pursuant to Article 12, so long as such potential
assignees or participants shall agree in writing to be bound by the terms of
this Section 14.6, or (ii) in connection with any litigation or dispute
involving the Administrative Agent or any transfer or other disposition by the
Administrative Agent or the Lenders, as the case may be, of any of the Lender
Obligations; PROVIDED that information disclosed pursuant to this provision
shall be so disclosed subject to such procedures as are reasonably calculated to
maintain the confidentiality thereof.
Section 14.7. USURY LIMITATION. All agreements between the Borrowers and
the other Loan Parties and the Lenders are hereby expressly limited so that in
no contingency or event whatsoever, whether by reason of acceleration of
maturity of the indebtedness evidenced hereby or otherwise, shall the amount
paid or agreed to be paid to the Lenders for the use or the forbearance of the
Lender Obligations exceed the maximum permissible under applicable law. As used
herein, the term "applicable law" shall mean the law in effect as of the date
hereof; PROVIDED, HOWEVER, that in the event there is a change in the law which
results in a higher permissible rate of interest, then this provision shall be
governed by such new law as of its effective date. In this regard, it is
expressly agreed that it is the intent of the Borrowers, the other Loan Parties
and the Lenders in the execution, delivery and acceptance of this Agreement and
the other Lender Agreements to contract in strict compliance with the laws of
the Commonwealth of Massachusetts from time to time in effect. If, under or from
any circumstances whatsoever, fulfillment of any provision hereof or of any of
the Lender Agreements at the time of performance of such provision shall be due,
shall involve transcending the limit of such validity prescribed by applicable
law, then the obligation to be fulfilled shall automatically be reduced to the
limits of such validity, and if under or from any circumstances whatsoever the
Lenders should ever receive as interest an amount which would exceed the highest
lawful rate, such amount which would be excessive interest shall be applied to
the reduction of the principal balance of the Lender Obligations, as determined
by the Lenders, and not to the payment of interest. This provision shall control
every other provision of all Lender Agreements.
Section 14.8. WAIVER OF JURY TRIAL; VENUE. THE BORROWERS, THE OTHER LOAN
PARTIES, THE AGENTS AND THE LENDERS MUTUALLY HEREBY KNOWINGLY, VOLUNTARILY AND
INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN RESPECT OF ANY CLAIM BASED
HEREON, ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT, THE NOTES OR
ANY OTHER LENDER AGREEMENTS EXECUTED IN CONNECTION HEREWITH OR ANY COURSE OF
CONDUCT, COURSE OF DEALINGS, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS
OF ANY PARTY, INCLUDING, WITHOUT LIMITATION, ANY COURSE OF CONDUCT, COURSE OF
DEALINGS, STATEMENTS OR ACTIONS OF THE AGENTS OR ANY LENDER RELATING TO THE
ADMINISTRATION OF THE CREDITS HEREUNDER OR ENFORCEMENT OF THIS AGREEMENT OR ANY
OF THE OTHER
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LENDER AGREEMENTS, AND AGREE THAT NO PARTY WILL SEEK TO CONSOLIDATE ANY SUCH
ACTION WITH ANY OTHER ACTION IN WHICH A JURY TRIAL CANNOT BE OR HAS NOT BEEN
WAIVED. EXCEPT AS PROHIBITED BY LAW, THE BORROWERS, AND THE OTHER LOAN PARTIES
HEREBY WAIVE ANY RIGHT ANY OF THEM MAY HAVE TO CLAIM OR RECOVER IN ANY
LITIGATION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OR ANY
DAMAGES OTHER THAN, OR IN ADDITION TO, ACTUAL DAMAGES. THE BORROWERS AND THE
OTHER LOAN PARTIES CERTIFY THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF THE
AGENT OR ANY LENDER HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT IT WOULD NOT,
IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER. THIS WAIVER
CONSTITUTES A MATERIAL INDUCEMENT FOR THE AGENTS AND THE LENDERS TO ENTER INTO
THIS AGREEMENT AND PROVIDE THE CREDITS HEREUNDER. THE BORROWERS AND THE OTHER
LOAN PARTIES AGREE THAT ANY SUIT FOR THE ENFORCEMENT OF THIS AGREEMENT OR ANY OF
THE OTHER LENDER AGREEMENTS MAY BE BROUGHT IN THE COURTS OF THE COMMONWEALTH OF
MASSACHUSETTS OR ANY FEDERAL COURT SITTING THEREIN AND CONSENTS TO THE
NONEXCLUSIVE JURISDICTION OF SUCH COURT AND SERVICE OF PROCESS IN ANY SUCH SUIT
BEING MADE UPON BORROWERS AND THE OTHER LOAN PARTIES BY MAIL AT THE ADDRESS SET
FORTH IN SECTION 14.1. THE BORROWERS AND THE OTHER LOAN PARTIES HEREBY WAIVE ANY
OBJECTION THAT ANY OF THEM MAY NOW OR HEREAFTER HAVE TO THE VENUE OF ANY SUCH
SUIT OR ANY SUCH COURT OR THAT SUCH SUIT IS BROUGHT IN AN INCONVENIENT FORUM.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the Borrowers, the other Loan Parties, the
Administrative Agent and the Lenders have caused this Credit Agreement to be
executed by their duly authorized officers as of the date set forth above.
BORROWERS:
UNO ACQUISITION CORP.
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
UNO RESTAURANT CORPORATION
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
UNO RESTAURANTS, INC.
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
SL PROPERTIES, INC.
(For purposes of Section 2.15)
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
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GUARANTORS:
UNO RESTAURANT HOLDINGS CORPORATION
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
UNO FOODS INC.
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
PIZZERIA UNO CORPORATION
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
URC HOLDING COMPANY, INC.
By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
SL PROPERTIES, INC.
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By: /s/ Robert M. Vincent
-------------------------------------
Name: Robert M. Vincent
Title: Executive Vice President-Finance
FLEET NATIONAL BANK, as Administrative
Agent and Lender
By: /s/ Elise M. Russo
-------------------------------------
Name: Elise M. Russo
Title: Senior Vice President
SUNTRUST BANK, as Syndication Agent
and Lender
By: /s/ Vipul H. Patel
-------------------------------------
Name: Vipul H. Patel
Title: Director
ORIX FINANCIAL SERVICES, INC.
By: /s/ R. Terry Standifer
-------------------------------------
Name: R. Terry Standifer
Title: Vice President
THE PROVIDENT BANK
By: /s/ Christopher B. Gribble
-------------------------------------
Name: Christopher B. Gribble
Title: Vice President
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TEXTRON FINANCIAL CORPORATION
By: /s/ Traci L. Schwartz
-------------------------------------
Name: Traci L. Schwarz
Title: Vice President
SEMINOLE FUNDING LLC
By: /s/ Kelly C. Walker
-------------------------------------
Name: Kelly C. Walker
Title: Vice President
HELLER FINANCIAL LEASING, INC.
By: /s/ John T. Smith
-------------------------------------
Name: John T. Smith
Title: Vice President
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