Exhibit 10(a)
$300,000,000
CREDIT AGREEMENT
dated as of
October 29, 1999
among
DARDEN RESTAURANTS, INC.
The Banks Listed Herein
SUNTRUST BANK, CENTRAL FLORIDA, N.A
as Syndication Agent
FIRST UNION NATIONAL BANK
as Documentation Agent
BANK OF AMERICA, N.A
As Co-Agent
and
WACHOVIA BANK, N.A.
as Administrative Agent
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WACHOVIA SECURITIES, INC.,
as Lead Arranger
TABLE OF CONTENTS
Page
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions..............................................1
SECTION 1.02 Accounting Terms and Determinations.....................12
SECTION 1.03 Use of Defined Terms....................................13
SECTION 1.04 Terminology.............................................13
SECTION 1.05 References..............................................13
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments to Make Syndicated Loans....................13
SECTION 2.02 Method of Borrowing Syndicated Loans....................14
SECTION 2.03 Money Market Loans......................................15
SECTION 2.04 Notes...................................................18
SECTION 2.05 Maturity of Loans.......................................19
SECTION 2.06 Interest Rates..........................................19
SECTION 2.07 Fees....................................................21
SECTION 2.08 Optional Termination or Reduction of Commitments........22
SECTION 2.09 Mandatory Reduction and Termination of Commitments......22
SECTION 2.10 Optional Prepayments....................................22
SECTION 2.11 Mandatory Prepayments...................................23
SECTION 2.12 General Provisions as to Payments.......................23
SECTION 2.13 Computation of Interest and Fees........................24
ARTICLE III.
CONDITIONS TO BORROWINGS
SECTION 3.01 Conditions to First Borrowing...........................24
SECTION 3.02 Conditions to All Borrowings............................26
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
SECTION 4.01 Organization; Power; Qualification......................26
SECTION 4.02 Subsidiaries and Capitalization.........................26
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SECTION 4.03 Authorization of Agreement, Loan Documents and
Borrowing.............................................27
SECTION 4.04 Compliance of Agreement, Loan Documents and Borrowing
with Law, Etc.........................................27
SECTION 4.05 Compliance with Law; Governmental Approvals.............27
SECTION 4.06 Tax Returns and Payments................................28
SECTION 4.07 Intellectual Property Matters...........................28
SECTION 4.08 Environmental Matters...................................28
SECTION 4.09 ERISA...................................................28
SECTION 4.10 Margin Stock............................................29
SECTION 4.11 Government Regulation...................................29
SECTION 4.12 Financial Statements....................................29
SECTION 4.13 Title to Properties.....................................29
SECTION 4.14 Debt and Liens..........................................30
SECTION 4.15 Litigation..............................................30
SECTION 4.16 Absence of Defaults.....................................30
SECTION 4.17 Accuracy and Completeness of Information................30
SECTION 4.18 Insolvency..............................................30
SECTION 4.19 Insurance...............................................31
SECTION 4.20 Compliance with Year 2000 Plan..........................31
ARTICLE V.
COVENANTS
SECTION 5.01 Financial Information and Notices.......................31
SECTION 5.02 Preservation of Corporate Existence and Related Matters.34
SECTION 5.03 Maintenance of Property.................................34
SECTION 5.04 Insurance...............................................34
SECTION 5.05 Accounting Methods and Financial Records................34
SECTION 5.06 Payment and Performance of Obligations..................34
SECTION 5.07 Compliance with Laws, Approvals and Agreements..........35
SECTION 5.08 Compliance with ERISA...................................35
SECTION 5.09 Conduct of Business.....................................35
SECTION 5.10 Loans or Advances.......................................35
SECTION 5.11 Investments.............................................35
SECTION 5.12 Visits and Inspections..................................35
SECTION 5.13 Limits on Liens.........................................36
SECTION 5.14 Limitations on Mergers, Liquidations and Sales
of Assets.............................................37
SECTION 5.15 Certain Accounting Changes..............................37
SECTION 5.16 Change in Fiscal Year...................................37
SECTION 5.17 Restrictive Agreements..................................37
SECTION 5.18 Acquisitions............................................37
SECTION 5.19 Y2K Plan................................................38
SECTION 5.20 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization........................................38
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ARTICLE VI.
DEFAULTS
SECTION 6.01 Events of Default.......................................38
SECTION 6.02 Notice of Default.......................................40
ARTICLE VII.
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment, Powers and Immunities......................40
SECTION 7.02 Reliance by Administrative Agent........................41
SECTION 7.03 Defaults................................................41
SECTION 7.04 Rights of Administrative Agent as a Bank................41
SECTION 7.05 Indemnification.........................................42
SECTION 7.06 CONSEQUENTIAL DAMAGES...................................42
SECTION 7.07 Payee of Note Treated as Owner..........................42
SECTION 7.08 Non-Reliance on Administrative Agent and Other Banks....42
SECTION 7.09 Failure to Act..........................................43
SECTION 7.10 Resignation or Removal of Administrative Agent..........43
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01 Basis for Determining Interest Rate Inadequate or
Unfair................................................43
SECTION 8.02 Illegality..............................................44
SECTION 8.03 Increased Cost and Reduced Return.......................44
SECTION 8.04 Base Rate Loans or Other Fixed Rate Loans Substituted
for Affected Fixed Rate Loans.........................46
SECTION 8.05 Compensation............................................46
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices.................................................47
SECTION 9.02 No Waivers..............................................47
SECTION 9.03 Expenses; Documentary Taxes; Indemnification............47
SECTION 9.04 Setoffs; Sharing of Set-Offs............................48
SECTION 9.05 Amendments and Waivers..................................49
SECTION 9.06 Margin Stock Collateral.................................49
SECTION 9.07 Successors and Assigns..................................49
SECTION 9.08 Confidentiality.........................................51
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SECTION 9.09 Representation by Banks.................................52
SECTION 9.10 Obligations Several.....................................52
SECTION 9.11 Survival of Certain Obligations.........................52
SECTION 9.12 Georgia Law.............................................52
SECTION 9.13 Severability............................................52
SECTION 9.14 Interest................................................52
SECTION 9.15 Interpretation..........................................52
SECTION 9.16 Waiver of Jury Trial; Consent to Jurisdiction...........52
SECTION 9.17 Counterparts............................................53
EXHIBIT A......... Form of Syndicated Note
EXHIBIT B......... Form of Money Market Note
EXHIBIT C......... Form of Opinion of Counsel for the Borrower
EXHIBIT D......... Form of Opinion of Special Counsel for the
Administrative Agent
EXHIBIT E......... Form of Money Market Quote Request
EXHIBIT F......... Form of Money Market Quote
EXHIBIT G......... Form of Closing Certificate
EXHIBIT H......... Form of Secretary's Certificate
EXHIBIT I......... Form of Compliance Certificate
EXHIBIT J......... Form of Assignment and Acceptance
EXHIBIT K......... Form of Notice of Borrowing
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CREDIT AGREEMENT
AGREEMENT dated as of October 29, 1999 among DARDEN RESTAURANTS, INC., a
Florida corporation, the BANKS listed on the signature pages hereof, SUNTRUST
BANK, CENTRAL FLORIDA, N.A. as Syndication Agent, FIRST UNION NATIONAL BANK as
Documentation Agent, BANK OF AMERICA, N.A., as Co-Agent, and WACHOVIA BANK,
N.A., as Administrative Agent.
The parties hereto agree as follows:
ARTICLE I.
DEFINITIONS
SECTION 1.01 Definitions. The terms as defined in this Section 1.01
shall, for all purposes of this Agreement and any amendment hereto (except as
herein otherwise expressly provided or unless the context otherwise requires),
have the meanings set forth herein:
"Acquisition" means any transaction pursuant to which the Borrower or any
of its Subsidiaries, directly or indirectly, in its own name or by or through a
nominee or an agent (a) acquires equity Securities (or warrants, options or
other rights to acquire such Securities) of any Person other than the Borrower
or any Person which is not then a Subsidiary of the Borrower, pursuant to a
solicitation of tenders therefor, or in one or more negotiated block, market or
other transactions not involving a tender offer, or a combination of any of the
foregoing, or (b) makes any Person a Subsidiary of the Borrower, or causes any
Person other than a Subsidiary to be merged into the Borrower or any of its
Subsidiaries, in any case pursuant to a merger, purchase of assets or any
reorganization providing for the delivery or issuance to the holders of such
Person's then outstanding Securities, in exchange for such Securities, of cash
or Securities of the Borrower or any of its Subsidiaries, or a combination
thereof, or (c) purchases all or substantially all of the business or assets of
any Person.
"Adjusted London Interbank Offered Rate" has the meaning set forth in
Section 2.06(c).
"Administrative Agent" means Wachovia Bank, N.A., a national banking
association organized under the laws of the United States of America, in its
capacity as Administrative Agent for the Banks hereunder, and its successors and
permitted assigns in such capacity.
"Affiliate" of any Person means (i) any other Person which directly, or
indirectly through one or more intermediaries, controls such Person, (ii) any
other Person which directly, or indirectly through one or more intermediaries,
is controlled by or is under common control with such Person, or (iii) any other
Person of which such Person owns, directly or indirectly, 20% or more of the
common stock or equivalent equity interests. As used herein, the term "control"
means possession, directly or indirectly, of the power to direct or cause the
direction of the management or policies of a Person, whether through the
ownership of voting securities, by contract or otherwise.
"Administrative Agent's Letter Agreement" means that certain letter
agreement, dated as of August 27, 1999 among the Borrower, the Administrative
Agent and the Lead Arranger relating to the structure of the Loans, and certain
fees from time to time payable by the Borrower
to the Administrative Agent and the Lead Arranger, together with all amendments
and modifications thereto.
"Agreement" means this Credit Agreement, together with all amendments and
supplements hereto.
"Applicable Facility Fee Rate" has the meaning set forth in Section
2.07(a).
"Applicable Law" means all applicable provisions of constitutions,
statutes, rules, regulations and orders of all Governmental Authorities and all
orders and decrees of all courts and arbitrators.
"Applicable Utilization Fee Rate" has the meaning set forth in Section
2.07(b).
"Applicable Margin" has the meaning set forth in Section 2.06(a).
"Assignee" has the meaning set forth in Section 9.07(c).
"Assignment and Acceptance" means an Assignment and Acceptance executed in
accordance with Section 9.07(c) in the form attached hereto as Exhibit J.
"Bank" means each bank listed on the signature pages hereof as having a
Commitment, and its successors and assigns.
"Base Rate" means for any Base Rate Loan for any day, the rate per annum
equal to the higher as of such day of (i) the Prime Rate, and (ii) one-half of
one percent above the Federal Funds Rate for such day. For purposes of
determining the Base Rate for any day, changes in the Prime Rate and the Federal
Funds Rate shall be effective on the date of each such change.
"Base Rate Loan" means a Loan that bears or is to bear interest at a rate
based upon the Base Rate.
"Borrower" means Darden Restaurants, Inc., a Florida corporation, and its
successors and permitted assigns.
"Borrowing" means a borrowing hereunder consisting of Loans made to the
Borrower at the same time by, in the case of a Syndicated Borrowing, the Banks,
or, in the case of a Money Market Borrowing, one or more of the Banks, in each
case pursuant to Article II. A Borrowing is a "Syndicated Borrowing" if such
Loans are Syndicated Loans or a "Money Market Borrowing" if such Loans are Money
Market Loans. A Borrowing is a "Base Rate Borrowing" if such Loans are Base Rate
Loans or a "Euro-Dollar Borrowing" if such Loans are Euro-Dollar Loans.
"Capital Lease" means a lease of any property (whether real, personal or
mixed) that should, in accordance with GAAP, appear on a Consolidated balance
sheet of the Borrower and its Subsidiaries as a liability in respect of such
lease.
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"Capital Stock" means any nonredeemable capital stock of the Borrower or
any Consolidated Subsidiary (to the extent issued to a Person other than the
Borrower), whether common or preferred.
"CERCLA" means the Comprehensive Environmental Response Compensation and
Liability Act, 42 U.S.C.ss.9601 et seq. and its implementing regulations and
amendments.
"Change of Law" shall have the meaning set forth in Section 8.02.
"Closing Certificate" has the meaning set forth in Section 3.01(e).
"Closing Date" means October 29, 1999.
"Code" means the Internal Revenue Code of 1986, as amended, or any
successor Federal tax code. Any reference to any provision of the Code shall
also be deemed to be a reference to any successor provision or provisions
thereof.
"Commitment" means, with respect to each Bank, (i) the amount set forth
opposite the name of such Bank on the signature pages hereof, or (ii) as to any
Bank which enters into an Assignment and Acceptance (whether as transferor Bank
or as Assignee thereunder), the amount of such Bank's Commitment after giving
effect to such Assignment and Acceptance, in each case as such amount may be
reduced from time to time pursuant to Sections 2.08.
"Consolidated" means, when used with reference to financial statements or
financial statement items of the Borrower and its Subsidiaries or any other
Person, such statements or items on a consolidated basis in accordance with
applicable principles of consolidation under GAAP.
"Consolidated Capitalized Lease Obligations" means, at any date of
determination, the aggregate obligation of the Borrower and its Subsidiaries
under Capital Leases.
"Consolidated Operating Lease Obligations" means, for any period of
determination, the aggregate lease and rental commitments of the Borrower and
its Subsidiaries, on a Consolidated basis, which are not classified as
Consolidated Capitalized Lease Obligations hereunder.
"Consolidated Subsidiary" means at any date any Subsidiary or other entity
the accounts of which, in accordance with GAAP, would be Consolidated with those
of the Borrower in its Consolidated financial statements as of such date.
"Consolidated Total Capitalization" means at any date the sum of (a)
Stockholders' Equity, plus (b) Consolidated Total Debt.
"Consolidated Total Debt" means, with respect to the Borrower and its
Subsidiaries at any date of determination, the sum of the following calculated
on a Consolidated basis in accordance with GAAP: (a) all liabilities,
obligations and indebtedness of such Person for borrowed money including but not
limited to obligations evidenced by bonds, debentures, notes or other similar
instruments, (b) all obligations of such Person to pay the deferred purchase
price of property or services except trade payables arising in the ordinary
course of business, (c) all Consolidated Capitalized Lease Obligations of such
Person, (d) all liabilities, obligations and
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indebtedness of any other Person secured by a Lien on any asset of the Borrower
or any of its Subsidiaries, (e) banker's acceptances issued for the account of
such Person, (f) the product of (i) 6.25 multiplied by (ii) the Consolidated
Operating Lease Obligations of such Person for the four Fiscal Quarters
immediately preceding such date (including the Fiscal Quarter ending on such
date), (g) all net obligations with respect to Hedging Agreements and (h) to the
extent not included in clauses (a) through (g), all guarantees and contingent
obligations of such Person in respect of any Consolidated Total Debt of any
other Person.
"Controlled Group" means all members of a controlled group of corporations
and all trades or businesses (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Debt Rating" means a public rating by the respective Rating Agencies of
the Borrower's Senior Debt. If any Rating Agency is not providing public ratings
of the Senior Debt, (a) the Administrative Agent with the consent of the
Required Banks may substitute another rating agency of national reputation for
such Rating Agency to provide a public rating of the Senior Debt, which
substituted rating agency shall be a "Rating Agency" within the meaning of the
definition of such term set forth in this Section, or (b) if no other rating
agency of national reputation is providing public ratings of the Senior Debt,
the Administrative Agent may request that the Borrower, at the Borrower's
expense, obtain from such Rating Agency a private credit rating for the Senior
Debt, and such private credit rating shall be such Rating Agency's Debt Rating.
Upon receipt of such request, the Borrower shall use its best efforts to obtain
as promptly as practicable from such Rating Agency (or, if such Rating Agency
declines to provide a private credit rating, from another rating agency of
national reputation approved by the Administrative Agent with the consent of the
Required Banks) a private credit rating for such purpose. If the Borrower does
not have any Senior Debt, the Debt Rating shall be determined on the basis of a
credit rating, made as aforesaid, of the Borrower's obligations under this
Agreement and the Notes. In the event another rating agency of national
reputation is substituted for any Rating Agency, for purposes of determining the
Debt Rating of such substitute Rating Agency, reference shall be made to the
public debt rating levels of such substitute Rating Agency that are most nearly
comparable to the public debt rating levels of the Rating Agency for which such
substitute Rating Agency has been substituted.
"Default" means any condition or event which constitutes an Event of
Default or which with the giving of notice or lapse of time or both would,
unless cured or waived in writing, become an Event of Default.
"Default Rate" means, with respect to any Loan, on any day, the sum of 2%
plus the then highest interest rate (including the Applicable Margin) which may
be applicable to any Loans hereunder (irrespective of whether any such type of
Loans are actually outstanding hereunder).
"DOL" means the United States Department of Labor and any successor Federal
agency having similar powers.
"Dollars" or "$" means dollars in lawful currency of the United States of
America.
"Domestic Business Day" means any day except a Saturday, Sunday or other
day on which commercial banks in Georgia are authorized or required by law to
close.
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"Duff & Phelps" means Duff & Phelps Credit Rating Co.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, regulations, ordinances, rules, judgments, orders, decrees,
permits, concessions, grants, franchises, licenses, agreements or other
governmental restrictions relating to the environment or to emissions,
discharges or releases of pollutants, contaminants, petroleum or petroleum
products, chemicals or industrial, toxic or hazardous substances or wastes into
the environment, including, without limitation, ambient air, surface water,
groundwater or land, or otherwise relating to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling of
pollutants, contaminants, petroleum or petroleum products, chemicals or
industrial, toxic or hazardous substances or wastes or the clean-up or other
remediation thereof.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, or any successor law. Any reference to any provision
of ERISA shall also be deemed to be a reference to any successor provision or
provisions thereof.
"Euro-Dollar Business Day" means any Domestic Business Day on which
dealings in Dollar deposits are carried out in the London interbank market.
"Euro-Dollar Loan" means a Loan that bears or is to bear interest at a rate
based upon the London Interbank Offered Rate.
"Euro-Dollar Reserve Percentage" has the meaning set forth in Section
2.06(c).
"Event of Default" has the meaning set forth in Section 6.01. "Facility Fee
Payment Date" means each March 31, June 30, September 30 and December 31.
"Federal Funds Rate" means, for any day, the rate per annum (rounded
upward, if necessary, to the next higher 1/100th of 1%) equal to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Domestic Business Day
next succeeding such day, provided that (i) if the day for which such rate is to
be determined is not a Domestic Business Day, the Federal Funds Rate for such
day shall be such rate on such transactions on the next preceding Domestic
Business Day as so published on the next succeeding Domestic Business Day, and
(ii) if such rate is not so published for any day, the Federal Funds Rate for
such day shall be the average rate charged to Wachovia on such day on such
transactions as determined by the Administrative Agent.
"Fiscal Quarter" means any fiscal quarter of the Borrower.
"Fiscal Year" means any fiscal year of the Borrower.
"GAAP" means generally accepted accounting principles applied on a basis
consistent with those which, in accordance with Section 1.02, are to be used in
making the calculations for purposes of determining compliance with the terms of
this Agreement.
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"Governmental Approvals" means all authorizations, consents, approvals,
licenses and exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
"Governmental Authority" means any nation, province, state or political
subdivision thereof, and any government or any Person exercising executive,
legislative, regulatory or administrative functions of or pertaining to
government, and any corporation or other entity owned or controlled, through
stock or capital ownership or otherwise, by any of the foregoing. The term
"Governmental Authority" shall include, without limitation, the IRS, the DOL and
any governmental authority, central bank or comparable agency charged with the
interpretation or administration of Applicable Laws.
"Hazardous Materials" includes, without limitation, (a) solid or hazardous
waste, as defined in the Resource Conservation and Recovery Act of 1980, 42
U.S.C. ss.6901 et seq. and its implementing regulations and amendments, or in
any applicable state or local law or regulation, (b) any "hazardous substance",
"pollutant" or "contaminant", as defined in CERCLA, or in any applicable state
or local law or regulation, (c) gasoline, or any other petroleum product or
by-product, including crude oil or any fraction thereof, (d) toxic substances,
as defined in the Toxic Substances Control Act of 1976, or in any applicable
state or local law or regulation and (e) insecticides, fungicides, or
rodenticides, as defined in the Federal Insecticide, Fungicide, and Rodenticide
Act of 1975, or in any applicable state or local law or regulation, as each such
Act, statute or regulation may be amended from time to time.
"Hedging Agreement" means any agreement with respect to an interest rate
swap, collar, cap, floor or a forward rate agreement or other agreement
regarding the hedging of interest rate risk exposure executed in connection with
hedging the interest rate exposure of the Borrower and any confirming letter
executed pursuant to such hedging agreement, all as amended or supplemented from
time to time.
"Interest Period" means: (1) with respect to each Euro-Dollar Borrowing,
the period commencing on the date of such Borrowing and ending on the
numerically corresponding day in the first, second, third or sixth month
thereafter, as the Borrower may elect in the applicable Notice of Borrowing;
provided that:
(a) any Interest Period (subject to clause (c) below) which would
otherwise end on a day which is not a Euro-Dollar Business Day shall
be extended to the next succeeding Euro-Dollar Business Day unless
such Euro-Dollar Business Day falls in another calendar month, in
which case such Interest Period shall end on the next preceding
Euro-Dollar Business Day;
(b) any Interest Period which begins on the last Euro-Dollar
Business Day of a calendar month (or on a day for which there is no
numerically corresponding day in the appropriate subsequent calendar
month) shall, subject to clause (c) below, end on the last Euro-Dollar
Business Day of the appropriate subsequent calendar month; and
(c) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(2) with respect to each Base Rate Borrowing, the period commencing on the date
of such Borrowing and ending thirty (30) days thereafter; provided that:
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(a) any Interest Period (subject to clause (b) below) which would
otherwise end on a day which is not a Domestic Business Day shall be
extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
(3) with respect to each Money Market Borrowing, the period commencing on the
date of such Borrowing and ending seven (7) to one hundred eighty (180) days
thereafter, as the Borrower may indicate in the applicable Money Market Quote
Request; provided that:
(a) any Interest Period (subject to clause (b) below) which
would otherwise end on a day which is not a Domestic Business Day shall
be extended to the next succeeding Domestic Business Day; and
(b) no Interest Period may be selected which begins before the
Termination Date and would otherwise end after the Termination Date.
"Investment" means any investment in any Person, whether by means of
purchase or acquisition of obligations or securities of such Person, capital
contribution to such Person, loan or advance to such Person, making of a time
deposit with such Person, Guarantee or assumption of any obligation of such
Person or otherwise.
"Investment Policy" means the written investment policy of the Borrower, as
approved by the Board of Directors of the Borrower and in effect from time to
time, a copy of which (together with any changes thereto) shall be delivered by
the Borrower to the Agent.
"IRS" means the United States Internal Revenue Service and any successor
Federal agency having similar powers.
"Lead Arranger" means Wachovia Securities, Inc. and its successors.
"Lending Office" means, as to each Bank, its office located at its address
set forth on the signature pages hereof (or identified on the signature pages
hereof as its Lending Office) or such other office as such Bank may hereafter
designate as its Lending Office by notice to the Borrower and the Administrative
Agent.
"Lien" means, with respect to any asset, any mortgage, deed to secure debt,
deed of trust, lien, pledge, charge, security interest, security title,
preferential arrangement which has the practical effect of constituting a
security interest or encumbrance, servitude or encumbrance of any kind in
respect of such asset. For the purposes of this Agreement, the Borrower or any
Subsidiary shall be deemed to own subject to a Lien any asset which it has
acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement
relating to such asset.
"Loan" means a Syndicated Loan or a Money Market Loan and "Loans" means
Syndicated Loans or Money Market Loans, or any or all of them, as the context
shall require.
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"Loan Documents" means this Agreement, the Notes, any other document
evidencing, relating to or securing the Loans, and any other document or
instrument delivered from time to time in connection with this Agreement, the
Notes or the Loans, as such documents and instruments may be amended or
supplemented from time to time.
"London Interbank Offered Rate" has the meaning set forth in Section
2.06(c).
"Margin Stock" means "margin stock" as defined in Regulation T, U or X of
the Board of Governors of the Federal Reserve System, as in effect from time to
time, together with all official rulings and interpretations issued thereunder.
"Material Adverse Effect" means, with respect to any event, act, condition
or occurrence of whatever nature (including any adverse determination in any
litigation, arbitration, or governmental investigation or proceeding), whether
singly or in conjunction with any other event or events, act or acts, condition
or conditions, occurrence or occurrences, whether or not related, a material
adverse change in, or a material adverse effect upon, any of (a) the financial
condition, operations, business, properties or prospects of the Borrower and its
Consolidated Subsidiaries taken as a whole, (b) the rights and remedies of the
Administrative Agent or the Banks under the Loan Documents, or the ability of
the Borrower to perform its obligations under the Loan Documents to which it is
a party, as applicable, or (c) the legality, validity or enforceability of any
Loan Document.
"Material Subsidiary" means, at any time, based on the Borrower's
Consolidated balance sheet for its most recently ended Fiscal Quarter:
(a) any Subsidiary, whether now owned or hereafter formed or acquired,
whose total assets at any time equal or exceed ten percent (10%) of the total
assets of the Borrower and its Subsidiaries as shown on the Borrower's
Consolidated balance sheet for its most recent Fiscal Quarter (any such
Subsidiary being referred to in this definition as a "First Tier Subsidiary"),
and
(b) if the aggregate total revenues and the aggregate total assets,
respectively, of all First Tier Subsidiaries shall not equal or exceed
seventy-five percent (75%) of the aggregate total revenues, or of the aggregate
total assets, respectively, of the Borrower and its Subsidiaries, then such
additional Subsidiaries (each a "Second Tier Subsidiary") as shall be required
so that the aggregate total revenues and the aggregate total assets,
respectively, of all First Tier Subsidiaries and Second Tier Subsidiaries shall
equal or exceed (i) seventy-five percent (75%) of the total revenues of the
Borrower and its Subsidiaries and (ii) seventy-five percent (75%) of the total
assets of the Borrower and its Subsidiaries, each as shown on such Consolidated
balance sheet; provided, that the determination of whether a Second Tier
Subsidiary shall be a Material Subsidiary shall be based upon the percentage of
the aggregate total assets of the Borrower and its Subsidiaries represented by
the total assets of such Second Tier Subsidiary, with Second Tier Subsidiaries
with the highest such percentage first being considered as Material
Subsidiaries.
"Money Market Loan" means a Loan that bears or is to bear interest at a
Money Market Rate.
"Money Market Notes" means promissory notes of the Borrower, substantially
in the form of Exhibit B hereto, evidencing the obligation of the Borrower to
repay the Money Market
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Loans, together with all amendments, consolidations, modifications,
renewals and supplements thereto and "Money Market Note" means any one of such
Money Market Notes.
"Money Market Quote" means an offer by a Bank to make a Money Market Loan
in accordance with Section 2.03(c).
"Money Market Quote Request" has the meaning set forth in Section 2.03(b).
"Money Market Rate" has the meaning set forth in Section 2.03(c)(ii)(C).
"Moody's" means Moody's Investors Service, Inc.
"Multiemployer Plan" shall have the meaning set forth in Section 4001(a)(3)
of ERISA.
"Note" means a Syndicated Note or a Money Market Note and "Notes" means
Syndicated Notes or Money Market Notes, or any or all of them, as the context
shall require.
"Notice of Borrowing" has the meaning set forth in Section 2.02(a).
"Officer's Certificate" has the meaning set forth in Section 3.01(f).
"Officer's Compliance Certificate" has the meaning set forth in Section
5.01(b).
"Participant" has the meaning set forth in Section 9.07(b).
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
succeeding to any or all of its functions under ERISA.
"Permitted Acquisition" means any Acquisition (a) which is of a Person
engaged in the same, similar or complementary line or lines of business as the
Borrower or any Consolidated Subsidiaries or that allows the Borrower to achieve
vertical integration, and (b) which has been approved by the Board of Directors
of the Person to be acquired in connection with such Acquisition.
"Permitted Investments" means the aggregate amount of Investments made by
the Borrower and its Subsidiaries pursuant to Section 5.11(iii).
"Permitted Loans and Advances" means the aggregate amount of loans and
advances made by the Borrower and its Subsidiaries pursuant to Section 5.10.
"Permitted Transfers" means the aggregate amount of assets sold by the
Borrower and its Subsidiaries pursuant to Section 5.14(a).
"Person" means an individual, a corporation, a limited liability company, a
partnership (including without limitation, a joint venture), an unincorporated
association, a trust or any other entity or organization, including, but not
limited to, a government or political subdivision or an agency or
instrumentality thereof.
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"Plan" means at any time an employee pension benefit plan which is covered
by Title IV of ERISA or subject to the minimum funding standards under Section
412 of the Code and is either (i) maintained by a member of the Controlled Group
for employees of any member of the Controlled Group or (ii) maintained pursuant
to a collective bargaining agreement or any other arrangement under which more
than one employer makes contributions and to which a member of the Controlled
Group is then making or accruing an obligation to make contributions or has
within the preceding five (5) plan years made contributions.
"Pricing Level" means the Pricing Level corresponding to the applicable
Debt Rating as set forth below:
Pricing Level Debt Rating
------------- -----------
Level I higher than BBB+/Baa1/BBB+
Level II equal to BBB+/Baa1/BBB+
Level III equal to BBB/Baa2/BBB
Level IV lower than BBB/Baa2/BBB or not rated
In the event that the Debt Ratings issued by S&P, Moody's and Duff & Phelps do
not correspond to the same Pricing Level and (i) at least two of the three Debt
Ratings issued by Moody's, S&P and Duff & Phelps correspond to the same Pricing
Level, then the Debt Ratings corresponding to the same Pricing Level shall be
the Debt Ratings for the purposes of this definition or (ii) each Debt Rating
corresponds to a different Pricing Level, then the Debt Ratings that correspond
to the lowest and highest Pricing Levels shall be disregarded and the remaining
Debt Rating shall be the Debt Rating for the purposes of this definition.
Adjustments, if any, in the Pricing Level shall be made by the Administrative
Agent and shall be effective on the fifth (5th) Domestic Business Day after the
earlier of (i) receipt by the Administrative Agent of notice of such change in
Debt Rating or (ii) knowledge of the Administrative Agent of such change in Debt
Rating. The Pricing Level as of the Closing Date is Level II.
"Prime Rate" refers to that interest rate so denominated and set by
Wachovia from time to time as an interest rate basis for borrowings. The Prime
Rate is but one of several interest rate bases used by Wachovia. Wachovia lends
at interest rates above and below the Prime Rate.
"Priority Debt" means (a) any Consolidated Total Debt of the Borrower
secured by any Lien permitted pursuant to clause (k) of Section 5.13, and (b)
any Consolidated Total Debt of any Subsidiary; provided, however, that Priority
Debt shall not include (i) any Consolidated Total Debt owed by any Subsidiary to
the Borrower or any Wholly Owned Subsidiary, (ii) any Consolidated Total Debt
incurred to refinance any Consolidated Total Debt of any Subsidiary outstanding
on the Closing Date to the extent the amount of Consolidated Total Debt so
incurred is not in excess of the amount of Consolidated Total Debt refinanced,
(iii) Consolidated Total Debt consisting of that certain $700,000,000 aggregate
indebtedness of GMRI, Inc., a Florida corporation, to Darden Realty, Inc., a
Maryland corporation, incurred on January 28, 1999, and (iv) any amounts which
would otherwise be included in Consolidated Total Debt in respect of any
Subsidiary under clause (f) of the definition of Consolidated Total Debt set
forth in this Section.
-10-
"Quotation Date" has the meaning set forth in Section 2.03(b)(i).
"Rating Agencies" means Moody's, S&P and Duff & Phelps, and any rating
agency substituted for any of the foregoing pursuant to the provisions set forth
in the definition of the term "Debt Rating".
"Redeemable Preferred Stock" of any Person means any preferred stock issued
by such Person which is at any time prior to the Termination Date either (i)
mandatorily redeemable (by sinking fund or similar payments or otherwise) or
(ii) redeemable at the option of the holder thereof.
"Related Fund" means, with respect to any Bank that is a fund that invests
in commercial loans, any other fund that invests in commercial loans and is
managed or advised by the same investment advisor as such Bank or by an
Affiliate of such investment advisor.
"Required Banks" means at any time Banks having at least 66 2/3% of the
aggregate amount of the Commitments or, if the Commitments are no longer in
effect, Banks holding at least 66 2/3% of the aggregate outstanding principal
amount of the Notes.
"S&P" means Standard & Poor's Ratings Services, a division of The
McGraw-Hill Companies, Inc.
"SEC" means the Securities and Exchange Commission or any successor agency.
"Security" has the meaning assigned to such term in Section 2(l) of the
Securities Act of 1933, as amended.
"Senior Debt" means the long-term, senior, unsecured indebtedness of the
Borrower the creditworthiness of which is not supported through defeasance,
guarantees, credit enhancement or otherwise.
"Stockholders' Equity" means, at any time, the shareholders' equity of the
Borrower and its Consolidated Subsidiaries, as set forth or reflected on the
most recent Consolidated balance sheet of the Borrower and its Consolidated
Subsidiaries prepared in accordance with GAAP, but excluding any Redeemable
Preferred Stock of the Borrower or any of its Consolidated Subsidiaries.
Shareholders' equity generally would include, but not be limited to (i) the par
or stated value of all outstanding Capital Stock, (ii) capital surplus, (iii)
retained earnings, and (iv) various deductions such as (A) purchases of treasury
stock, (B) valuation allowances, (C) receivables due from an employee stock
ownership plan, (D) employee stock ownership plan debt guarantees, and (E)
translation adjustments for foreign currency transactions.
"Syndicated Loan" means a Base Rate Loan or a Euro-Dollar Loan and
Syndicated Loans means Base Rate Loans or Euro-Dollar Loans, or any or all of
them, as the context shall require.
"Subsidiary" means any corporation or other entity of which securities or
other ownership interests having ordinary voting power to elect a majority of
the board of directors or other persons performing similar functions are at the
time directly or indirectly owned by the Borrower.
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"Syndicated Notes" means promissory notes of the Borrower, substantially in
the form of Exhibit A hereto, evidencing the obligation of the Borrower to repay
the Syndicated Loans, together with all amendments, consolidations,
modifications, renewals and supplements thereto and Syndicated "Note" means any
one of such Syndicated Notes.
"Taxes" has the meaning set forth in Section 2.12(c).
"Termination Date" means October 29, 2004.
"Test Amount" means, on any day, an amount equal to 30% of the consolidated
total assets of the Borrower and its Consolidated Subsidiaries (determined in
accordance with GAAP) as of the last day of the Fiscal Quarter most recently
ended prior to such day for which financial statements have been prepared and
delivered to the Banks.
"Total Commitments" means, at any date, an amount equal to the aggregate
amount of the Commitments of all the Banks at such time.
"Total Unused Commitments" means at any date, an amount equal to the
aggregate amount of the Unused Commitments of all the Banks at such time.
"Transferee" has the meaning set forth in Section 9.07(d).
"Unused Commitment" means at any date, with respect to any Bank, an amount
equal to its Commitment less the aggregate outstanding principal amount of its
Loans.
"Wachovia" means Wachovia Bank, N.A., a national banking association and
its successors.
"Wholly Owned Subsidiary" means any Subsidiary all of the shares of capital
stock or other ownership interests of which (except directors' qualifying
shares) are at the time directly or indirectly owned by the Borrower.
"Y2K Plan" has the meaning set forth in Section 4.20.
"Year 2000 Compliant and Ready" as used herein means that (a) the
Borrower's and its Subsidiaries' hardware and critical software systems with
respect to the operation of its business and its general business plan will: (i)
handle date information involving any and all dates during the period extending
6 months before until 6 months after January 1, 2000, including accepting input,
providing output and performing date calculations in whole or in part; (ii)
operate, accurately without interruption on and in respect of any and all dates
during the period extending 6 months before until 6 months after January 1, 2000
and without any material change in performance; (iii) store and provide date
input information without creating any ambiguity as to the century, and (b) the
Borrower has developed alternative plans to ensure business continuity in the
event of the failure of any or all of items (i) through (iii) above.
SECTION 1.02 Accounting Terms and Determinations. Unless otherwise
specified herein, all terms of an accounting character used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared in
accordance with GAAP, applied on a basis consistent
-12-
(except for changes concurred in by the Borrower's independent public
accountants or otherwise required by a change in GAAP) with the most recent
audited Consolidated financial statements of the Borrower and its Consolidated
Subsidiaries delivered to the Banks, unless with respect to any such change
concurred in by the Borrower's independent public accountants or required by
GAAP, in determining compliance with any of the provisions of this Agreement or
any of the other Loan Documents: (i) the Borrower shall have objected to
determining such compliance on such basis at the time of delivery of such
financial statements, or (ii) the Required Banks shall so object in writing
within thirty (30) days after the delivery of such financial statements, in
either of which events such calculations shall be made on a basis consistent
with those used in the preparation of the latest financial statements as to
which such objection shall not have been made (which, if objection is made in
respect of the first financial statements delivered under Section 5.01(a)
hereof, shall mean the financial statements referred to in Section 4.12(a)).
SECTION 1.03 Use of Defined Terms. All terms defined in this Agreement
shall have the same meanings when used in any of the other Loan Documents,
unless otherwise defined therein or unless the context shall otherwise require.
SECTION 1.04 Terminology. All personal pronouns used in this
Agreement, whether used in the masculine, feminine or neuter gender, shall
include all other genders; the singular shall include the plural and the plural
shall include the singular. Titles of Articles and Sections in this Agreement
are for convenience only, and neither limit nor amplify the provisions of this
Agreement.
SECTION 1.05 References. Unless otherwise indicated, references in
this Agreement to "Articles", "Exhibits", "Schedules", and "Sections" are
references to articles, exhibits, schedules and sections hereof.
ARTICLE II.
THE CREDITS
SECTION 2.01 Commitments to Make Syndicated Loans. Each Bank severally
agrees, on the terms and conditions set forth herein, to make Syndicated Loans
to the Borrower from time to time before the Termination Date; provided that,
immediately after each such Syndicated Loan is made, the aggregate outstanding
principal amount of Syndicated Loans by such Bank shall not exceed the amount of
its Commitment, provided further that the aggregate principal amount of all
Syndicated Loans, together with the aggregate principal amount of all Money
Market Loans, at any one time outstanding shall not exceed the aggregate amount
of the Commitments of all of the Banks at such time. Each Euro-Dollar Borrowing
under this Section shall be in an aggregate principal amount of $5,000,000 or
any larger multiple of $1,000,000 and each Base Rate Borrowing under this
Section shall be in an aggregate principal amount of $5,000,000 or any larger
multiple of $500,000 (except that any such Syndicated Borrowing may be in the
aggregate amount of the Unused Commitments) and each Syndicated Borrowing shall
be made from the several Banks ratably in proportion to their respective
Commitments. Within the foregoing limits, the Borrower may borrow under this
Section, repay or, to the extent permitted by Section 2.10, prepay Syndicated
Loans and reborrow under this Section at any time before the Termination Date.
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SECTION 2.02 Method of Borrowing Syndicated Loans.
(a) The Borrower shall give the Administrative Agent notice in the form
attached hereto as Exhibit K (a "Notice of Borrowing") prior to 11:00 a.m.
(Atlanta, Georgia time) on the Domestic Business Day of each Base Rate Borrowing
and at least three (3) Euro-Dollar Business Days before each Euro-Dollar
Borrowing, specifying:
(i) the date of such Syndicated Borrowing, which shall be a Domestic
Business Day in the case of a Base Rate Borrowing or a Euro-Dollar Business
Day in the case of a Euro-Dollar Borrowing,
(ii) the aggregate amount of such Syndicated Borrowing,
(iii) whether the Syndicated Loans comprising such Syndicated
Borrowing are to be Base Rate Loans or Euro-Dollar Loans, and
(iv) in the case of a Euro-Dollar Borrowing, the duration of the
Interest Period applicable thereto, subject to the provisions of the
definition of Interest Period.
(b) Upon receipt of a Notice of Borrowing, the Administrative Agent shall
promptly notify each Bank of the contents thereof and of such Bank's ratable
share of such Syndicated Borrowing and such Notice of Borrowing shall not
thereafter be revocable by the Borrower.
(c) Not later than 1:00 p.m. (Atlanta, Georgia time) on the date of each
Syndicated Borrowing, each Bank shall (except as provided in subsection (d) of
this Section) make available its ratable share of such Syndicated Borrowing, in
Federal or other funds immediately available in Atlanta, Georgia, to the
Administrative Agent at its address referred to in or specified pursuant to
Section 9.01. Unless the Administrative Agent determines that any applicable
condition specified in Article III has not been satisfied, the Administrative
Agent will make the funds so received from the Banks available to the Borrower
at the Administrative Agent's aforesaid address. Unless the Administrative Agent
receives notice from a Bank, at the Administrative Agent's address referred to
in Section 9.01, no later than 4:00 p.m. (local time at such address) on the
Domestic Business Day before the date of a Syndicated Borrowing stating that
such Bank will not make a Syndicated Loan in connection with such Syndicated
Borrowing, the Administrative Agent shall be entitled to assume that such Bank
will make a Syndicated Loan in connection with such Syndicated Borrowing and, in
reliance on such assumption, the Administrative Agent may (but shall not be
obligated to) make available such Bank's ratable share of such Syndicated
Borrowing to the Borrower for the account of such Bank. If the Administrative
Agent makes such Bank's ratable share available to the Borrower and such Bank
does not in fact make its ratable share of such Syndicated Borrowing available
on such date, the Administrative Agent shall be entitled to recover such Bank's
ratable share from such Bank or the Borrower (and for such purpose shall be
entitled to charge such amount to any account of the Borrower maintained with
the Administrative Agent), together with interest thereon for each day during
the period from the date of such Syndicated Borrowing until such sum shall be
paid in full at a rate per annum equal to the rate at which the Administrative
Agent determines that it
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obtained (or could have obtained) overnight Federal funds to cover such amount
for each such day during such period, provided that any such payment by the
Borrower of such Bank's ratable share and interest thereon shall be without
prejudice to any rights that the Borrower may have against such Bank. If such
Bank shall repay to the Administrative Agent such corresponding amount, such
amount so repaid shall constitute such Bank's Syndicated Loan included in such
Syndicated Borrowing for purposes of this Agreement.
(d) If any Bank makes a new Syndicated Loan hereunder on a day on which the
Borrower is to repay all or any part of an outstanding Syndicated Loan from such
Bank, such Bank shall apply the proceeds of its new Syndicated Loan to make such
repayment and only an amount equal to the difference (if any) between the amount
being borrowed and the amount being repaid shall be made available by such Bank
to the Administrative Agent as provided in subsection (c) of this Section, or
remitted by the Borrower to the Administrative Agent as provided in Section
2.12, as the case may be.
(e) Notwithstanding anything to the contrary contained in this Agreement,
no Euro-Dollar Borrowing may be made if there shall have occurred a Default,
which Default shall not have been cured or waived in writing.
(f) In the event that a Notice of Borrowing fails to specify whether the
Loans comprising such Borrowing are to be Base Rate Loans or Euro-Dollar Loans,
such Loans shall be made as Base Rate Loans. If the Borrower is otherwise
entitled under this Agreement to repay any Loans maturing at the end of an
Interest Period applicable thereto with the proceeds of a new Borrowing, and the
Borrower fails to repay such Loans using its own moneys and fails to give a
Notice of Borrowing in connection with such new Borrowing, a new Borrowing shall
be deemed to be made on the date such Loans mature in an amount equal to the
principal amount of the Loans so maturing, and the Loans comprising such new
Borrowing shall be Base Rate Loans.
(g) Notwithstanding anything to the contrary contained herein, (i) there
shall not be more than eight (8) different Interest Periods outstanding at the
same time (for which purpose Interest Periods described in different numbered
clauses of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous) and (ii) the proceeds
of any Base Rate Borrowing shall be applied first to repay the unpaid principal
amount of all Base Rate Loans (if any) outstanding immediately before such Base
Rate Borrowing.
SECTION 2.03 Money Market Loans.
(a) In addition to making Syndicated Borrowings, the Borrower may, as set
forth in this Section, request the Banks to make offers to make Money Market
Loans to the Borrower. The Banks may, but shall have no obligation to, make such
offers and the Borrower may, but shall have no obligation to, accept any such
offers in the manner set forth in this Section, provided that:
(i) there may be no more than eight (8) different Interest Periods for
both Syndicated Loans and Money Market Loans outstanding at the same time
(for which purpose Interest Periods described in different numbered clauses
of the definition of the term "Interest Period" shall be deemed to be
different Interest Periods even if they are coterminous); and
-15-
(ii) the aggregate principal amount of all Money Market Loans,
together with the aggregate principal amount of all Syndicated Loans, at
any one time outstanding shall not exceed the aggregate amount of the
Commitments of all of the Banks at such time.
(b) When the Borrower wishes to request offers to make Money Market Loans,
it shall give the Administrative Agent (which shall promptly notify the Banks)
notice substantially in the form of Exhibit E hereto (a "Money Market Quote
Request") so as to be received no later than 12:00 p.m. (Atlanta, Georgia time)
on the second (2nd) Domestic Business Day prior to the date of the Money Market
Borrowing proposed therein (or such other time and date as the Borrower and the
Administrative Agent, with the consent of the Required Banks, may agree),
specifying:
(i) the proposed date of such Money Market Borrowing, which shall be a
Domestic Business Day (the "Quotation Date");
(ii) the aggregate amount of such Money Market Borrowing, which shall
be at least $5,000,000 (and in larger multiples of $1,000,000) but shall
not cause the limits specified in Section 2.03(a) to be violated; and
(iii) the duration of the Interest Period applicable thereto, which
shall be seven (7) to one hundred eighty (180) days.
The Borrower may request offers to make Money Market Loans for up to three
(3) different Interest Periods in a single Money Market Quote Request; provided
that the request for each separate Interest Period shall be deemed to be a
separate Money Market Quote Request for a separate Money Market Borrowing.
Except as otherwise provided in the immediately preceding sentence, the Borrower
shall not deliver a Money Market Quote Request more frequently than once every
five (5) Domestic Business Days.
(c)
(i) Each Bank may, but shall have no obligation to, submit a Money
Market Quote containing an offer to make a Money Market Loan in response to
any Money Market Quote Request; provided that, if the Borrower's request
under Section 2.03(b) specified more than one Interest Period, such Bank
may, but shall have no obligation to, make a single submission containing a
separate offer for each such Interest Period and each such separate offer
shall be deemed to be a separate Money Market Quote. Each Money Market
Quote must be submitted to the Administrative Agent not later than 10:00
a.m. (Atlanta, Georgia time) on the Quotation Date (or such other time and
date as the Borrower and the Administrative Agent, with the consent of the
Required Banks, may agree); provided that as long as Wachovia is the
Administrative Agent any Money Market Quote submitted by Wachovia may be
submitted, and may only be submitted, if Wachovia notifies the Borrower of
the terms of the offer contained therein not later than 9:45 a.m. (Atlanta,
Georgia time) on the Quotation Date. Subject to Section 6.01, any Money
Market Quote so made shall be irrevocable except with the written consent
of the Administrative Agent given on the instructions of the Borrower.
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(ii) Each Money Market Quote shall be in substantially the form of
Exhibit F hereto and shall specify:
(A) the proposed date of the Money Market Borrowing and the
duration of the Interest Period therefor, which shall be seven (7) to
one hundred eighty (180) days;
(B) the maximum principal amount of the Money Market Loan which
the quoting Bank is willing to make for the applicable Interest
Period, which principal amount (x) may be greater than or less than
the Commitment of the quoting Bank, (y) shall be at least $5,000,000
or a larger multiple of $1,000,000, and (z) may not exceed the
principal amount of the Money Market Borrowing for which offers were
requested;
(C) the rate of interest per annum (rounded, if necessary, to the
nearest 1/100th of 1%) (the "Money Market Rate") offered for each such
Money Market Loan; and
(D) the identity of the quoting Bank.
Unless otherwise agreed by the Administrative Agent and the Borrower, no
Money Market Quote shall contain qualifying, conditional or similar
language or propose terms other than or in addition to those set forth in
the applicable Money Market Quote Request (other than setting forth the
maximum principal amount of the Money Market Loan which the quoting Bank is
willing to make for the applicable Interest Period).
(d) The Administrative Agent shall as promptly as practicable after the
Money Market Quote is submitted (but in any event not later than 10:30 a.m.
(Atlanta, Georgia time)) notify the Borrower of the terms (i) of any Money
Market Quote submitted by a Bank that is in accordance with Section 2.03(c) and
(ii) of any Money Market Quote that amends, modifies or is otherwise
inconsistent with a previous Money Market Quote submitted by such Bank with
respect to the same Money Market Quote Request. Any such subsequent Money Market
Quote shall be disregarded by the Administrative Agent unless such subsequent
Money Market Quote is submitted solely to correct a manifest error in such
former Money Market Quote. The Administrative Agent's notice to the Borrower
shall specify (A) the maximum aggregate principal amount of the Money Market
Borrowing for which offers have been received and (B) the maximum principal
amount and Money Market Rates so offered by each Bank (identifying the Bank that
made each Money Market Quote).
(e) Not later than 11:00 a.m. (Atlanta, Georgia time) on the Quotation Date
(or such other time and date as the Borrower and the Administrative Agent, with
the consent of the Required Banks, may agree), the Borrower shall notify the
Administrative Agent of its acceptance or nonacceptance of the offers so
notified to it pursuant to Section 2.03(d) and the Administrative Agent shall
promptly notify each Bank that has submitted a Money Market Quote. The Borrower
may decline to accept such offers for any reason. In the case of acceptance,
such notice shall specify the aggregate principal amount of offers for each
Interest Period that are accepted. The Borrower may accept any Money Market
Quote in whole or in part (provided that any Money Market Quote accepted in part
from any Bank shall not be less than
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the amount set forth in the Money Market Quote of such Bank as the minimum
principal amount of the Money Market Loan such Bank was willing to make for the
applicable Interest Period); provided that:
(i) the aggregate principal amount of each Money Market Borrowing may
not exceed the applicable amount set forth in the related Money Market
Quote Request;
(ii) the aggregate principal amount of each Money Market Borrowing
shall be at least $5,000,000 (and in larger multiples of $1,000,000) but
shall not cause the limits specified in Section 2.03(a) to be violated;
(iii) acceptance of offers may only be made in ascending order of
Money Market Rates; and
(iv) the Borrower may not accept any offer where the Administrative
Agent has advised the Borrower that such offer fails to comply with Section
2.03(c)(ii) or otherwise fails to comply with the requirements of this
Agreement (including, without limitation, Section 2.03(a)).
If offers are made by two or more Banks with the same Money Market Rates for a
greater aggregate principal amount than the amount in respect of which offers
are accepted for the related Interest Period, the principal amount of Money
Market Loans in respect of which such offers are accepted shall be allocated by
the Borrower among such Banks as nearly as possible (in multiples of $100,000)
in proportion to the aggregate principal amount of such offers. Determinations
by the Borrower of the amounts of Money Market Loans shall be conclusive in the
absence of manifest error.
(f) Any Bank whose offer to make any Money Market Loan has been accepted
shall, not later than 12:00 p.m. (Atlanta, Georgia time) on the Quotation Date,
make the amount of such Loan available to the Administrative Agent at its
address referred to in Section 9.01 in immediately available funds. The amount
so received by the Administrative Agent shall, subject to the terms and
conditions of this Agreement, be made available to the Borrower on such date by
depositing the same, in immediately available funds, in an account of such
Borrower maintained with Wachovia.
SECTION 2.04 Notes.
(a) The Syndicated Loans of each Bank shall be evidenced by a single
Syndicated Note payable to the order of such Bank for the account of its Lending
Office in an amount equal to the original principal amount of such Bank's
Commitment.
(b) The Money Market Loans made by any Bank to the Borrower shall be
evidenced by a single Money Market Note payable to the order of such Bank for
the account of its Lending Office.
(c) Upon receipt of each Bank's Notes pursuant to Section 3.01(b), the
Administrative Agent shall deliver such Notes to such Bank. Each Bank shall
record, and prior to any transfer of its Notes shall endorse on the schedule
forming a part thereof appropriate notations to evidence, the date, amount and
maturity of, and effective interest rate for, each Loan made by it,
- -18-
the date and amount of each payment of principal made by the Borrower with
respect thereto and whether, in the case of such Bank's Syndicated Note, such
Syndicated Loan is a Base Rate Loan or a Euro-Dollar Loan, and such schedule
shall constitute rebuttable presumptive evidence of the principal amount owing
and unpaid on such Bank's Notes; provided that the failure of any Bank to make,
or any error in making, any such recordation or endorsement shall not affect the
obligation of the Borrower hereunder or under the Notes or the ability of any
Bank to assign its Notes. Each Bank is hereby irrevocably authorized by the
Borrower so to endorse its Notes and to attach to and make a part of any Note a
continuation of any such schedule as and when required.
SECTION 2.05 Maturity of Loans. Each Loan included in any Borrowing
shall mature, and the principal amount thereof shall be due and payable, on the
last day of the Interest Period applicable to such Borrowing.
SECTION 2.06 Interest Rates.
(a) "Applicable Margin" shall be the rate per annum set forth below
opposite the applicable Pricing Level:
Pricing Level Base Rate Loans Euro-Dollar Loans
------------- --------------- -----------------
Level I 0% 0.425%
Level II 0% 0.475%
Level III 0% 0.575%
Level IV 0% 0.800%
Adjustments, if any, in the Applicable Margin shall be made by the
Administrative Agent and shall be effective for Interest Periods applicable to
Euro-Dollar Loans commencing on or after the date of any adjustments to the
Pricing Level as provided in the definition thereof.
(b) Each Base Rate Loan shall bear interest on the outstanding principal
amount thereof, for each day from the date such Loan is made until it becomes
due, at a rate per annum equal to the Base Rate for such day plus the Applicable
Margin. Such interest shall be payable for each Interest Period on the last day
thereof. Any overdue principal of and, to the extent permitted by Applicable
Law, overdue interest on any Base Rate Loan shall bear interest, payable on
demand, for each day until paid at a rate per annum equal to the Default Rate.
(c) Each Euro-Dollar Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the sum of the Applicable Margin plus the applicable Adjusted London
Interbank Offered Rate for such Interest Period; provided that if any
Euro-Dollar Loan shall, as a result of clause (1)(c) of the definition of
Interest Period, have an Interest Period of less than one month, such
Euro-Dollar Loan shall bear interest during such Interest Period at the rate
applicable to Base Rate Loans during such period. Such interest shall be payable
for each Interest Period on the last day thereof and, if such Interest Period is
longer than three (3) months, at intervals of three (3) months after the first
day thereof. Any overdue principal of and, to the extent permitted by Applicable
Law, overdue
- -19-
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
The "Adjusted London Interbank Offered Rate" applicable to any Interest
Period means a rate per annum equal to the quotient obtained (rounded upward, if
necessary, to the next higher 1/100th of 1%) by dividing (i) the applicable
London Interbank Offered Rate for such Interest Period by (ii) 1.00 minus the
Euro-Dollar Reserve Percentage.
The "London Interbank Offered Rate" applicable to any Euro-Dollar Loan
means for the Interest Period of such Euro-Dollar Loan the rate per annum
determined on the basis of the rate for deposits in Dollars of amounts equal or
comparable to the principal amount of such Euro-Dollar Loan offered for a term
comparable to such Interest Period, which rate appears on the display designated
as Page "3750" of the Telerate Service (or such other page as may replace page
3750 of that service or such other service or services as may be nominated by
the British Bankers' Association for the purpose of displaying London Interbank
Offered Rates for Dollar deposits) determined as of 1:00 p.m. New York City
time, two (2) Euro-Dollar Business Days prior to the first day of such Interest
Period.
"Euro-Dollar Reserve Percentage" means for any day that percentage
(expressed as a decimal) which is in effect on such day, as prescribed by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement for a member bank of the Federal
Reserve System in respect of "Eurocurrency liabilities" (or in respect of any
other category of liabilities which includes deposits by reference to which the
interest rate on Euro-Dollar Loans is determined or any category of extensions
of credit or other assets which includes loans by a non-United States office of
any Bank to United States residents). The Adjusted London Interbank Offered Rate
shall be adjusted automatically on and as of the effective date of any change in
the Euro-Dollar Reserve Percentage.
(d) Any overdue principal of and, to the extent permitted by law, overdue
interest on any Euro-Dollar Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
(e) Each Money Market Loan shall bear interest on the outstanding principal
amount thereof, for the Interest Period applicable thereto, at a rate per annum
equal to the Money Market Rate for such Loan quoted by the Bank making such Loan
in accordance with Section 2.03. Such interest shall be payable for such
Interest Period on the last day thereof and, if such Interest Period is longer
than ninety (90) days, at intervals of ninety (90) days after the first day
thereof. Any overdue principal of and, to the extent permitted by law, overdue
interest on any Money Market Loan shall bear interest, payable on demand, for
each day until paid at a rate per annum equal to the Default Rate.
(f) The Administrative Agent shall determine each interest rate applicable
to the Loans hereunder in accordance with this Agreement. The Administrative
Agent shall give prompt notice to the Borrower and the Banks by telecopy of each
rate of interest so determined, and its determination thereof shall be
conclusive in the absence of manifest error.
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(g) After the occurrence and during the continuance of a Default, the
principal amount of the Loans (and, to the extent permitted by Applicable Law,
all accrued interest thereon) may, at the election of the Required Banks, bear
interest at the Default Rate.
SECTION 2.07 Fees.
(a) The Borrower shall pay to the Administrative Agent for the ratable
account of each Bank a facility fee equal to the product of: (i) the aggregate
of the daily average amounts of such Bank's Commitment, times (ii) a per annum
percentage equal to the Applicable Facility Fee Rate. Such facility fee shall
accrue from and including the Closing Date to and including the Termination
Date. Facility fees shall be payable quarterly in arrears on each Facility Fee
Payment Date and on the Termination Date; provided that should the Commitments
be terminated at any time prior to the Termination Date for any reason, the
entire accrued and unpaid facility fee shall be paid on the date of such
termination. The "Applicable Facility Fee Rate" shall be the rate per annum set
forth below opposite the applicable Pricing Level:
Pricing Level Applicable Facility
Fee Rate
Level I .125%
Level II .150%
Level III .175%
Level IV .200%
Adjustments, if any, in the Applicable Facility Fee Rate shall be made by the
Administrative Agent and shall be effective on the date of any adjustments to
the Pricing Level as provided in the definition thereof.
(b) The Borrower shall pay to the Administrative Agent for the ratable
account of each Bank a utilization fee equal to the product of: (i) the
aggregate of the daily average amounts of such Bank's Commitment, multiplied by
(ii) a per annum percentage equal to the Applicable Utilization Fee Rate. The
Applicable Utilization Fee Rate may vary daily in accordance with the percentage
of the Total Commitments that is currently outstanding as Loans. Such
utilization fee shall accrue from and including the Closing Date to and
including the Termination Date. Utilization fees shall be payable quarterly in
arrears on each Facility Fee Payment Date and on the Termination Date; provided
that should the Commitments be terminated at any time prior to the Termination
Date for any reason, the entire accrued and unpaid utilization fee shall be paid
on the date of such termination. The "Applicable Utilization Fee Rate" shall be
the rate per annum set forth below opposite the applicable Pricing Level:
Pricing Level Applicable Utilization Fee Rate
Percentage of Total Commitments currently
outstanding as Loans
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Greater than or
equal to 25% but Greater than or
Less than 25% less than 50% equal to 50%
------------- ------------------ ---------------
Level I 0% 0.100% 0.150%
Level II 0% 0.125% 0.250%
Level III 0% 0.125% 0.250%
Level IV 0% 0.125% 0.250%
Adjustments, if any, in the Applicable Utilization Fee Rate shall be made by the
Administrative Agent and shall be effective on the date of any adjustments to
the Pricing Level as provided in the definition thereof.
(c) The Borrower shall pay to the Administrative Agent, for the account and
sole benefit of the Administrative Agent, such fees and other amounts at such
times as set forth in the Administrative Agent's Letter Agreement.
SECTION 2.08 Optional Termination or Reduction of Commitments. The
Borrower may, upon at least three 3) Domestic Business Days' notice to the
Administrative Agent, terminate at any time, or proportionately reduce from time
to time by an aggregate amount of at least $5,000,000 or any larger multiple of
$1,000,000, the Commitments; provided, however, that no such termination or
reduction shall be in an amount greater than the Total Unused Commitments on the
date of such termination or reduction. If the Commitments are terminated in
their entirety, all accrued fees (as provided under Section 2.07) shall be
payable on the effective date of such termination.
SECTION 2.09 Termination of Commitments. (a) The Commitments shall
terminate on the Termination Date and any Loans then outstanding (together with
accrued interest thereon) shall be due and payable on such date.
SECTION 2.10 Optional Prepayments.
(a) The Borrower may, upon at least one (1) Domestic Business Day's notice
to the Administrative Agent, prepay any Base Rate Borrowing in whole at any
time, or from time to time in part in amounts aggregating at least $1,000,000 or
any larger multiple of $500,000, by paying the principal amount to be prepaid
together with accrued interest thereon to the date of prepayment. Each such
optional prepayment shall be applied to prepay ratably the Base Rate Loans of
the several Banks included in such Base Rate Borrowing.
(b) Except as provided in Section 8.02, the Borrower may not prepay all or
any portion of the principal amount of any Euro-Dollar Loan or any Money Market
Loan prior to the last day of an Interest Period applicable thereto.
(c) Upon receipt of a notice of prepayment pursuant to this Section, the
Administrative Agent shall promptly notify each Bank of the contents thereof and
of such Bank's
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ratable share of such prepayment and such notice shall not thereafter be
revocable by the Borrower.
SECTION 2.11 Mandatory Prepayments. On each date on which the
Commitments are reduced or terminated pursuant to Section 2.08 or Section 2.09,
the Borrower shall repay or prepay such principal amount of the outstanding
Loans, if any (together with interest accrued thereon and any amounts due under
Section8.05(a)), as may be necessary so that after such payment the aggregate
unpaid principal amount of the Loans does not exceed the aggregate amount of the
Commitments as then reduced. Each such payment or prepayment shall be applied to
repay or prepay ratably the Loans of the several Banks; provided that such
prepayment shall be applied, first, to Syndicated Loans outstanding on the date
of such prepayment (in direct order of maturity) and then, to the extent
necessary, to Money Market Loans outstanding on the date of such prepayment (in
direct order of maturity).
SECTION 2.12 General Provisions as to Payments.
(a) The Borrower shall make each payment of principal of, and interest on,
the Loans and of commitment fees hereunder, not later than 11:00 a.m. (Atlanta,
Georgia time) on the date when due, in Federal or other funds immediately
available in Atlanta, Georgia, to the Administrative Agent at its address
referred to in Section 9.01. The Administrative Agent will promptly distribute
to each Bank its ratable share of each such payment received by the
Administrative Agent for the account of the Banks.
(b) Whenever any payment of principal of, or interest on, the Base Rate
Loans or the Money Market Loans or of fees shall be due on a day that is not a
Domestic Business Day, the date for payment thereof shall be extended to the
next succeeding Domestic Business Day. Whenever any payment of principal of, or
interest on, the Euro-Dollar Loans shall be due on a day that is not a
Euro-Dollar Business Day, the date for payment thereof shall be extended to the
next succeeding Euro-Dollar Business Day unless such Euro-Dollar Business Day
falls in another calendar month, in which case the date for payment thereof
shall be the next preceding Euro-Dollar Business Day. If the date for any
payment of principal is extended by operation of law or otherwise, interest
thereon shall be payable for such extended time.
(c) All payments of principal, interest and fees and all other amounts to
be made by the Borrower pursuant to this Agreement with respect to any Loan or
fee relating thereto shall be paid without deduction for, and free from, any
tax, imposts, levies, duties, deductions, or withholdings of any nature now or
at anytime hereafter imposed by any governmental authority or by any taxing
authority thereof or therein excluding in the case of each Bank, taxes imposed
on or measured by its net income, and franchise taxes imposed on it, by the
jurisdiction under the laws of which such Bank is organized or any political
subdivision thereof and, in the case of each Bank, taxes imposed on its income,
and franchise taxes imposed on it, by the jurisdiction of such Bank's applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, imposts, levies, duties, deductions or withholdings of any nature being
"Taxes"). In the event that the Borrower is required by Applicable Law to make
any such withholding or deduction of Taxes with respect to any Loan or fee or
other amount, the Borrower shall pay such deduction or withholding to the
applicable taxing authority, shall promptly furnish to any Bank in respect of
which such deduction or withholding is made all receipts and other documents
evidencing such payment and shall pay to such Bank additional amounts as may be
necessary in
-23-
order that the amount received by such Bank after the required withholding or
other payment shall equal the amount such Bank would have received had no such
withholding or other payment been made. If no withholding or deduction of Taxes
are payable in respect of any Loan or fee relating thereto, the Borrower shall
furnish any Bank, at such Bank's request, a certificate from each applicable
taxing authority or an opinion of counsel acceptable to such Bank, in either
case stating that such payments are exempt from or not subject to withholding or
deduction of Taxes. If the Borrower fails to provide such original or certified
copy of a receipt evidencing payment of Taxes or certificate(s) or opinion of
counsel of exemption, the Borrower hereby agrees to compensate such Bank for,
and indemnify them with respect to, the tax consequences of the Borrower's
failure to provide evidence of tax payments or tax exemption.
In the event any Bank receives a refund of any Taxes paid by the Borrower
pursuant to this Section 2.12, it will pay to the Borrower the amount of such
refund promptly upon receipt thereof; provided, however, if at any time
thereafter it is required to return such refund, the Borrower shall promptly
repay to it the amount of such refund.
Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this
Section 2.12 shall be applicable with respect to any Participant, Assignee or
other Transferee, and any calculations required by such provisions (i) shall be
made based upon the circumstances of such Participant, Assignee or other
Transferee, and (ii) constitute a continuing agreement and shall survive the
termination of this Agreement and the payment in full or cancellation of the
Notes.
SECTION 2.13 Computation of Interest and Fees. Interest on Base Rate
Loans shall be computed on the basis of a year of 360 days and paid for the
actual number of days elapsed (including the first day but excluding the last
day). Interest on Euro-Dollar Loans and interest on Money Market Loans shall be
computed on the basis of a year of 360 days and paid for the actual number of
days elapsed, calculated as to each Interest Period from and including the first
day thereof to but excluding the last day thereof. Facility fees and any other
fees payable hereunder shall be computed on the basis of a year of 360 days and
paid for the actual number of days elapsed (including the first day but
excluding the last day).
ARTICLE III.
CONDITIONS TO BORROWINGS
SECTION 3.01 Conditions to First Borrowing. The obligation of each
Bank to make a Loan on the occasion of the first Borrowing is subject to the
satisfaction of the conditions set forth in Section 3.02 and the following
additional conditions:
(a) receipt by the Administrative Agent from each of the parties hereto of
either (i) a duly executed counterpart of this Agreement signed by such party or
(ii) a facsimile transmission stating that such party has duly executed a
counterpart of this Agreement and sent such counterpart to the Administrative
Agent;
(b) receipt by the Administrative Agent of a duly executed Syndicated Note
and a duly executed Money Market Note for the account of each Bank complying
with the provisions of Section 2.04;
-24-
(c) receipt by the Administrative Agent of an opinion of the Associate
General Counsel of the Borrower, dated as of the Closing Date, substantially in
the form of Exhibit C hereto and covering such additional matters relating to
the transactions contemplated hereby as the Administrative Agent or any Bank may
reasonably request;
(d) receipt by the Administrative Agent of an opinion of Womble Carlyle
Sandridge & Rice PLLC, special counsel for the Administrative Agent, dated as of
the Closing Date, substantially in the form of Exhibit D hereto and covering
such additional matters relating to the transactions contemplated hereby as the
Administrative Agent may reasonably request;
(e) receipt by the Administrative Agent of a certificate (the "Closing
Certificate"), dated the date of the first Borrowing, substantially in the form
of Exhibit G hereto, signed by a principal financial officer of the Borrower, to
the effect that (i) no Default has occurred and is continuing on the date of the
first Borrowing and (ii) the representations and warranties of the Borrower
contained in Article IV are true on and as of the date of the first Borrowing
hereunder;
(f) receipt by the Administrative Agent of all documents which the
Administrative Agent or any Bank may reasonably request relating to the
existence of the Borrower, the corporate authority for and the validity of this
Agreement and the Notes, and any other matters relevant hereto, all in form and
substance satisfactory to the Administrative Agent, including without limitation
a certificate of incumbency of the Borrower (the "Officer's Certificate"),
signed by the Secretary or an Assistant Secretary of the Borrower, substantially
in the form of Exhibit H hereto, certifying as to the names, true signatures and
incumbency of the officer or officers of the Borrower authorized to execute and
deliver the Loan Documents, and certified copies of the following items: (i) the
Borrower's Certificate of Incorporation, (ii) the Borrower's Bylaws, (iii) a
certificate of the Secretary of State of the State of Florida as to the good
standing of the Borrower as a Florida corporation, and (iv) the action taken by
the Board of Directors of the Borrower authorizing the Borrower's execution,
delivery and performance of this Agreement, the Notes and the other Loan
Documents to which the Borrower is a party;
(g) receipt by the Administrative Agent of a Notice of Borrowing (in the
case of a Syndicated Borrowing) or a Money Market Quote Request (in the case of
a Money Market Borrowing);
(h) receipt by the Administrative Agent for the account of each Bank of an
upfront fee calculated as set forth in Schedule 3.01 hereto;
(i) receipt by the Administrative Agent of evidence satisfactory to the
Administrative Agent that the Borrower has repaid in full all amounts
outstanding under, and caused the termination of, that certain Credit Agreement
dated as of May 19, 1995 among the Borrower, the lenders party thereto and First
Union National Bank, as such agreement may have been amended from time to time;
and
(j) receipt by the Administrative Agent of such other documents and items
as the Administrative Agent, the Banks or their counsel may reasonably request.
-25-
SECTION 3.02 Conditions to All Borrowings. The obligation of each Bank
to make a Loan on the occasion of each Borrowing is subject to the satisfaction
of the following conditions:
(a) either (i) receipt by the Administrative Agent of a Notice of Borrowing
as required by Section 2.02 (if such Borrowing is a Syndicated Borrowing), or
(ii) compliance with the provisions of Section 2.03 (if such Borrowing is a
Money Market Borrowing);
(b) the fact that, immediately before and after such Borrowing, no Default
shall have occurred and be continuing;
(c) the fact that the representations and warranties of the Borrower
contained in Article IV of this Agreement shall be true on and as of the date of
such Borrowing; and
(d) the fact that, immediately after such Borrowing (i) the aggregate
outstanding principal amount of the Syndicated Loans of each Bank will not
exceed the amount of its Commitment and (ii) the aggregate outstanding principal
amount of the Loans will not exceed the aggregate amount of the Commitments of
all of the Banks as of such date.
Each Borrowing hereunder shall be deemed to be a representation and warranty by
the Borrower on the date of such Borrowing as to the truth and accuracy of the
facts specified in clauses (b), (c) and (d) of this Section; provided that such
Borrowing shall not be deemed to be such a representation and warranty to the
effect set forth in Section 4.12(b) as to any event, act or condition having a
Material Adverse Effect which has theretofore been disclosed in writing by the
Borrower to the Banks if the aggregate outstanding principal amount of the Loans
immediately after such Borrowing will not exceed the aggregate outstanding
principal amount thereof immediately before such Borrowing.
ARTICLE IV.
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants that:
SECTION 4.01 Organization; Power; Qualification. Each of the Borrower
and its Material Subsidiaries is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation or formation,
has the power and authority to own its properties and to carry on its business
as now being and hereafter proposed to be conducted and is duly qualified and
authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and
authorization, except where the failure to be so qualified and authorized could
not reasonably be expected to have a Material Adverse Effect.
SECTION 4.02 Subsidiaries and Capitalization. Each Material Subsidiary
of the Borrower as of the last day of the Fiscal Quarter most recently ended
prior to the Closing Date is listed on Schedule 4.02. As of the Closing Date,
the capitalization of the Borrower and its Material Subsidiaries consists of the
number of shares, authorized, issued and outstanding, of such classes and
series, with or without par value, described on Schedule 4.02. All outstanding
shares have been duly authorized and validly issued and are fully paid and
nonassessable. As of
-26-
the Closing Date, the shareholders of the Material Subsidiaries of the Borrower
and the number of shares owned by each are described on Schedule 4.02. As of the
Closing Date, there are no outstanding stock purchase warrants, subscriptions,
options, securities, instruments or other rights of any type or nature
whatsoever, which are convertible into, exchangeable for or otherwise provide
for or permit the issuance of capital stock of the Borrower or its Material
Subsidiaries, except as described on Schedule 4.02.
SECTION 4.03 Authorization of Agreement, Loan Documents and Borrowing.
The Borrower has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution and delivery of this
Agreement, the Notes and each of the other Loan Documents and performance hereof
and thereof in accordance with their respective terms. The Notes, when executed
and delivered by the Borrower, will constitute the legal, valid and binding
obligations of the Borrower, enforceable in accordance with their terms, except
as such enforcement may be limited by bankruptcy, insolvency, reorganization,
moratorium or similar state or federal debtor relief laws from time to time in
effect which affect the enforcement of creditors' rights in general and the
availability of equitable remedies. This Agreement and each of such other Loan
Documents have been duly executed and delivered by the duly authorized officers
of the Borrower and each such document constitutes the legal, valid and binding
obligation of the Borrower, enforceable in accordance with its respective terms,
except as such enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar state or federal debtor relief laws from
time to time in effect which affect the enforcement of creditors' rights in
general and the availability of equitable remedies.
SECTION 4.04 Compliance of Agreement, Loan Documents and Borrowing
with Laws, Etc. The execution and delivery by the Borrower of this Agreement,
the Notes and the other Loan Documents, the performance by the Borrower of this
Agreement, the Notes and the other Loan Documents in accordance with their
respective terms, the borrowings hereunder, and the transactions contemplated
hereby and thereby, do not and will not, by the passage of time, the giving of
notice or otherwise, (i) require any Governmental Approval or violate any
Applicable Law relating to the Borrower or any of its Material Subsidiaries,
(ii) conflict with, result in a breach of or constitute a default under the
articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Material Subsidiaries or any indenture, agreement or
other instrument to which such Person is a party or by which any of its
properties may be bound or any Governmental Approval relating to such Person or
(iii) result in or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such Person other
than Liens arising under the Loan Documents
SECTION 4.05 Compliance with Law; Governmental Approvals. Each of the
Borrower and its Subsidiaries (i) has all Governmental Approvals required by any
Applicable Law for it to conduct its business, each of which is in full force
and effect, is final and not subject to review on appeal and is not the subject
of any pending or, to the best of its knowledge, threatened attack by direct or
collateral proceeding and (ii) is in compliance with each Governmental Approval
applicable to it and all other Applicable Laws relating to it or any of its
respective properties, except, in each case under clause (i) and clause (ii) of
this paragraph, to the extent that (A) such requirement or compliance is
contested in good faith by appropriate proceedings or (B) the failure to do so
could not reasonably be expected to have a Material Adverse Effect.
-27-
SECTION 4.06 Tax Returns and Payments. Each of the Borrower and its
Material Subsidiaries has duly filed or caused to be filed all federal and state
income tax returns and all other material state, local and other tax returns
required by Applicable Law to be filed, and has paid, or made adequate provision
for the payment of, all federal, state, local and other taxes, assessments and
governmental charges or levies upon it and its property, income, profits and
assets which are due and payable. No Governmental Authority has asserted any
Lien or other claim against the Borrower or any Material Subsidiary thereof with
respect to unpaid taxes which has not been discharged or resolved, other than
ordinary liens on real property for taxes not yet past due or for taxes being
contested in good faith by appropriate proceedings during the pendency of which
the enforcement of such Lien is stayed and for which the Borrower and its
Material Subsidiaries have established reserves in accordance with GAAP. The
charges, accruals and reserves on the books of the Borrower or any of its
Material Subsidiaries in respect of federal, state, local and other taxes for
all Fiscal Years and portions thereof since the organization of the Borrower and
any of its Subsidiaries are in the judgment of the Borrower adequate, and the
Borrower does not anticipate any additional taxes or assessments in excess of
such charges, accruals and reserves previously recorded for any of such years.
SECTION 4.07 Intellectual Property Matters. Each of the Borrower and
its Material Subsidiaries owns or possesses all lawful rights to use all
franchises, licenses, patents, patent rights or licenses, patent applications,
copyrights, copyright applications, trademarks, trademark rights, trade names,
trade name rights and rights with respect to the foregoing which are required to
conduct its business, except where the failure to do so could not reasonably be
expected to have a Material Adverse Effect. No event has occurred which permits,
or after notice or lapse of time or both would permit, the revocation or
termination of any such rights, and to Borrower's knowledge, neither the
Borrower nor any Material Subsidiary thereof is liable to any Person for
infringement of any such rights as a result of its business operations.
SECTION 4.08 Environmental Matters. Except for the matters described
on Schedule 4.08 as of the Closing Date and except for any other matter which
could not be reasonably expected to have a Material Adverse Effect, (i) the
properties of the Borrower and its Material Subsidiaries are in compliance with
all applicable Environmental Laws, and there is no release or threatened release
of Hazardous Materials at, under or about such properties or such operations
which could interfere with the continued operation of such properties or impair
the fair saleable value thereof and (ii) neither the Borrower nor any of its
Material Subsidiaries has received any written notice of any violation, alleged
violation, non-compliance, liability or potential liability regarding
environmental matters or compliance with Environmental Laws with regard to any
of its properties or the operations conducted in connection therewith, nor does
the Borrower or any of its Material Subsidiaries have knowledge or reason to
believe that any such notice will be received or is being threatened.
SECTION 4.09 ERISA. The Borrower and each member of the Controlled
Group are in material compliance with all applicable provisions of ERISA and the
regulations and published interpretations thereunder with respect to all Plans
except for any required amendments for which the remedial amendment period as
defined in Section 401(b) of the Code has not yet expired. As of the Closing
Date, other than as set forth on Schedule 4.09, each Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by the IRS to be
so qualified, and each trust related to such Plan has been determined to be
exempt under Section 501(a) of the Code. No Reportable Event has occurred as to
which the Borrower or any
-28-
member of the Controlled Group was required to file a report with the PBGC and
no material liability (including without limitation any withdrawal liability
under Section 4201 of ERISA) has been incurred by the Borrower or any member of
the Controlled Group which remains unsatisfied for any taxes or penalties with
respect to any Plan or any Multiemployer Plan.
SECTION 4.10 Margin Stock. Neither the Borrower nor any Subsidiary
thereof is engaged principally or as one of its activities in the business of
extending credit for the purpose of "purchasing" or "carrying" any Margin Stock.
No part of the proceeds of the Loan will be used for purchasing or carrying
Margin Stock or for any purpose which violates, or which would be inconsistent
with, the provisions of Regulation T, U or X of such Board of Governors.
SECTION 4.11 Government Regulation. Neither the Borrower nor any
Subsidiary thereof is an "investment company" or a company "controlled" by an
"investment company" (as each such term is defined or used in the Investment
Company Act of 1940, as amended) and neither the Borrower nor any Subsidiary
thereof is, or after giving effect to the Loan will be, subject to regulation
under the Public Utility Holding Company Act of 1935 or the Interstate Commerce
Act, each as amended, or any other Applicable Law which limits its ability to
incur or consummate the transactions contemplated hereby.
SECTION 4.12 Financial Statements.
(a) The audited combined balance sheet of the Borrower and its Subsidiaries
as of May 30, 1999, and the related statements of income and retained earnings
and cash flows for the Fiscal Year then ended and unaudited combined balance
sheet of the Borrower and its Subsidiaries as of August 29, 1999, and related
unaudited interim statements of income and retained earnings and cash flows for
the fiscal period then ended, copies of which have been furnished to the
Administrative Agent and each of the Banks, fairly represent the assets,
liabilities and financial position of the Borrower and its Subsidiaries as at
such dates, and the results of the operations and changes of financial position
for the periods then ended. All such financial statements, including any related
schedules and notes thereto, have been prepared in accordance with GAAP. As of
the respective dates of such financial statements, the Borrower and its
Subsidiaries have no indebtedness, obligation or other unusual forward or
long-term commitment that is not fairly reflected in the foregoing financial
statements or in the notes thereto.
(b) Since May 30, 1999, there has been no event, act, condition or
occurrence having a Material Adverse Effect.
SECTION 4.13 Title to Properties. Each of the Borrower and its
Subsidiaries has such title to the real property owned by it as is necessary or
desirable to the conduct of its business and valid and legal title to all of its
personal property and assets, including, but not limited to, those assets
reflected on the balance sheets of the Borrower and its Subsidiaries included in
the financial statements referred to in Section 4.12(a), except as disclosed in
Form 10-K for the Borrower's Fiscal Year ended May 30, 1999, filed by the
Borrower with the SEC, and such assets which have been disposed of by the
Borrower or its Subsidiaries subsequent to such date in the ordinary course of
business or as otherwise expressly permitted hereunder.
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SECTION 4.14 Debt and Liens. Schedule 4.14 is a complete and correct
list of each item of Consolidated Total Debt of the Borrower and its
Subsidiaries (setting forth with respect to each such item the amount and stated
maturity of Consolidated Total Debt Outstanding, the identity of the Person to
whom such Consolidated Total Debt is owed and the date such Consolidated Debt
was incurred) and each Lien securing any such Debt (setting forth with respect
to each such Lien the property subject to such Lien) as of the Closing Date. The
Borrower and its Subsidiaries have complied in all material respects with all of
the terms of such Debt and Liens and all instruments and agreements relating
thereto, and no default or event of default, or event or condition which with
notice or lapse of time or both would constitute such a default or event of
default on the part of the Borrower or its Subsidiaries exists with respect to
any such Debt or Lien. None of the properties and assets of the Borrower or any
Subsidiary thereof is subject to any Lien, except Liens permitted pursuant to
Section 5.13.
SECTION 4.15 Litigation. Except for the matters described on Schedule
4.15 as of the Closing Date and except for any other matter which could not be
reasonably expected to have a Material Adverse Effect, there are no actions,
suits or proceedings pending nor, to the best knowledge of the Borrower,
threatened against or in any other way relating adversely to or affecting the
Borrower or any Subsidiary thereof or any of their respective properties in any
court or before any arbitrator of any kind or before or by any Governmental
Authority.
SECTION 4.16 Absence of Defaults. No event has occurred or is
continuing which constitutes a Default, or which constitutes, or which with the
passage of time or giving of notice or both would constitute, a default or event
of default by the Borrower or any Subsidiary thereof under any judgment, decree
or order by which the Borrower or its Subsidiaries or any of their respective
properties may be bound or which would require the Borrower or its Subsidiaries
to make any payment thereunder prior to the scheduled maturity date therefor.
SECTION 4.17 Accuracy and Completeness of Information. All written
information, reports and other papers and data produced by or on behalf of the
Borrower or any Subsidiary thereof and furnished to the Administrative Agent and
each of the Banks (including without limitation a copy of Form 10-K for the
Borrower's Fiscal Year ended May 30, 1999, filed by the Borrower with the SEC)
were, at the time the same were so furnished, complete and correct in all
respects to the extent necessary to give the recipient a true and accurate
knowledge of the subject matter. No document or other written information
furnished or written statement made to the Administrative Agent or any of the
Banks by the Borrower or any Subsidiary thereof in connection with the
negotiation, preparation or execution of this Agreement or any of the Loan
Documents contains or will contain any untrue statement of a fact material to
the creditworthiness of the Borrower or its Subsidiaries or omits or will omit
to state a fact necessary in order to make the statements contained therein not
misleading.
SECTION 4.18 Insolvency. After giving effect to the execution and
delivery of the Loan Documents and the making of the Loans under this Agreement,
the Borrower will not be "insolvent," within the meaning of such term as used in
O.C.G.A. ss. 18-2-22 or as defined in ss. 101 of Title 11 of the United States
Code or Section 2 of the Uniform Fraudulent Transfer Act, or any other
applicable state law pertaining to fraudulent transfers, as each may be amended
from time to time, or be unable to pay its debts generally as such debts become
due, or have an unreasonably small capital to engage in any business or
transaction, whether current or contemplated.
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SECTION 4.19 Insurance. The Borrower will maintain, and will cause
each of its Subsidiaries to maintain (either in the name of the Borrower or in
such Subsidiary's own name), with financially sound and reputable insurance
companies, insurance on all its property in at least such amounts and against at
least such risks as are usually insured against in the same general area by
companies of established repute engaged in the same or similar business.
SECTION 4.20 Compliance with Year 2000 Plan. The Borrower has
developed a comprehensive plan (the "Y2K Plan") for insuring that the Borrower's
and its Subsidiaries' software and hardware systems which impact or affect in
any way the business operations of the Borrower and its Subsidiaries will be
Year 2000 Compliant and Ready. The Borrower and its Subsidiaries have met the
Y2K Plan milestones such that all hardware and software systems will be Year
2000 Compliant and Ready in accordance with the Y2K Plan.
ARTICLE V.
COVENANTS
The Borrower agrees that, so long as any Bank has any Commitment hereunder
or any amount payable under any Note remains unpaid:
SECTION 5.01 Financial Information and Notices. The Borrower will
deliver to each of the Banks:
(a) Financial Statements and Projections.
(i) As soon as practicable and in any event within sixty (60) days
after the end of each Fiscal Quarter, an unaudited Consolidated balance
sheet of the Borrower and its Subsidiaries as of the close of such Fiscal
Quarter and unaudited Consolidated condensed statements of income, retained
earnings and cash flows for the Fiscal Quarter then ended and that portion
of the Fiscal Year then ended, including the condensed notes thereto, all
in reasonable detail setting forth in comparative form the corresponding
figures for the preceding Fiscal Year and prepared by the Borrower in
accordance with GAAP and, if applicable, containing disclosure of the
effect on the financial position or results of operations of any change in
the application of accounting principles and practices during the period,
and certified by the chief financial officer or treasurer of the Borrower
to present fairly in all material respects the financial condition of the
Borrower and its Subsidiaries as of their respective dates and the results
of operations of the Borrower and its Subsidiaries for the respective
periods then ended, subject to normal year end adjustments.
(ii) As soon as practicable and in any event within ninety (90) days
after the end of each Fiscal Year, an audited Consolidated balance sheet of
the Borrower and its Subsidiaries as of the close of such Fiscal Year and
audited Consolidated statements of income, retained earnings and cash flows
for the Fiscal Year then ended, including the notes thereto, all in
reasonable detail setting forth in comparative form the corresponding
figures for the preceding Fiscal Year and prepared in accordance with GAAP
and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of
accounting principles and
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practices during the year, and accompanied by an opinion thereon from KPMG
Peat Marwick or other nationally-recognized independent public accounting
firm acceptable to the Administrative Agent that is not qualified with
respect to scope limitations imposed by the Borrower or any of its
Subsidiaries or with respect to accounting principles followed by the
Borrower or any of its Subsidiaries not in accordance with GAAP.
(iii) To the extent not delivered pursuant to clause (i) or (ii) of
this Section 5.01(a), promptly but in any event within ten (10) Domestic
Business Days after the filing thereof, a copy of (A) each report or other
filing made by the Borrower or its Subsidiaries with the SEC and required
by the SEC to be delivered to the shareholders of the Borrower, and (B)
each report made by the Borrower or any of its Subsidiaries to the SEC on
Form 8-K and each final registration statement of the Borrower or any of
its Subsidiaries filed with the SEC other than on Form S-8.
(iv) Such other information regarding the operations, business affairs
and financial condition of the Borrower or any of its Subsidiaries as the
Administrative Agent or any Bank may reasonably request.
(b) Officer's Compliance Certificate. At each time financial statements are
delivered pursuant to clause (i) or (ii) of Section 5.01(a), a certificate of
the chief financial officer or treasurer of the Borrower in the form of Exhibit
I attached hereto (an "Officer's Compliance Certificate"):
(i) stating that such officer has reviewed such financial statements
and such statements fairly present the financial condition of the Borrower
and its Subsidiaries as of the dates indicated and the results of its
operations and cash flows for the periods indicated;
(ii) stating that to such officer's knowledge, based on a reasonable
examination sufficient to enable him to make an informed statement, no
Default, or, if such is not the case, specifying such Default and its
nature, when it occurred, whether it is continuing and the steps being
taken by the Borrower with respect to such Default;
(iii) setting forth a list of the Material Subsidiaries and the
percent of total revenues of the Borrower and its Subsidiaries and percent
of total assets of the Borrower and its Subsidiaries which each such
Material Subsidiary represents; and
(iv) setting forth as at the end of such Fiscal Quarter or Fiscal
Year, as the case may be, the calculations required to establish whether or
not the Borrower and its Subsidiaries were in compliance with the financial
covenant set forth in Section 5.20 hereof as at the end of each respective
period.
(c) Notice of Litigation and Other Matters. Promptly (but in no event later
than ten (10) days (unless otherwise specified herein) after an officer of the
Borrower obtains knowledge thereof) telephonic and written notice of:
(i) the commencement of all proceedings and investigations by or
before any Governmental Authority and all actions and proceedings in any
court or
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before any arbitrator against or involving the Borrower or any Subsidiary
thereof or any of their respective properties, assets or businesses which
in any such case could reasonably be expected to have a Material Adverse
Effect;
(ii) any notice of any violation received by the Borrower or any
Subsidiary thereof from any Governmental Authority which could reasonably
be expected to have a Material Adverse Effect including, without
limitation, any notice of violation of Environmental Laws which in any such
case could reasonably be expected to have a Material Adverse Effect;
(iii) any labor controversy that has resulted in, or threatens to
result in, a strike or other work action against the Borrower or any
Subsidiary thereof which in any such case could reasonably be expected to
have a Material Adverse Effect;
(iv) any attachment, judgment, lien, levy or order in an amount or
with respect to assets of the Borrower or any of its Subsidiaries exceeding
$25,000,000 that may be rendered, assessed or threatened against the
Borrower or any Subsidiary thereof;
(v) any Default;
(vi) any Reportable Event or "prohibited transaction", as such term is
defined in Section 406 of ERISA or Section 4975 of the Code, in connection
with any Plan or any trust created thereunder which could reasonably be
expected to result in liability of the Borrower or any member of the
Controlled Group in an aggregate amount exceeding $25,000,000, along with a
description of the nature thereof, what action the Borrower has taken, is
taking or proposes to take with respect thereto and, when known, any action
taken or threatened by the IRS, the DOL or the PBGC with respect thereto;
and
(vii) any event which makes any of the representations set forth in
Article IV inaccurate in any manner which could reasonably be expected to
have a Material Adverse Effect.
(d) Notice of Change of Debt Rating. Promptly, but in no event later than
five (5) Domestic Business Days after an officer of the Borrower obtains
knowledge thereof, telephonic and written notice of any change in the Borrower's
Debt Rating.
(e) Accuracy of Information. All written information, reports, statements
and other papers and data furnished by or on behalf of the Borrower to the
Administrative Agent or any of the Banks (other than financial forecasts)
whether pursuant to this Section 5.01 or any other provision of this Agreement
or any of the other Loan Documents, shall be, at the time the same is so
furnished, complete and correct in all material respects to the extent necessary
to give the Administrative Agent and the Banks complete, true and accurate
knowledge of the subject matter based on the Borrower's knowledge thereof.
(f) Y2K Notices.
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(i) Within five (5) Domestic Business Days after the Borrower becomes
aware of any deviations from the Y2K Plan which would cause compliance with
the Y2K Plan to be materially delayed or not achieved, a statement of the
chief executive officer, chief financial officer, or chief technology
officer of the Borrower setting forth the details thereof and the action
which the Borrower is taking or proposes to take with respect thereto.
(ii) Promptly upon the receipt thereof, a copy of third party
assessments, if any, of the Borrower's Y2K Plan made after the Closing Date
together with any recommendations made by such third party with respect to
Year 2000 compliance.
SECTION 5.02 Preservation of Corporate Existence and Related Matters
Except as permitted by Section 5.14, the Borrower shall, and shall cause each
Subsidiary to, preserve and maintain its separate corporate existence and all
rights, franchises, licenses and privileges necessary to the conduct of its
business and qualify and remain qualified as a foreign corporation and
authorized to do business in each jurisdiction in which it is required to be so
qualified, except where the failure to be so qualified and authorized could not
reasonably be expected to have a Material Adverse Effect.
SECTION 5.03 Maintenance of Property. The Borrower will, and will
cause each Subsidiary to, protect and preserve all properties useful in and
material to its business, including copyrights, patents, trade names and
trademarks; maintain in good working order and condition all buildings,
equipment and other tangible real and personal property, ordinary wear and tear
excepted; and from time to time make or cause to be made all renewals,
replacements and additions to such property necessary for the conduct of its
business, so that the business carried on in connection therewith may be
properly and advantageously conducted at all times.
SECTION 5.04 Insurance. The Borrower will, and will cause each
Subsidiary to, maintain insurance with financially sound and reputable insurance
companies, or systems of self-insurance, against such risks and in such amounts
as are customarily maintained by similar businesses and as may be required by
Applicable Law, and deliver to the Administrative Agent or any Bank upon its
request a detailed list of the insurance then in effect, stating the names of
the insurance companies, the amounts and rates of the insurance, the dates of
the expiration thereof and the properties and risks covered thereby.
SECTION 5.05 Accounting Methods and Financial Records. The Borrower
will maintain a system of accounting, and keep such books, records and accounts
(which shall be true and complete in all material respects) as may be required
or as may be necessary to permit the preparation of financial statements in
accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 5.06 Payment and Performance of Obligations. The Borrower
will, and will cause each Subsidiary to, pay and perform all obligations under
this Agreement, the Notes and the other Loan Documents, and pay or perform (i)
all taxes, assessments and other governmental charges that may be levied or
assessed upon it or any of its property and (ii) all other indebtedness,
obligations and liabilities in accordance with customary trade practices;
provided that the Borrower or such Subsidiary may contest any item described in
clause (i) and
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(ii) of this Section 5.06, in good faith so long as adequate reserves are
maintained with respect thereto in accordance with GAAP.
SECTION 5.07 Compliance With Laws, Approvals and Agreements. The
Borrower will, and will cause each Subsidiary to, observe and remain in material
compliance with all Applicable Laws; maintain in full force and effect all
Governmental Approvals; and observe and remain in material compliance with all
material agreements (including the Distribution Agreement and Tax Agreement as
described in Form 10/A of the Borrower effective May 5, 1995, as filed with the
SEC), in each case necessary and material to the conduct of its business.
SECTION 5.08 Compliance with ERISA. In addition to and without
limiting the generality of Section 5.07, the Borrower will, and will cause each
Subsidiary to, (i) comply in all material respects with all applicable
provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Plans, (ii) not take any action or fail to take action the
result of which could be a liability to the PBGC or to a Multiemployer Plan, and
not participate in any prohibited transaction that could result in any civil
penalty under ERISA or tax under the Code and (iii) furnish to the
Administrative Agent or any Bank upon request such additional information about
any Plan or Multiemployer Plan as may be reasonably requested by the
Administrative Agent or such Bank.
SECTION 5.09 Conduct of Business. The Borrower will, and will cause
each Subsidiary to, engage only in businesses in substantially the same fields
as the businesses conducted on the Closing Date and in lines of business
reasonably related thereto.
SECTION 5.10 Loans or Advances. Neither the Borrower nor any of its
Subsidiaries shall make loans or advances to any Person, except loans and
advances the aggregate amount of which, when aggregated with the aggregate
amount of Permitted Investments and Permitted Transfers made after the Closing
Date, does not exceed the Test Amount, provided that after giving effect to the
making of any loans and advances permitted by this Section, no Default shall
have occurred and be continuing.
SECTION 5.11 Investments. Neither the Borrower nor any of its
Subsidiaries shall make Investments in any Person except as permitted by Section
5.10 and except Investments (i) made pursuant to the Investment Policy, (ii)
constituting Permitted Acquisitions, or (iii) not otherwise permitted by clause
(i) or (ii) of this Section the aggregate amount of which, when aggregated with
the aggregate amount of Permitted Loans and Advances and Permitted Transfers
made after the Closing Date, does not exceed the Test Amount; provided that
after giving effect to the making of any Investments permitted by clauses (i)
through (iii) of this Section, no Default shall have occurred and be continuing.
SECTION 5.12 Visits and Inspections. The Borrower will, and will cause
each Subsidiary to, permit representatives of the Administrative Agent or any
Bank, from time to time during regular business hours and upon reasonable
notice, to visit and inspect its properties; inspect, audit and make extracts
from its books, records and files, including, but not limited to, management
letters prepared by independent accountants; and discuss with its principal
officers, and its independent accountants, its business, assets, liabilities,
financial condition, results of operations and business prospects.
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SECTION 5.13 Limitations on Liens. Neither the Borrower nor any of its
Subsidiaries will create, incur, assume or suffer to exist, any Lien on or with
respect to any of its assets or properties (including shares of capital stock),
real or personal, whether now owned or hereafter acquired, except:
(a) Existing Liens described on Schedule 4.14;
(b) Liens for taxes, assessments and other governmental charges or levies
not yet due or as to which the period of grace, if any, related thereto has not
expired or which are being contested in good faith and by appropriate
proceedings if adequate reserves are maintained to the extent required by GAAP;
(c) the claims of materialmen, mechanics, carriers, warehousemen,
processors or landlords for labor, materials, supplies or rentals incurred in
the ordinary course of business, (A) which are not overdue for a period of more
than sixty (60) days, (B) which are being contested in good faith and by
appropriate proceedings if adequate reserves are maintained to the extent
required by GAAP or (C) which have been bonded for the full amount thereof;
(d) Liens consisting of deposits or pledges made in the ordinary course of
business (A) in connection with or to secure a payment of, obligations under
workers' compensation, unemployment insurance or similar legislation or (B) to
secure the performance of letters of credit, bids, tenders, sales contracts,
leases, statutory obligations, surety, appeal and performance bonds and other
similar obligations, in each case not incurred in connection with the borrowing
of money or the payment of the deferred purchase price of property;
(e) Liens constituting encumbrances in the nature of zoning restrictions,
easements and rights or restrictions of record on the use of real property,
which in the aggregate are not substantial in amount and which do not, in any
case, detract from the value of such property or impair the use thereof in the
ordinary conduct of business;
(f) Liens granted to or in favor of the Administrative Agent for the
benefit of the Banks;
(g) purchase money Liens and Liens securing Capital Leases; provided that
the Lien attaches only to the asset being purchased or leased and does not
exceed 100% of the purchase price or fair market value of such asset;
(h) attachment, judgment and similar Liens arising in connection with court
proceedings other than any such Lien which would create an Event of Default
under Section 6.01(i);
(i) Liens on assets of Persons which become Subsidiaries after the date of
this Agreement; provided that such Liens existed at the time the respective
Persons became Subsidiaries and were not created in anticipation thereof;
(j) Liens arising solely by virtue of any statutory or common law provision
relating to bankers' liens, rights of set-off or similar rights and remedies as
to deposit accounts or other funds maintained with a creditor depository
institution; provided that (A) such deposit account is
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not a dedicated cash collateral account and is not subject to restrictions
against access by the Borrower or any of its Subsidiaries in excess of those set
forth by regulations promulgated by the Federal Reserve Board and (B) such
deposit account is not intended by the Borrower or any of its Subsidiaries to
provide collateral to the depository institution; and
(k) other Liens on assets or other properties of the Borrower and its
Subsidiaries; provided that the sum of the aggregate Consolidated Total Debt
secured by such other Liens (exclusive of Consolidated Total Debt secured by
Liens permitted by clauses (a) through (j) of this Section 5.13) shall not
exceed an amount equal to $25,000,000.
SECTION 5.14 Limitations on Mergers, Liquidations and Sales of Assets.
Neither the Borrower nor any of its Subsidiaries will merge, consolidate or
enter into any similar combination with any other Person; liquidate, wind-up or
dissolve itself (or suffer any liquidation or dissolution); or sell its assets
in one or more series of transactions except:
(a) the Borrower and its Subsidiaries may sell assets if the aggregate
amount of assets sold after the Closing Date, when aggregated with the aggregate
amount of Permitted Investments and Permitted Loans and Advances made after the
Closing Date, does not exceed the Test Amount;
(b) any Subsidiary may merge with any other Subsidiary or with the Borrower
(if the Borrower is the entity surviving such merger);
(c) the Borrower may merge with any Person as long as the Borrower is the
surviving Person and no Default shall have occurred before and after giving
effect to such merger; and
(d) any Subsidiary may sell all or a substantial portion of its assets to
the Borrower or any other Subsidiary.
SECTION 5.15 Certain Accounting Changes. The Borrower will not make
any material change in its accounting treatment and reporting practices except
as required by or as otherwise consistent with GAAP.
SECTION 5.16 Change in Fiscal Year. The Borrower will not change its
Fiscal Year without the consent of the Required Banks.
SECTION 5.17 Restrictive Agreements. Neither the Borrower nor any of
its Subsidiaries will enter into any agreement which causes or permits to exist
or become effective any encumbrance or restriction on the ability of any
Subsidiary to (i) pay dividends or make any other distributions on its capital
stock to the Borrower or any Subsidiary, (ii) pay any indebtedness or other
obligation owed to the Borrower or any Subsidiary, (iii) make any loans or
advances to the Borrower or any Subsidiary or (iv) transfer any of its
properties or assets to the Borrower or any Subsidiary.
SECTION 5.18 Acquisitions. Neither the Borrower nor any of its
Subsidiaries shall make any Acquisitions, provided that Permitted Acquisitions
may be made if, after giving effect thereto, no Default would be caused thereby
(giving effect thereto on a pro forma basis as to financial covenants).
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SECTION 5.19 Y2K Plan. The Borrower will meet the milestones contained
in the Y2K Plan and will have all hardware and software systems Year 2000
Compliant and Ready (including all internal and external testing) on or before
September 30, 1999.
SECTION 5.20 Ratio of Consolidated Total Debt to Consolidated Total
Capitalization. The ratio of Consolidated Total Debt to Consolidated Total
Capitalization shall at all times be less than 0.55 to 1.00.
SECTION 5.21 Limitation on Priority Debt. The Borrower shall not
permit the outstanding principal amount of Priority Debt to exceed, in the
aggregate, more than $25,000,000 at any time.
ARTICLE VI.
DEFAULTS
SECTION 6.01 Events of Default. If one or more of the following events
("Events of Default") shall have occurred and be continuing:
(a) the Borrower shall fail to pay when due any principal of, or any
interest on, any Loan or shall fail to pay within three (3) Domestic Business
Days of the date when due any fee or other amount payable hereunder; or
(b) the Borrower shall fail to observe or perform any covenant contained in
Section 5.01(c)(v), 5.01(d), 5.01(f)(ii), 5.02, 5.05, 5.06, 5.09, 5.10, 5.11 to
5.18, inclusive, 5.20 or 5.21; or
(c) the Borrower shall fail to observe or perform any covenant or agreement
contained or incorporated by reference in this Agreement (other than those
covered by clause (a) or (b) above) for thirty (30) days after the earlier of
(i) the first day on which the Borrower has knowledge of such failure or (ii)
written notice thereof has been given to the Borrower by the Administrative
Agent at the request of any Bank; or
(d) any representation, warranty, certification or statement made or deemed
made by the Borrower in Article IV of this Agreement or in any certificate,
financial statement or other document delivered pursuant to this Agreement shall
prove to have been incorrect or misleading in any material respect when made (or
deemed made); or
(e) the Borrower or any Subsidiary shall (i) default in the payment of any
item or items of Consolidated Total Debt outstanding of the Borrower or any
Subsidiary (other than the Notes) the aggregate outstanding amount of which is
in excess of $25,000,000 beyond the period of grace, if any, provided in the
instrument or agreement under which such Debt was created or (ii) default in the
observance or performance of any other agreement or condition relating to any
item or items of Consolidated Total Debt outstanding of the Borrower or any
Subsidiary (other than the Notes) the aggregate outstanding amount of which is
in excess of $25,000,000 or contained in any instrument or agreement evidencing,
securing or relating thereto or any other event shall occur or condition exist,
which results in the acceleration of the maturity of Consolidated Total Debt
outstanding of the Borrower or any Subsidiary or the mandatory
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prepayment or purchase of such Debt by the Borrower (or its designee) or such
Subsidiary (or its designee) prior to the scheduled maturity thereof, or enables
(or, with the giving of notice or lapse of time or both, would enable) the
holders of such Debt or any Person acting on such holders' behalf to accelerate
the maturity thereof or require the mandatory prepayment or purchase thereof
prior to the scheduled maturity thereof, without regard to whether such holders
or other Person shall have exercised or waived their right to do so; or
(f) the Borrower or any Subsidiary shall commence a voluntary case or other
proceeding seeking liquidation, reorganization or other relief with respect to
itself or its debts under any bankruptcy, insolvency or other similar law now or
hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, or shall consent to any such relief or to the appointment of or
taking possession by any such official in an involuntary case or other
proceeding commenced against it, or shall make a general assignment for the
benefit of creditors, or shall fail generally, or shall admit in writing its
inability, to pay its debts as they become due, or shall take any corporate
action to authorize any of the foregoing; or
(g) an involuntary case or other proceeding shall be commenced against the
Borrower or any Subsidiary seeking liquidation, reorganization or other relief
with respect to it or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of it or any
substantial part of its property, and such involuntary case or other proceeding
shall remain undismissed and unstayed for a period of sixty (60) days; or an
order for relief shall be entered against the Borrower or any Subsidiary under
the federal bankruptcy laws as now or hereafter in effect; or
(h) the Borrower or any member of the Controlled Group shall fail to pay
when due any material amount which it shall have become liable to pay to the
PBGC or to a Plan under Title IV of ERISA; or notice of intent to terminate a
Plan or Plans shall be filed under Title IV of ERISA by the Borrower, any member
of the Controlled Group, any plan administrator or any combination of the
foregoing; or the PBGC shall institute proceedings under Title IV of ERISA to
terminate or to cause a trustee to be appointed to administer any such Plan or
Plans or a proceeding shall be instituted by a fiduciary of any such Plan or
Plans to enforce Section 515 or 4219(c)(5) of ERISA and such proceeding shall
not have been dismissed within thirty (30) days thereafter; or a condition shall
exist by reason of which the PBGC would be entitled to obtain a decree
adjudicating that any such Plan or Plans must be terminated; or the Borrower or
any other member of the Controlled Group shall enter into, contribute or be
obligated to contribute to, terminate or incur any withdrawal liability with
respect to, a Multiemployer Plan; or
(i) one or more judgments or orders for the payment of money in an
aggregate amount in excess of $25,000,000 shall be rendered against the Borrower
or any Subsidiary and such judgment or order shall continue unsatisfied and
unstayed for a period of thirty (30) days; or
(j) a federal tax lien shall be filed against the Borrower or any
Subsidiary under Section 6323 of the Code or a lien of the PBGC shall be filed
against the Borrower or any Subsidiary under Section 4068 of ERISA and in either
case such lien shall remain undischarged for a period of twenty-five (25) days
after the date of filing; or
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(k) (i) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of 1934) of
twenty percent (20%) or more of the outstanding shares of the voting stock of
the Borrower; or (ii) as of any date a majority of the Board of Directors of the
Borrower consists of individuals who were not either (A) directors of the
Borrower as of the corresponding date of the previous year, (B) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A), or (C) selected or
nominated to become directors by the Board of Directors of the Borrower of which
a majority consisted of individuals described in clause (A) and individuals
described in clause (B);
then, and in every such event, the Administrative Agent shall (i) if requested
by the Required Banks, by notice to the Borrower terminate the Commitments and
they shall thereupon terminate, and (ii) if requested by the Required Banks, by
notice to the Borrower declare the Notes (together with accrued interest
thereon) and all other amounts payable hereunder and under the other Loan
Documents to be, and the Notes (together will all accrued interest thereon) and
all other amounts payable hereunder and under the other Loan Documents shall
thereupon become, immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by the
Borrower; provided that if any Event of Default specified in clause (f) or (g)
above occurs with respect to the Borrower, without any notice to the Borrower or
any other act by the Administrative Agent or the Banks, the Commitments shall
thereupon automatically terminate and the Notes (together with accrued interest
thereon) and all other amounts payable hereunder and under the other Loan
Documents shall automatically become immediately due and payable without
presentment, demand, protest or other notice of any kind, all of which are
hereby waived by the Borrower. Notwithstanding the foregoing, the Administrative
Agent shall have available to it all other remedies at law or equity, and shall
exercise any one or all of them at the request of the Required Banks.
SECTION 6.02 Notice of Default. The Administrative Agent shall give
notice to the Borrower of any Default under Section 6.01(c) promptly upon being
requested to do so by any Bank and shall thereupon notify all the Banks thereof.
ARTICLE VII.
THE ADMINISTRATIVE AGENT
SECTION 7.01 Appointment, Powers and Immunities. Each Bank hereby
irrevocably appoints and authorizes the Administrative Agent to act as its
Administrative Agent hereunder and under the other Loan Documents with such
powers as are specifically delegated to the Administrative Agent by the terms
hereof and thereof, together with such other powers as are reasonably incidental
thereto. The Administrative Agent: (a) shall have no duties or responsibilities
except as expressly set forth in this Agreement and the other Loan Documents,
and shall not by reason of this Agreement or any other Loan Document be a
trustee for any Bank; (b) shall not be responsible to the Banks for any
recitals, statements, representations or warranties contained in this Agreement
or any other Loan Document, or in any certificate or other document referred to
or provided for in, or received by any Bank under, this Agreement or any other
Loan Document, or for the validity, effectiveness, genuineness, enforceability
or sufficiency of this Agreement or any other Loan Document or any other
document referred to or
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provided for herein or therein or for any failure by the Borrower to perform any
of its obligations hereunder or thereunder; (c) shall not be required to
initiate or conduct any litigation or collection proceedings hereunder or under
any other Loan Document except to the extent requested by the Required Banks,
and then only on terms and conditions satisfactory to the Administrative Agent,
and (d) shall not be responsible for any action taken or omitted to be taken by
it hereunder or under any other Loan Document or any other document or
instrument referred to or provided for herein or therein or in connection
herewith or therewith, except for its own gross negligence or willful
misconduct. The Administrative Agent may employ agents and attorneys-in-fact and
shall not be responsible for the negligence or misconduct of any such agents or
attorneys-in-fact selected by it with reasonable care. The provisions of this
Article VII are solely for the benefit of the Administrative Agent and the
Banks, and the Borrower shall not have any rights as a third party beneficiary
of any of the provisions hereof. In performing its functions and duties under
this Agreement and under the other Loan Documents, the Administrative Agent
shall act solely as agent of the Banks and does not assume and shall not be
deemed to have assumed any obligation towards or relationship of agency or trust
with or for the Borrower. The duties of the Administrative Agent shall be
ministerial and administrative in nature, and the Administrative Agent shall not
have by reason of this Agreement or any other Loan Document a fiduciary
relationship in respect of any Bank.
SECTION 7.02 Reliance by Administrative Agent. The Administrative
Agent shall be entitled to rely upon any certification, notice or other
communication (including any thereof by telephone, telefax, telegram or cable)
believed by it to be genuine and correct and to have been signed or sent by or
on behalf of the proper Person or Persons, and upon advice and statements of
legal counsel, independent accountants or other experts selected by the
Administrative Agent. As to any matters not expressly provided for by this
Agreement or any other Loan Document, the Administrative Agent shall in all
cases be fully protected in acting, or in refraining from acting, hereunder and
thereunder in accordance with instructions signed by the Required Banks, and
such instructions of the Required Banks in any action taken or failure to act
pursuant thereto shall be binding on all of the Banks.
SECTION 7.03 Defaults. The Administrative Agent shall not be deemed to
have knowledge of the occurrence of a Default (other than the non-payment of
principal of or interest on the Loans) unless the Administrative Agent has
received notice from a Bank or the Borrower specifying such Default and stating
that such notice is a "Notice of Default". In the event that the Administrative
Agent receives such a notice of the occurrence of a Default, the Administrative
Agent shall give prompt notice thereof to the Banks. The Administrative Agent
shall (subject to Section 9.05) take such action with respect to such Default as
shall be directed by the Required Banks, provided that, unless and until the
Administrative Agent shall have received such directions, the Administrative
Agent may (but shall not be obligated to) take such action, or refrain from
taking such action, with respect to such Default as it shall deem advisable in
the best interests of the Banks.
SECTION 7.04 Rights of Administrative Agent and its Affiliates as a
Bank. With respect to any Loan made by Wachovia or an Affiliate of Wachoiva,
such Affiliate and Wachovia in their capacity as a Bank hereunder shall have the
same rights and powers hereunder as any other Bank and may exercise the same as
though it were not an Affiliate of Wachovia (or in Wachovia's case, acting as
the Administrative Agent), and the term "Bank" or "Banks" shall, unless the
context otherwise indicates, include such Affiliate of Wachovia or Wachovia in
its
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individual capacity. Such Affiliate and Wachovia may (without having to account
therefor to any Bank) accept deposits from, lend money to and generally engage
in any kind of banking, trust or other business with the Borrower (and any of
its Affiliates) as if they were not an Affiliate of the Administrative Agent or
the Administrative Agent, respectively; and such Affiliate and Wachovia may
accept fees and other consideration from the Borrower (in addition to any agency
fees and arrangement fees heretofore agreed to between the Borrower and
Wachovia) for services in connection with this Agreement or any other Loan
Document or otherwise without having to account for the same to the Banks.
SECTION 7.05 Indemnification. Each Bank severally agrees to indemnify
the Administrative Agent, to the extent the Administrative Agent shall not have
been reimbursed by the Borrower, ratably in accordance with its Commitment, for
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses (including, without limitation, counsel fees
and disbursements) or disbursements of any kind and nature whatsoever which may
be imposed on, incurred by or asserted against the Administrative Agent in any
way relating to or arising out of this Agreement or any other Loan Document or
any other documents contemplated by or referred to herein or therein or the
transactions contemplated hereby or thereby (excluding, unless a Default has
occurred and is continuing, the normal administrative costs and expenses
incident to the performance of its agency duties hereunder) or the enforcement
of any of the terms hereof or thereof or any such other documents; provided,
however, that no Bank shall be liable for any of the foregoing to the extent
they arise from the gross negligence or willful misconduct of the Administrative
Agent. If any indemnity furnished to the Administrative Agent for any purpose
shall, in the opinion of the Administrative Agent, be insufficient or become
impaired, the Administrative Agent may call for additional indemnity and cease,
or not commence, to do the acts indemnified against until such additional
indemnity is furnished.
SECTION 7.06 CONSEQUENTIAL DAMAGES. THE ADMINISTRATIVE AGENT SHALL NOT
BE RESPONSIBLE OR LIABLE TO ANY BANK, THE BORROWER OR ANY OTHER PERSON OR ENTITY
FOR ANY PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES WHICH MAY BE ALLEGED AS A
RESULT OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, OR ANY OF THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
SECTION 7.07 Payee of Note Treated as Owner. The Administrative Agent
may deem and treat the payee of any Note as the owner thereof for all purposes
hereof unless and until a written notice of the assignment or transfer thereof
shall have been filed with the Administrative Agent and the provisions of
Section 9.07(c) have been satisfied. Any requests, authority or consent of any
Person who at the time of making such request or giving such authority or
consent is the holder of any Note shall be conclusive and binding on any
subsequent holder, transferee or assignee of that Note or of any Note or Notes
issued in exchange therefor or replacement thereof.
SECTION 7.08 Non-Reliance on Administrative Agent and Other Banks.
Each Bank agrees that it has, independently and without reliance on the
Administrative Agent or any other Bank, and based on such documents and
information as it has deemed appropriate, made its own credit analysis of the
Borrower and decision to enter into this Agreement and that it will,
independently and without reliance upon the Administrative Agent or any other
Bank, and based
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on such documents and information as it shall deem appropriate at the time,
continue to make its own analysis and decisions in taking or not taking action
under this Agreement or any of the other Loan Documents. The Administrative
Agent shall not be required to keep itself (or any Bank) informed as to the
performance or observance by the Borrower of this Agreement or any of the other
Loan Documents or any other document referred to or provided for herein or
therein or to inspect the properties or books of the Borrower or any other
Person. Except for notices, reports and other documents and information
expressly required to be furnished to the Banks by the Administrative Agent
hereunder or under the other Loan Documents, the Administrative Agent shall not
have any duty or responsibility to provide any Bank with any credit or other
information concerning the affairs, financial condition or business of the
Borrower or any other Person (or any of their Affiliates) which may come into
the possession of the Administrative Agent.
SECTION 7.09 Failure to Act. Except for action expressly required of
the Administrative Agent hereunder or under the other Loan Documents, the
Administrative Agent shall in all cases be fully justified in failing or
refusing to act hereunder and thereunder unless it shall receive further
assurances to its satisfaction by the Banks of their indemnification obligations
under Section 7.05 against any and all liability and expense which may be
incurred by the Administrative Agent by reason of taking, continuing to take, or
failing to take any such action.
SECTION 7.10 Resignation or Removal of Administrative Agent. Subject
to the appointment and acceptance of a successor Administrative Agent as
provided below, the Administrative Agent may resign at any time by giving notice
thereof to the Banks and the Borrower and the Administrative Agent may be
removed at any time with or without cause by the Required Banks. Upon any such
resignation or removal, the Required Banks shall have the right to appoint a
successor Administrative Agent. If no successor Administrative Agent shall have
been so appointed by the Required Banks and shall have accepted such appointment
within thirty (30) days after the retiring Administrative Agent's notice of
resignation or the Required Banks' removal of the retiring Administrative Agent,
then the retiring Administrative Agent may, on behalf of the Banks, appoint a
successor Administrative Agent. Any successor Administrative Agent shall be a
bank that has a combined capital and surplus of at least $500,000,000. 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 hereunder. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article VII shall continue in
effect for its benefit in respect of any actions taken or omitted to be taken by
it while it was acting as the Administrative Agent hereunder.
ARTICLE VIII.
CHANGE IN CIRCUMSTANCES; COMPENSATION
SECTION 8.01 Basis for Determining Interest Rate Inadequate or
Unfair. If on or prior to the first day of any Interest Period:
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(a) the Administrative Agent determines that deposits in Dollars (in the
applicable amounts) are not being offered in the relevant market for such
Interest Period, or
(b) the Required Banks advise the Administrative Agent that the London
Interbank Offered Rate as determined by the Administrative Agent will not
adequately and fairly reflect the cost to such Banks of funding the relevant
type of Fixed Rate Loans for such Interest Period,
the Administrative Agent shall forthwith give notice thereof to the Borrower and
the Banks, whereupon until the Administrative Agent notifies the Borrower that
the circumstances giving rise to such suspension no longer exist, the
obligations of the Banks to make Euro-Dollar Loans specified shall be suspended.
Unless the Borrower notifies the Administrative Agent at least two (2) Domestic
Business Days before the date of any Borrowing of Euro-Dollar Loans for which a
Notice of Borrowing has previously been given that it elects not to borrow on
such date, such Borrowing shall instead be made as a Base Rate Borrowing.
SECTION 8.02 Illegality. If, after the date hereof, the adoption of
any Applicable Law, or any change in any existing or future Applicable Law, or
any change in the interpretation or administration thereof by any Governmental
Authority (any such event being referred to as a "Change of Law"), or compliance
by any Bank (or its Lending Office) with any request or directive (whether or
not having the force of law) of any Governmental Authority shall make it
unlawful or impossible for any Bank (or its Lending Office) to make, maintain or
fund its Euro-Dollar Loans and such Bank shall so notify the Administrative
Agent, the Administrative Agent shall forthwith give notice thereof to the other
Banks and the Borrower, whereupon until such Bank notifies the Borrower and the
Administrative Agent that the circumstances giving rise to such suspension no
longer exist, the obligation of such Bank to make Euro-Dollar Loans shall be
suspended. Before giving any notice to the Administrative Agent pursuant to this
Section, such Bank shall designate a different Lending Office if such
designation will avoid the need for giving such notice and will not, in the
judgment of such Bank, be otherwise disadvantageous to such Bank. If such Bank
shall determine that it may not lawfully continue to maintain and fund any of
its outstanding Euro-Dollar Loans to maturity and shall so specify in such
notice, the Borrower shall immediately prepay in full the then outstanding
principal amount of each Euro-Dollar Loan of such Bank, together with accrued
interest thereon and any amount due such Bank pursuant to Section 8.05(a).
Concurrently with prepaying each such Euro-Dollar Loan, the Borrower shall
borrow a Base Rate Loan in an equal principal amount from such Bank (on which
interest and principal shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and such Bank shall make such a Base Rate
Loan.
SECTION 8.03 Increased Cost and Reduced Return. (a) If after the date
hereof, a Change of Law or compliance by any Bank (or its Lending Office) with
any request or directive (whether or not having the force of law) of any
Authority:
(i) shall subject any Bank (or its Lending Office) to any tax, duty or
other charge with respect to its Euro-Dollar Loans, its Notes or its
obligation to make Euro-Dollar Loans, or shall change the basis of taxation
of payments to any Bank (or its Lending Office) of the principal of or
interest on its Euro-Dollar Loans or any other amounts due under this
Agreement in respect of its Euro-Dollar Loans or its obligation to make
Euro-Dollar Loans (except for changes in the rate of tax on the overall net
income
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of such Bank or its Lending Office imposed by the jurisdiction in which
such Bank's principal executive office or Lending Office is located); or
(ii) shall impose, modify or deem applicable any reserve, special
deposit or similar requirement (including, without limitation, any such
requirement imposed by the Board of Governors of the Federal Reserve
System, but excluding, with respect to any Euro-Dollar Loan, any such
requirement included in an applicable Euro-Dollar Reserve Percentage)
against assets of, deposits with or for the account of, or credit extended
by, any Bank (or its Lending Office); or
(iii) shall impose on any Bank (or its Lending Office) or the London
interbank market any other condition affecting its Euro-Dollar Loans, its
Notes or its obligation to make Euro-Dollar Loans;
and the result of any of the foregoing is to increase the cost to such Bank (or
its Lending Office) of making or maintaining any Euro-Dollar Loan, or to reduce
the amount of any sum received or receivable by such Bank (or its Lending
Office) under this Agreement or under its Notes with respect thereto, by an
amount deemed by such Bank to be material, then, within fifteen (15) days after
demand by such Bank (with a copy to the Administrative Agent), the Borrower
shall pay to such Bank such additional amount or amounts as will compensate such
Bank for such increased cost or reduction.
(b) If any Bank shall have determined that after the date hereof the
adoption of any Applicable Law regarding capital adequacy, or any change in any
existing or future Applicable Law, or any change in the interpretation or
administration thereof, or compliance by any Bank (or its Lending Office) with
any request or directive regarding capital adequacy (whether or not having the
force of law) of any Governmental Authority, has or would have the effect of
reducing the rate of return on such Bank's capital as a consequence of its
obligations hereunder to a level below that which such Bank could have achieved
but for such adoption, change or compliance (taking into consideration such
Bank's policies with respect to capital adequacy) by an amount deemed by such
Bank to be material, then from time to time, within fifteen (15) days after
demand by such Bank, the Borrower shall pay to such Bank such additional amount
or amounts as will compensate such Bank for such reduction.
(c) Each Bank will promptly notify the Borrower and the Administrative
Agent of any event of which it has knowledge, occurring after the date hereof,
which will entitle such Bank to compensation pursuant to this Section and will
designate a different Lending Office if such designation will avoid the need
for, or reduce the amount of, such compensation and will not, in the judgment of
such Bank, be otherwise disadvantageous to such Bank. A certificate of any Bank
claiming compensation under this Section and setting forth the additional amount
or amounts to be paid to it hereunder shall be conclusive in the absence of
manifest error. In determining such amount, such Bank may use any reasonable
averaging and attribution methods.
(d) The provisions of this Section 8.03 shall be applicable with respect to
any Participant, Assignee or other Transferee, and any calculations required by
such provisions shall be made based upon the circumstances of such Participant,
Assignee or other Transferee.
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SECTION 8.04 Base Rate Loans Substituted for Affected Euro-Dollar
Loans. If (i) the obligation of any Bank to make or maintain Euro-Dollar Loans
has been suspended pursuant to Section 8.02 or (ii) any Bank has demanded
compensation under Section 8.03, and the Borrower shall, by at least five (5)
Euro-Dollar Business Days' prior notice to such Bank through the Administrative
Agent, have elected that the provisions of this Section shall apply to such
Bank, then, unless and until such Bank notifies the Borrower that the
circumstances giving rise to such suspension or demand for compensation no
longer apply:
(a) all Loans which would otherwise be made by such Bank as Euro-Dollar
Loans shall be made instead as Base Rate Loans (in all cases interest and
principal on such Loans shall be payable contemporaneously with the related
Euro-Dollar Loans of the other Banks), and
(b) after each of its Euro-Dollar Loans has been repaid, all payments of
principal which would otherwise be applied to repay such Euro-Dollar Loans shall
be applied to repay its Base Rate Loans instead.
In the event that the Borrower shall elect that the provisions of this Section
shall apply to any Bank, the Borrower shall remain liable for, and shall pay to
such Bank as provided herein, all amounts due such Bank under Section 8.03 in
respect of the period preceding the date of conversion of such Bank's Loans
resulting from the Borrower's election.
SECTION 8.05 Compensation. Upon the request of any Bank, delivered to
the Borrower and the Administrative Agent, the Borrower shall pay to such Bank
such amount or amounts as shall compensate such Bank for any loss, cost or
expense incurred by such Bank as a result of:
(a) any payment or prepayment (pursuant to Section 2.09, Section 2.10,
Section 8.02 or otherwise) of a Euro-Dollar Loan or a Money Market Loan on a
date other than the last day of an Interest Period for such Euro-Dollar Loan or
Money Market Loan, as the case may be;
(b) any failure by the Borrower to prepay a Euro-Dollar Loan or a Money
Market Loan on the date for such prepayment specified in the relevant notice of
prepayment hereunder;
(c) any failure by the Borrower to borrow a Euro-Dollar Loan on the date
for the Euro-Dollar Borrowing of which such Euro-Dollar Loan is a part specified
in the applicable Notice of Borrowing delivered pursuant to Section 2.02; or
(d) any failure by the Borrower to borrow a Money Market Loan (with respect
to which the Borrower has accepted a Money Market Quote) on the date for the
Money Market Borrowing of which such Money Market Loan is a part specified in
the applicable Money Market Quote Request delivered pursuant to Section 2.03;
such compensation to include, without limitation, an amount equal to the excess,
if any, of (x) the amount of interest which would have accrued on the amount so
paid or prepaid or not prepaid or borrowed for the period from the date of such
payment, prepayment or failure to prepay or borrow to the last day of the then
current Interest Period for such Euro-Dollar Loan (or, in the case of a failure
to prepay or borrow, the Interest Period for such Euro-Dollar Loan which would
have commenced on the date of such failure to prepay or borrow) at the
applicable rate of interest for such Euro-Dollar Loan provided for herein over
(y) the amount of interest (as
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reasonably determined by such Bank) such Bank would have paid on deposits in
Dollars of comparable amounts having terms comparable to such period placed with
it by leading banks in the London interbank market.
ARTICLE IX.
MISCELLANEOUS
SECTION 9.01 Notices. All notices, requests and other communications
to any party hereunder shall be in writing (including facsimile transmission or
similar writing) and shall be given to such party at its address or telecopy
number set forth on the signature pages hereof or such other address or telecopy
number as such party may hereafter specify for the purpose by notice to each
other party. Each such notice, request or other communication shall be effective
(i) if given by telecopier, when such telecopy is transmitted to the telecopy
number specified in this Section and the telecopy machine used by the sender
provides a written confirmation that such telecopy has been so transmitted or
receipt of such telecopy transmission is otherwise confirmed, (ii) if given by
mail, seventy-two (72) hours after such communication is deposited in the mails
with first class postage prepaid, addressed as aforesaid, and (iii) if given by
any other means, when delivered at the address specified in this Section;
provided that notices to the Administrative Agent under Article II or Article
VIII shall not be effective until received.
SECTION 9.02 No Waivers. No failure or delay by the Administrative
Agent or any Bank in exercising any right, power or privilege hereunder or under
any Note or other Loan Document shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 9.03 Expenses; Documentary Taxes; Indemnification.
(a) The Borrower shall pay (i) all out-of-pocket expenses of the
Administrative Agent, including fees and disbursements of special counsel for
the Administrative Agent, in connection with the preparation of this Agreement
and the other Loan Documents (subject to such limitations as are set forth in
the Administrative Agent's Letter Agreement, any waiver or consent hereunder or
thereunder or any amendment hereof or thereof or any Default or alleged Default
hereunder or thereunder and (ii) if a Default occurs, all out-of-pocket expenses
incurred by the Administrative Agent or any Bank, including fees and
disbursements of counsel, in connection with such Default and collection and
other enforcement proceedings resulting therefrom, including out-of-pocket
expenses incurred in enforcing this Agreement and the other Loan Documents.
(b) The Borrower shall indemnify the Administrative Agent and each Bank
against any transfer taxes, documentary taxes, assessments or charges made by
any Authority by reason of the execution and delivery of this Agreement or the
other Loan Documents.
(c) The Borrower shall indemnify the Administrative Agent, the Banks and
each Affiliate thereof and their respective directors, officers, employees and
agents from, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or
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result from any actual or proposed use by the Borrower of the proceeds of any
extension of credit by any Bank hereunder or breach by the Borrower of this
Agreement or any other Loan Document or from investigation, litigation
(including, without limitation, any actions taken by the Administrative Agent or
any of the Banks to enforce this Agreement or any of the other Loan Documents)
or other proceeding (including, without limitation, any threatened investigation
or proceeding) relating to the foregoing, and the Borrower shall reimburse the
Administrative Agent and each Bank, and each Affiliate thereof and their
respective directors, officers, employees and agents, upon demand for any
expenses (including, without limitation, legal fees) incurred in connection with
any such investigation or proceeding; but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
SECTION 9.04 Setoffs; Sharing of Set-Offs.
(a) The Borrower hereby grants to each Bank, as security for the full and
punctual payment and performance of the obligations of the Borrower under this
Agreement, a continuing lien on and security interest in all deposits and other
sums credited by or due from such Bank to the Borrower or subject to withdrawal
by the Borrower; and regardless of the adequacy of any collateral or other means
of obtaining repayment of such obligations, each Bank may at any time upon or
after the occurrence of any Event of Default, and without notice to the
Borrower, set off the whole or any portion or portions of any or all such
deposits and other sums against such obligations, whether or not any other
Person or Persons could also withdraw money therefrom.
(b) Each Bank agrees that if it shall, by exercising any right of set-off
or counterclaim or otherwise, receive payment of a proportion of the aggregate
amount of principal and interest owing with respect to the Syndicated Notes held
by it which is greater than the proportion received by any other Bank in respect
of the aggregate amount of all principal and interest owing with respect to the
Syndicated Notes held by such other Bank, the Bank receiving such
proportionately greater payment shall purchase such participations in the
Syndicated Notes held by the other Banks owing to such other Banks, and/or such
other adjustments shall be made, as may be required so that all such payments of
principal and interest with respect to the Syndicated Notes held by the Banks
owing to such other Banks shall be shared by the Banks pro rata; provided that
(i) nothing in this Section shall impair the right of any Bank to exercise any
right of set-off or counterclaim it may have and to apply the amount subject to
such exercise to the payment of indebtedness (including, without limitation,
Money Market Loans) of the Borrower other than its indebtedness under the
Syndicated Notes, and (ii) if all or any portion of such payment received by the
purchasing Bank is thereafter recovered from such purchasing Bank, such purchase
from each other Bank shall be rescinded and such other Bank shall repay to the
purchasing Bank the purchase price of such participation to the extent of such
recovery together with an amount equal to such other Bank's ratable share
(according to the proportion of (x) the amount of such other Bank's required
repayment to (y) the total amount so recovered from the purchasing Bank) of any
interest or other amount paid or payable by the purchasing Bank in respect of
the total amount so recovered. The Borrower agrees, to the fullest extent it may
effectively do so under Applicable Law, that any holder of a participation in a
Syndicated Note, whether or not acquired pursuant to the foregoing arrangements,
may exercise rights of set-off or counterclaim and other rights with respect to
such participation as fully as if such holder of a participation were a direct
creditor of the Borrower in the amount of such participation.
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SECTION 9.05 Amendments and Waivers.
(a) Any provision of this Agreement, the Notes or any other Loan Documents
may be amended or waived if, but only if, such amendment or waiver is in writing
and is signed by the Borrower and the Required Banks (and, if the rights or
duties of the Administrative Agent are affected thereby, by the Administrative
Agent); provided that no such amendment or waiver shall, unless signed by all
the Banks, (i) change the Commitment of any Bank or subject any Bank to any
additional obligation, (ii) change the principal of or reduce the rate of
interest on any Loan or any fees hereunder, (iii) change the date fixed for any
payment of principal of or interest on any Loan or any fees hereunder, (iv)
reduce the amount of principal, interest or fees due on any date fixed for the
payment thereof, (v) change the percentage of the Commitments or of the
aggregate unpaid principal amount of the Notes, or the percentage of Banks,
which shall be required for the Banks or any of them to take any action under
this Section or any other provision of this Agreement, (vi) change the manner of
application of any payments made under this Agreement or the Notes, (vii)
release or substitute all or any substantial part of the collateral (if any)
held as security for the Loans, or (viii) release any guaranty given to support
payment of the Loans.
(b) The Borrower will not solicit, request or negotiate for or with respect
to any proposed waiver or amendment of any of the provisions of this Agreement
unless each Bank shall be informed thereof by the Borrower and shall be afforded
an opportunity of considering the same and shall be supplied by the Borrower
with sufficient information to enable it to make an informed decision with
respect thereto. Executed or true and correct copies of any waiver or consent
effected pursuant to the provisions of this Agreement shall be delivered by the
Borrower to each Bank forthwith following the date on which the same shall have
been executed and delivered by the requisite percentage of Banks. The Borrower
will not, directly or indirectly, pay or cause to be paid any remuneration,
whether by way of supplemental or additional interest, fee or otherwise, to any
Bank (in its capacity as such) as consideration for or as an inducement to the
entering into by such Bank of any waiver or amendment of any of the terms and
provisions of this Agreement unless such remuneration is concurrently paid, on
the same terms, ratably to all such Banks.
SECTION 9.06 Margin Stock Collateral. Each of the Banks represents to
the Administrative Agent and each of the other Banks that it in good faith is
not, directly or indirectly (by negative pledge or otherwise), relying upon any
Margin Stock as collateral in the extension or maintenance of the credit
provided for in this Agreement.
SECTION 9.07 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors and assigns;
provided that the Borrower may not assign or otherwise transfer any of its
rights under this Agreement.
(b) Any Bank may at any time sell to one or more Persons (each a
"Participant") participating interests in any Loan owing to such Bank, any Note
held by such Bank, any Commitment hereunder or any other interest of such Bank
hereunder. In the event of any such sale by a Bank of a participating interest
to a Participant, such Bank's obligations under this Agreement shall remain
unchanged, such Bank shall remain solely responsible for the
- -49-
performance thereof, such Bank shall remain the holder of any such Note for all
purposes under this Agreement, and the Borrower and the Administrative Agent
shall continue to deal solely and directly with such Bank in connection with
such Bank's rights and obligations under this Agreement. In no event shall a
Bank that sells a participation be obligated to the Participant to take or
refrain from taking any action hereunder except that such Bank may agree that it
will not (except as provided below), without the consent of the Participant,
agree to (i) the change of any date fixed for the payment of principal of or
interest on the related Loan or Loans, (ii) the change of the amount of any
principal, interest or fees due on any date fixed for the payment thereof with
respect to the related Loan or Loans, (iii) the change of the principal of the
related Loan or Loans, (iv) any change in the rate at which either interest is
payable thereon or (if the Participant is entitled to any part thereof) any fee
is payable hereunder from the rate at which the Participant is entitled to
receive interest or such fee (as the case may be) in respect of such
participation, (v) the release or substitution of all or any substantial part of
the collateral (if any) held as security for the Loans, or (vi) the release of
any guaranty given to support payment of the Loans. Each Bank selling a
participating interest in any Loan, Note, Commitment or other interest under
this Agreement shall, within ten (10) Domestic Business Days of such sale,
provide the Borrower and the Administrative Agent with written notification
stating that such sale has occurred and identifying the Participant and the
interest purchased by such Participant. The Borrower agrees that each
Participant shall be entitled to the benefits of Article VIII with respect to
its participation in Loans outstanding from time to time.
(c) Upon written notice to the Borrower delivered at least 1 Business Day
prior to the proposed date of assignment, any Bank may at any time assign to one
or more banks or financial institutions (each an "Assignee") all, or a
proportionate part of all, of its rights and obligations under this Agreement,
the Notes and the other Loan Documents, and such Assignee shall assume all such
rights and obligations, pursuant to an Assignment and Acceptance in the form
attached hereto as Exhibit J, executed by such Assignee, such transferor Bank
and the Administrative Agent (and, in the case of: (i) an Assignee that is not
then a Bank or an Affiliate of a Bank; and (ii) an assignment not made during
the existence of a Default, by the Borrower); provided that (i) no interest may
be sold by a Bank pursuant to this paragraph (c) unless the Assignee shall agree
to assume ratably equivalent portions of the transferor Bank's Commitment, (ii)
the amount of the Commitment of the assigning Bank being assigned pursuant to
such assignment (determined as of the effective date of the assignment) shall be
equal to or greater than $5,000,000, (iii) no interest may be sold by a Bank
pursuant to this paragraph (c) to any Assignee that is not then a Bank or an
Affiliate of a Bank without the consent of the Borrower, which consent shall not
be unreasonably withheld, provided that the Borrower's consent shall not be
necessary with respect to any assignment made during the existence of a Default
and (iv) no interest may be sold by a Bank pursuant to this paragraph (c) to any
Assignee that is not then a Bank or an Affiliate of a Bank, without the consent
of the Administrative Agent, which consent shall not be unreasonably withheld,
provided, that although the Administrative Agent's consent may not be necessary
with respect to an Assignee that is then a Bank or an Affiliate of a Bank, no
such assignment shall be effective until the conditions set forth in the
following sentence are satisfied. Upon (A) execution of the Assignment and
Acceptance by such transferor Bank, such Assignee, the Administrative Agent and
(if applicable) the Borrower, (B) delivery of an executed copy of the Assignment
and Acceptance to the Borrower and the Administrative Agent, (C) payment by such
Assignee to such transferor Bank of an amount equal to the purchase price agreed
between such transferor Bank and such Assignee, and (D) payment by the assigning
Bank of a processing and recordation fee of (1) $1,000 if the Assignee is a
Bank, an Affiliate of a Bank, or a Related Fund
- -50-
of a Bank, or (2) $3,500 if the Assignee is not a Bank, an Affiliate of a Bank,
or a Related Fund of a Bank, to the Administrative Agent, such Assignee shall
for all purposes be a Bank party to this Agreement and shall have all the rights
and obligations of a Bank under this Agreement (including, without limitation,
the rights of a Bank under Section 2.03) to the same extent as if it were an
original party hereto with a Commitment as set forth in such instrument of
assumption, and the transferor Bank shall be released from its obligations
hereunder to a corresponding extent, and no further consent or action by the
Borrower, the Banks or the Administrative Agent shall be required. Upon the
consummation of any transfer to an Assignee pursuant to this paragraph (c), the
transferor Bank, the Administrative Agent and the Borrower shall make
appropriate arrangements so that, if required, a new Note is issued to each of
such Assignee and such transferor Bank.
(d) Subject to the provisions of Section 9.08, the Borrower authorizes each
Bank to disclose to any Participant, Assignee or other transferee (each a
"Transferee") and any prospective Transferee any and all financial and other
information in such Bank's possession concerning the Borrower which has been
delivered to such Bank by the Borrower pursuant to this Agreement or which has
been delivered to such Bank by the Borrower in connection with such Bank's
credit evaluation prior to entering into this Agreement.
(e) No Transferee shall be entitled to receive any greater payment under
Section 8.03 than the transferor Bank would have been entitled to receive with
respect to the rights transferred, unless such transfer is made with the
Borrower's prior written consent or by reason of the provisions of Section 8.02
or 8.03 requiring such Bank to designate a different Lending Office under
certain circumstances or at a time when the circumstances giving rise to such
greater payment did not exist.
(f) Anything in this Section 9.07 to the contrary notwithstanding, any Bank
may assign and pledge all or any portion of the Loans and/or obligations owing
to it to any Federal Reserve Bank or the United States Treasury as collateral
security pursuant to Regulation A of the Board of Governors of the Federal
Reserve System and Operating Circular issued by such Federal Reserve Bank,
provided that any payment in respect of such assigned Loans and/or obligations
made by the Borrower to the assigning and/or pledging Bank in accordance with
the terms of this Agreement shall satisfy the Borrower's obligations hereunder
in respect of such assigned Loans and/or obligations to the extent of such
payment. No such assignment shall release the assigning and/or pledging Bank
from its obligations hereunder.
SECTION 9.08 Confidentiality. Each Bank agrees to exercise its best
efforts to keep any information delivered or made available by the Borrower to
it which is clearly indicated to be confidential information, confidential from
anyone other than persons employed or retained by such Bank who are or are
expected to become engaged in evaluating, approving, structuring or
administering the Loans; provided, however, that nothing herein shall prevent
any Bank from disclosing such information (i) to any other Bank, (ii) upon the
order of any court or administrative agency, (iii) upon the request or demand of
any regulatory agency or authority having jurisdiction over such Bank, (iv)
which has been publicly disclosed, (v) to the extent reasonably required in
connection with any litigation to which the Administrative Agent, any Bank or
their respective Affiliates may be a party, (vi) to the extent reasonably
required in connection with the exercise of any remedy hereunder, (vii) to such
Bank's legal counsel and independent auditors and (viii) to any actual or
proposed Participant, Assignee or other
-51-
Transferee of all or part of its rights hereunder which has agreed in writing to
be bound by the provisions of this Section 9.08.
SECTION 9.09 Representation by Banks. Each Bank hereby represents that
it is a commercial lender or financial institution which makes loans in the
ordinary course of its business and that it will make its Loans hereunder for
its own account in the ordinary course of such business; provided, however,
that, subject to Section 9.07, the disposition of the Note or Notes held by that
Bank shall at all times be within its exclusive control.
SECTION 9.10 Obligations Several. The obligations of each Bank
hereunder are several, and no Bank shall be responsible for the obligations or
commitment of any other Bank hereunder. Nothing contained in this Agreement and
no action taken by the Banks pursuant hereto shall be deemed to constitute the
Banks to be a partnership, an association, a joint venture or any other kind of
entity. The amounts payable at any time hereunder to each Bank shall be a
separate and independent debt, and each Bank shall be entitled to protect and
enforce its rights arising out of this Agreement or any other Loan Document and
it shall not be necessary for any other Bank to be joined as an additional party
in any proceeding for such purpose.
SECTION 9.11 Survival of Certain Obligations. Sections 8.03(a),
8.03(b), 8.05 and 9.03, and the obligations of the Borrower thereunder, shall
survive, and shall continue to be enforceable notwithstanding, the termination
of this Agreement and the Commitments and the payment in full of the principal
of and interest on all Loans.
SECTION 9.12 Georgia Law. This Agreement and each Note shall be
construed in accordance with and governed by the law of the State of Georgia.
SECTION 9.13 Severability. In case any one or more of the provisions
contained in this Agreement, the Notes or any of the other Loan Documents should
be invalid, illegal or unenforceable in any respect, the validity, legality and
enforceability of the remaining provisions contained herein and therein shall
not in any way be affected or impaired thereby and shall be enforced to the
greatest extent permitted by law.
SECTION 9.14 Interest. In no event shall the amount of interest due or
payable hereunder or under the Notes exceed the maximum rate of interest allowed
by Applicable Law, and in the event any such payment is inadvertently made to
any Bank by the Borrower or inadvertently received by any Bank, then such excess
sum shall be credited as a payment of principal, unless the Borrower shall
notify such Bank in writing that it elects to have such excess sum returned
forthwith. It is the express intent hereof that the Borrower not pay and the
Banks not receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may legally be paid by the Borrower under Applicable Law.
SECTION 9.15 Interpretation. No provision of this Agreement or any of
the other Loan Documents shall be construed against or interpreted to the
disadvantage of any party hereto by any court or other governmental or judicial
authority by reason of such party having or being deemed to have structured or
dictated such provision.
SECTION 9.16 Consent to Jurisdiction. The Borrower (a) submits to
personal jurisdiction in the State of Georgia, the courts thereof and the United
States District Courts sitting therein, for the enforcement of this Agreement,
the Notes and the other Loan Documents,
-52-
(b) waives any and all personal rights under the law of any jurisdiction to
object on any basis (including, without limitation, inconvenience of forum) to
jurisdiction or venue within the State of Georgia for the purpose of litigation
to enforce this Agreement, the Notes or the other Loan Documents, and (c) agrees
that service of process may be made upon it in the manner prescribed in Section
9.01 for the giving of notice to the Borrower. Nothing herein contained,
however, shall prevent the Administrative Agent from bringing any action or
exercising any rights against any security and against the Borrower personally,
and against any assets of the Borrower, within any other state or jurisdiction.
SECTION 9.17 Counterparts. This Agreement may be signed in any number
of counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
-53-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed, under seal, by their respective authorized officers as of the day
and year first above written.
DARDEN RESTAURANTS, INC.
By:/s/ William R. White, III
----------------------------------------
Title: Vice President and Treasurer
-------------------------------------
Darden Restaurants, Inc.
6100 Lake Ellenor Drive
Orlando, Florida 32809
Attention: William R. White, III,
Vice President and Treasurer
Telecopy number: (407) 245-6677
Telephone number: (407) 245-5142
with a copy to:
Darden Restaurants, Inc.
6000 Lake Ellenor Drive
Orlando, Florida 32809
Attention: James O. McIntosh, Esq.
Telecopy number: (407) 245-4844
Telephone number: (407) 245-5318
-54-
COMMITMENT WACHOVIA BANK, N.A., as Administrative
- ---------- Agent and as a Bank
$60,000,000
By:/s/ Kenneth Washington
----------------------------------------
Title: Vice President
-------------------------------------
Lending Office
--------------
Wachovia Bank, N.A.
Syndication Services
191 Peachtree Street, N.E., (27th Floor)
Atlanta, Georgia 30303-1757
Attention: Lynn Smith
Supervisor, Syndicated Loan Services
Telecopy number: (404) 332-5144
Telephone number: (404) 332-6971
With a copy to:
Wachovia Corporate Services, Inc.
191 Peachtree Street, N.E. (29th Floor)
Atlanta, Georgia 30303
Attention: Kenneth Washington
Vice President
Telecopy number: (404) 332-5016
Telephone number: (404) 332-1044
-55-
COMMITMENT SUNTRUST BANK, CENTRAL FLORIDA, N.A.
- ---------- as Syndication Agent and as a Bank
$52,500,000
By: /s/ Vipul H. Patel
---------------------------------------
Title: Vice President
------------------------------------
Lending Office
SunTrust Bank, Central Florida, N.A.
200 South Orange Ave.
Orlando, Florida 32801
Attention: Michelle Wood
Telecopy number: (407) 237-5342
Telephone number: (407) 237-6070
With a copy to :
SunTrust Bank
201 Fourth Avenue North
Nashville, Tennessee 37219
Attention: Vipul H. Patel
Vice President
Telecopy number: (615) 748-5269
Telephone number: (615) 748-4322
-56-
COMMITMENT FIRST UNION NATIONAL BANK, as
- ---------- Documentation Agent and as a Bank
$52,500,000
By:/s/Charlie S. Beverly
--------------------------------
Title: Senior Vice President
-----------------------------
Lending Office
--------------
First Union National Bank
800 North Magnolia Avenue, Suite 800
Orlando, Florida 32803
Attention: Charles S. Beverly
Senior Vice President
Telecopy number: (407) 649-5757
Telephone number: (407) 649-5959
-57-
COMMITMENT BANK OF AMERICA, N.A., as Co-Agent and as
- ---------- a Bank
$45,000,000
By:/s/ Richard G. Parkhurst, Jr.
-------------------------------------
Title: Managing Director
----------------------------------
Lending Office
--------------
Bank of America, N.A.
100 North Tryon Street, 17th Floor
Charlotte, North Carolina 28255
Attention: Richard G. Parkhurst, Jr.
Managing Director
Telecopy number: (704) 386-3271
Telephone number: (704) 386-1828
-58-
COMMITMENT FLEET NATIONAL BANK
- ----------
$30,000,000
By:/s/ Thomas J. Bullard
-------------------------------
Title: Vice President
----------------------------
Lending Office
--------------
Fleet National Bank
One Federal Street, Mail Stop: MA OF 0320
Boston, Massachusetts 02110
Attention: Thomas J. Bullard
Vice President
Telecopy number: (617) 346-0689
Telephone number: (617) 346-0146
-59-
COMMITMENT WELLS FARGO BANK, N.A.
- ----------
$30,000,000
By:/s/ Scott D. Bjelde
--------------------------------
Title: Vice President
------------------------------
Lending Office
--------------
Wells Fargo Bank, N.A.
1445 Ross Avenue, 4th Floor
Dallas, Texas 75202
Attention: Scott D. Bjelde
U.S. Corporate Banking
Telecopy number: (214) 969-0371
Telephone number: (214) 740-1327
-60-
COMMITMENT COMERICA BANK
- ----------
$30,000,000
By:/s/ Martin G. Ellis
--------------------------------
Title: Vice President
-----------------------------
Lending Office
Comerica Bank
500 Woodward Avenue
Detroit, Michigan 48226
Attention: Martin G. Ellis
Vice President, U.S. Banking - East Group
Telecopy number: (313) 222-3330
Telephone number: (313) 222-6122
TOTAL COMMITMENTS:
- -----------------
$300,000,000
-61-
SCHEDULE 3.01
Calculation of Upfront Fees
Committed Amount (in millions) Fee (bps)
- ------------------------------------ ------------------------------------------
$ $55.00 10
- ------------------------------------ ------------------------------------------
- ------------------------------------ ------------------------------------------
45.00 8
- ------------------------------------ ------------------------------------------
- ------------------------------------ ------------------------------------------
30.00 6
- ------------------------------------ ------------------------------------------
Average Upfront Fees (bps): 8.5
Total Upfront Fees (dollars): $255,000.00
SCHEDULE 4.02
Material Subsidiaries
Material Subsidiary Incorporated In % of Total Revenues* % of Total Assets*
- ------------------- --------------- ------------------- -----------------
GMRI, Inc. Florida 84.05% 75.92%
- ---------------------
*For the Fiscal Quarter ended August 29,1999.
SCHEDULE 4.08
Environmental Matters
NONE
SCHEDULE 4.09
ERISA Disclosure
NONE
SCHEDULE 4.14
Description of Debt and Liens
Darden Restaurants, Inc.
Consolidated Total Debt Calculation
As of October 29, 1999
(In thousands)
a) Interest Bearing Debt:
10 year, 6.375 % unsecured notes, due Feb 2006 $150,000
20 year, 7.125% unsecured debentures, due Feb 2016 $100,000
ESOP Loan, variable rate, due Dec 2018 $ 57,450
Short term commercial paper $ 55,000
Other, fixed rate debt $ 7,540
--------
Subtotal $369,990
(b) Deferred Purchase Price Obligations 0
(c) Consolidated Capitalized Lease Obligations 0
(d) Liens (1) $121
(e) Banker's Acceptances 0
(f) Consolidated Operating Lease Obligations $ 52,850 (2)
Capitalization Factor 6.25
--------
Product $330,313
(g) Net Obligations on Hedging Agreements 0
(h) Guarantees and Contingent Liabilities (3) $9,625
--------
Total $710,049
========
Notes:
(1) See Exhibit A
(2) For four fiscal quarters immediately preceding closing date
(i.e. Annual period ended Aug.29, 1999)
(3) See Exhibit B
Exhibit A
Mechanics and Materials Liens
Location Lienor Date Amount
BB #3007
Gwinnet County, GA Aamco Paving 9/16/99 $12,767.85
" " Sigman & Sigman 6/15/99 $ 6,590.00
" " Moreland Altobelli 4/20/99 $ 8,592.50
" " Peachtree Masonry 7/09/99 $ 8,806.31
Simpson Trucking &
" " Grading, Inc. 8/17/99 $15,638.08
" " Allied Ready Mix 8/03/99 $ 449.44
" " Neff Rental 4/20/99 $13,665.59
" " Apex Supply 5/21/99 $17,486.50
OG #1039
N. Richland Hills, TX Payless Cashways 4/13/99 $ 5,103.65
OG #1119
Irving, TX Payless Cashways 4/13/99 $17,698.22
" " Fabulous Finishes 3/10/99 $13,750.00
----------
Total $120,548.14
Exhibit B
DARDEN RESTAURANTS, INC.
GUARANTEES AND CONTINGENT LIABILITIES
ENDING OCTOBER 1999
- --------------------- -------------------- ------------------------ ------------------------------- ------------------
GUARANTEE OR TOTAL
CONCEPT PROPERTY STATUS CONTINGENT LIABILITY LIABILITY
CASA GALLARDO Casa #13 Lease assigned to El Annual rent years: 1-5 is $ 35,750
Charlotte, NC Torito. $30,000,
Term of original lease 6-10 is $33,000, 11-15 is
is $36,300
10/80 through 9/00. and 16-20 is $39,000.
End of 10/99
we are in
20th year.
CASA GALLARDO Casa #16 Lease assigned to El Annual rent years: 1-8 is $392,917
Charlotte, NC Torito. $75,000,
Term of original lease 9-16 is $90,000 and 17-20 is
is $115,000.
4/83 through 3/03. End of 10/99 we are in 17th
year.
CASA GALLARDO Casa #23 Lease assigned to El Rent increases $1,000 per yr $281,000
Winston Salem, NC Torito. until 16th lease yr then
Term of original lease $2,000.
is End of 10/99 we are in 17th
4/83 through 4/04. year.
17th lease year rent is
$58,000
CASA GALLARDO Casa #25 Lease assigned to El Rent increases 4% per year $733,927
Daytona Beach, FL Torito. Term of through end of term.
original End of 10/99 we are in 18th
lease is 4/82 through year.
4/08. 18th lease year rent is
$72,790
CASA GALLARDO Casa #30 Lease assigned to El Annual rent years: 1-5 is $270,833
Tampa, FL Torito. $50,000,
Term of original lease 6-10 is $55,000,11-15 is
is $60,000
8/83 through 12/03. and 16-20 is $65,000.
End of 10/99
we are in
17th year.
CASA GALLARDO Casa #34 Lease assigned to El $108,000 per year. $270,000
Chesterfield, MO Torito. Term of End of 10/99 we are in 18th
original year.
lease is 5/82 through
4/02.
CASA GALLARDO Casa #35 Leass assigned to El $35,000 per year. $113,750
Fairview Hts., IL Torito. Term of End of 10/99 we are in 17th
original year
lease is 7/82 through
1/03.
CASA GALLARDO Casa #42 Lease assigned to El Annual rent years: 1-5 is $138,750
Evansville, IN Torito. $28,000,
Term of original lease 6-10 is $35,000, 11-15 is
is $40,000 and 16-20 is $45,000.
11/82 through 11/02. End of 10/99 we are in 17th
year.
------------------
CASA GALLARDO TOTAL $2,236,927
==========
RED LOBSTER Unit #242 Land lease assigned to $30,000 per year $ 222,500
Nashville, TN Allied Partners through 3/30/07
RED LOBSTER Unit #527 Land lease assigned to $236,456 per year $2,719,244
Norwalk, CA Country Harvest Buffet through 4/27/11
Restaurants
RED LOBSTER Unit #584 Land lease assigned to $86,240 per year $ 172,480
South Portland, ME Miramar Restaurant through 10/13/01
Association
RED LOBSTER Unit #626 Land lease assigned to $103,500 per year $ 276,000
Boca Raton, FL ABC Liquor through 6/30/02
---------
RED LOBSTER TOTAL $3,390,224
==========
GUARANTEE OR TOTAL
CONCEPT PROPERTY STATUS CONTINGENT LIABILITY LIABILITY
CHINA COAST Unit #6025 Lease assigned to Annual rent years: 1-5 is $ 935,333
Indianapolis, IN Landry's Seafood. $80,000,
Term of original lease 6-10 is $92,000, 11-15 is
is $105,800
10/93 through 3/09. End of 10/99 we are in 6th
year.
CHINA COAST Unit #6013 Lease assigned to $79,350 per year $ 297,563
Cuyahoga Falls, Landry's Seafood. through 7/06/03
Ohio End of 10/99 we are in 6th ____________
year.
CHINA COAST TOTAL $1,232,896
==========
OLIVE GARDEN Unit #1164 Subleased to Art $220,800 per year $0
Ft. Lauderdale, FL Institute lease terminated 5/99
for $12,800 per month
through expiration
date of
original lease of 5/99.
OLIVE GARDEN Unit #1308 Land lease assigned to Annual rent years: $1,411,570
Tustin, Ca Hof's Hut Restaurants 1-5 is $84,000, 6-10 is
Term of original lease $96,600,
01/92 through 01/12 11 - 15 is $111,090 and
16 - 20 is $127,754
End of 10/99 we are in 8th
year.
OLIVE GARDEN Unit #1400 Land lease assigned to $287,352 per year $1,005,732
Kew Gardens, NY Medisys Ventures, Inc. through 4/25/03
End of 10/99
we are in
7th year.
OLIVE GARDEN Unit #1019 Land lease subleased to $72,000 per year $ 156,000
Hollywood, FL Morrison's Restaurant through 12/01.
Term of original lease End of 10/99
we are in 13th 01/86 through 12/01
year. ___________
OLIVE GARDEN TOTAL $2,573,302
==========
DARRYLS Unit #1871 Property was sold and $7,500 per year $ 71,875
Birmingham, AL lease assigned to New through 5/09
Orleans Cafe. ___________
DARRYLS TOTAL $ 71,875
=======
TOTAL GUARANTEES AND CONTINGENT
LIABILITIES FOR US PROPERTIES $9,505,224
==========
- --------------------- -------------------- ------------------------ ------------------------------- ------------------
GUARANTEE OR TOTAL
CONCEPT PROPERTY STATUS CONTINGENT LIABILITY LIABILITY
OLIVE GARDEN #4307 Subleased to $212,810 per year $ 141,873
CANADA Toronto, Ont Prime Restaurant until 06/30/2000
Group, Inc
#4306 Subleased to $224,090 per year $ 0
Thornhill, Ont Grissanti's Restaurants until 05/31/2000
per C. Mescher,
lease has been
terminated ___________
TOTAL GUARANTEES AND CONTINGENT
LIABILITIES FOR CDN PROPERTIES
(CDN $) $ 141,873
0.6812
Exchange Rate
TOTAL GUARANTEES AND CONTINGENT
LIABILITIES FOR CDN PROPERTIES
(US $) $ 96,644
Inave Loan $ 23,241
-------
TOTAL GUARANTEES AND CONTINGENT
LIABILITIES $9,625,109
==========
SCHEDULE 4.15
Litigation Disclosure
NONE
Page 1 of 1
EXHIBIT A
SYNDICATED NOTE
$____________ Atlanta, Georgia
October 29, 1999
For value received, DARDEN RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Lending Office, the principal sum of
________________ ______________________________ and No/100 Dollars
($____________), or such lesser amount as shall equal the unpaid principal
amount of each Syndicated Loan made by the Bank to the Borrower pursuant to the
Credit Agreement referred to below, on the dates and in the amounts provided in
the Credit Agreement. The Borrower promises to pay interest on the unpaid
principal amount of this Syndicated Note on the dates and at the rate or rates
provided for in the Credit Agreement. Interest on any overdue principal of and,
to the extent permitted by law, overdue interest on the principal amount hereof
shall bear interest at the Default Rate, as provided for in the Credit
Agreement. All such payments of principal and interest shall be made in lawful
money of the United States in Federal or other immediately available funds at
the office of Wachovia Bank, N.A., 191 Peachtree Street, N.E., Atlanta, Georgia
30303, or such other address as may be specified from time to time pursuant to
the Credit Agreement.
All Syndicated Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make, or any error of the Bank in making, any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This Syndicated Note is one of the Syndicated Notes referred to in the
Credit Agreement dated as of October 29, 1999 among the Borrower, the banks
listed on the signature pages thereof and their successors and assigns, and
Wachovia Bank, N.A., as Administrative Agent (as the same may be amended or
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment and the repayment hereof and
the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Syndicated Note or any portion
hereof is collected by law or through an attorney at law, to pay all reasonable
costs of collection, including, without limitation, reasonable attorneys' fees.
A - 1
IN WITNESS WHEREOF, the Borrower has caused this Syndicated Note to be duly
executed under seal, by its duly authorized officer as of the day and year first
above written.
DARDEN RESTAURANTS, INC.
By:
--------------------------------------
Title:
--------------------------------------
A - 2
Syndicated Note (cont'd)
SYNDICATED LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Type of Interest Amount of Principal Maturity Notation
Date Loan* Rate Loan Repaid Date Made By
- ---- ----- ---- ---- ------ ---- -------
- ----------------------------------------
* I.e., a Base Rate or Euro-Dollar Loan.
A-3
EXHIBIT B
MONEY MARKET NOTE
$300,000,000 Atlanta, Georgia
October 29, 1999
For value received, DARDEN RESTAURANTS, INC., a Florida corporation (the
"Borrower"), promises to pay to the order of
(the "Bank"), for the account of its Lending Office, the principal sum of THREE
HUNDRED MILLION AND NO/100 DOLLARS ($300,000,000), or such lesser amount as
shall equal the unpaid principal amount of each Money Market Loan made by the
Bank to the Borrower pursuant to the Credit Agreement referred to below, on the
dates and in the amounts provided in the Credit Agreement. The Borrower promises
to pay interest on the unpaid principal amount of this Money Market Note on the
dates and at the rate or rates provided for in the Credit Agreement. Interest on
any overdue principal of and, to the extent permitted by law, overdue interest
on the principal amount hereof shall bear interest at the Default Rate, as
provided for in the Credit Agreement. All such payments of principal and
interest shall be made in lawful money of the United States in Federal or other
immediately available funds at the office of Wachovia Bank, N.A., 191 Peachtree
Street, N.E., Atlanta, Georgia 30303, or such other address as may be specified
from time to time pursuant to the Credit Agreement.
All Money Market Loans made by the Bank, the respective maturities thereof,
the interest rates from time to time applicable thereto and all repayments of
the principal thereof shall be recorded by the Bank and, prior to any transfer
hereof, endorsed by the Bank on the schedule attached hereto, or on a
continuation of such schedule attached to and made a part hereof; provided that
the failure of the Bank to make, or any error of the Bank in making, any such
recordation or endorsement shall not affect the obligations of the Borrower
hereunder or under the Credit Agreement.
This Money Market Note is one of the Money Market Notes referred to in the
Credit Agreement dated as of October 29, 1999 among the Borrower, the banks
listed on the signature pages thereof and their successors and assigns, and
Wachovia Bank, N.A., as Administrative Agent (as the same may be amended or
modified from time to time, the "Credit Agreement"). Terms defined in the Credit
Agreement are used herein with the same meanings. Reference is made to the
Credit Agreement for provisions for the prepayment and the repayment hereof and
the acceleration of the maturity hereof.
The Borrower hereby waives presentment, demand, protest, notice of demand,
protest and nonpayment and any other notice required by law relative hereto,
except to the extent as otherwise may be expressly provided for in the Credit
Agreement.
The Borrower agrees, in the event that this Money Market Note or any
portion hereof is collected by law or through an attorney at law, to pay all
reasonable costs of collection, including, without limitation, reasonable
attorneys' fees.
B - 1
IN WITNESS WHEREOF, the Borrower has caused this Money Market Note to be
duly executed under seal, by its duly authorized officer as of the day and year
first above written.
DARDEN RESTAURANTS, INC.
By:
----------------------------------------
Title:
-------------------------------------
B - 2
Money Market Note (cont'd)
MONEY MARKET LOANS AND PAYMENTS OF PRINCIPAL
Amount of
Interest Amount of Principal Maturity Notation
Date Rate Loan Repaid Date Made By
- ---- ---- ---- ------ ---- -------
B - 3
EXHIBIT C
OPINION OF
COUNSEL FOR THE BORROWER
[Dated as provided in Section 3.01 of the Credit Agreement]
------------
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303
Dear Sirs:
I have acted as counsel for Darden Restaurants, Inc. (the "Borrower") in my
capacity as Associate General Counsel of the Borrower, in connection with the
Credit Agreement (the "Credit Agreement") dated as of October 29, 1999 among the
Borrower, the banks listed on the signature pages thereof, and Wachovia Bank,
N.A., as Administrative Agent. Terms defined in the Credit Agreement are used
herein as therein defined.
I have examined originals or copies, certified or otherwise identified to
my satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as I have deemed necessary or advisable for purposes of this
opinion. I have assumed for purposes of my opinions set forth below that the
execution and delivery of the Credit Agreement by each Bank and by the
Administrative Agent have been duly authorized by each Bank and by the
Administrative Agent. As to questions of fact relating to the Borrower material
to such opinions, I have relied upon representations of appropriate officers of
the Borrower.
Upon the basis of the foregoing, I am of the opinion that:
1. The Borrower is a corporation duly incorporated, validly existing
and in good standing under the laws of Florida and has all corporate powers
required to carry on its business as now conducted.
2. The execution, delivery and performance by the Borrower of the Credit
Agreement and the Notes (i) are within the Borrower's corporate powers, (ii)
have been duly authorized by all necessary corporate action, (iii) require no
action by or in respect of, or filing with, any governmental body, agency or
official, (iv) do not contravene, or constitute a default under, any provision
of applicable law or regulation or of the certificate of incorporation or
by-laws of the Borrower or of any agreement, judgment, injunction, order, decree
or other instrument which to my knowledge is binding upon the Borrower and (v)
to my knowledge, except as provided in the Credit Agreement, do not result in
the creation or imposition of any Lien on any asset of the Borrower or any of
its Subsidiaries.
C - 1
3. The Credit Agreement constitutes a valid and binding agreement of the
Borrower, enforceable against the Borrower in accordance with its terms, and the
Notes constitute valid and binding obligations of the Borrower, enforceable in
accordance with their respective terms, except as such enforceability may be
limited by: (i) bankruptcy, insolvency or similar laws affecting the enforcement
of creditors' rights generally and (ii) general principles of equity.
4. To my knowledge, there is no action, suit or proceeding pending, or
threatened, against or affecting the Borrower or any of its Subsidiaries before
any court or arbitrator or any governmental body, agency or official in which
there is a reasonable possibility of an adverse decision which could materially
adversely affect the business, Consolidated financial position or Consolidated
results of operations of the Borrower and its Consolidated Subsidiaries,
considered as a whole, or which in any manner questions the validity or
enforceability of the Credit Agreement or any Note.
5. Each of the Borrower's Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation, and has all corporate powers and all material governmental
licenses, authorizations, consents and approvals required to carry on its
business as now conducted.
6. Neither the Borrower nor any of its Subsidiaries is an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
7. Neither the Borrower nor any of its Subsidiaries is a "holding
company", or a "subsidiary company" of a "holding company", or an "affiliate" of
a "holding company" or of a "subsidiary company" of a "holding company", as such
terms are defined in the Public Utility Holding Company Act of 1935, as amended.
I am qualified to practice in the State of Florida and do not purport to be
an expert on any laws other than the laws of the United States and the State of
Florida, and this opinion is rendered only with respect to such laws. I have
made no independent investigation of the laws of any other jurisdiction.
I express no opinion as to the laws of any jurisdiction wherein any Bank
may be located which limits rates of interest which may be charged or collected
by such Bank other than in paragraph 3 with respect to the State of Florida.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you or any Assignee, Participant
or other Transferee under the Credit Agreement, without my prior written
consent.
Respectfully,
C - 2
EXHIBIT D
OPINION OF
WOMBLE CARLYLE SANDRIDGE & RICE, PLLC, SPECIAL COUNSEL
FOR THE ADMINISTRATIVE AGENT
[Date as provided in Section 3.01 of the Credit Agreement]
------------
To the Banks and the Administrative Agent
Referred to Below
c/o Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention: Loan Syndications
Dear Sirs:
We have participated in the preparation of the Credit Agreement (the
"Credit Agreement") dated as of October 29, 1999 among Darden Restaurants, Inc.,
a Florida corporation (the "Borrower"), the banks listed on the signature pages
thereof (the "Banks"), and Wachovia Bank, N.A., as Administrative Agent (the
"Administrative Agent"), and have acted as special counsel for the
Administrative Agent for the purpose of rendering this opinion pursuant to
Section 3.01(d) of the Credit Agreement. Terms defined in the Credit Agreement
are used herein as therein defined.
This opinion letter is limited by, and is in accordance with, the January
1, 1992 edition of the Interpretive Standards applicable to Legal Opinions to
Third Parties in Corporate Transactions adopted by the Legal Opinion Committee
of the Corporate and Banking Law Section of the State Bar of Georgia which
Interpretive Standards are incorporated herein by this reference.
We have examined originals or copies, certified or otherwise identified to
our satisfaction, of such documents, corporate records, certificates of public
officials and other instruments and have conducted such other investigations of
fact and law as we have deemed necessary or advisable for purposes of this
opinion.
Upon the basis of the foregoing, and assuming the due authorization,
execution and delivery of the Credit Agreement and each of the Notes by or on
behalf of the Borrower, we are of the opinion that the Credit Agreement
constitutes a valid and binding agreement of the Borrower and each Note
constitutes valid and binding obligations of the Borrower, in each case
enforceable in accordance with its terms except as: (i) the enforceability
thereof may be affected by bankruptcy, insolvency, reorganization, fraudulent
conveyance, voidable preference, moratorium or similar laws applicable to
creditors' rights or the collection of debtors' obligations generally; (ii)
rights of acceleration and the availability of equitable remedies may be limited
by equitable principles of general applicability; and (iii) the enforceability
of certain of the remedial, waiver and other provisions of the Credit Agreement
and the Notes may be further limited by the laws of the State of Georgia;
provided, however, such additional laws do not, in our opinion, substantially
interfere with the practical realization of the benefits expressed in the Credit
Agreement and the Notes, except for the economic consequences of any procedural
delay which may result from such laws.
In giving the foregoing opinion, we express no opinion as to the effect (if
any) of any law of any jurisdiction except the State of Georgia. We express no
opinion as to the effect of the compliance or noncompliance of the
Administrative Agent or any of the Banks with any state or federal laws or
regulations applicable to the Administrative Agent or any of the Banks by reason
of the legal or regulatory status or the nature of the business of the
Administrative Agent or any of the Banks.
This opinion is delivered to you in connection with the transaction
referenced above and may only be relied upon by you and any Assignee,
Participant or other Transferee under the Credit Agreement without our prior
written consent.
Very truly yours,
WOMBLE CARLYLE SANDRIDGE & RICE,
a Professional Limited Liability Company
By:
-----------------------------------------
D - 2
EXHIBIT E
MONEY MARKET QUOTE REQUEST
[Date]
To: Wachovia Bank, N.A.,
as Administrative Agent
From: Darden Restaurants, Inc.
Re: Money Market Quote Request
Pursuant to Section 2.03 of the Credit Agreement (the "Credit Agreement")
dated as of October 29, 1999, among Darden Restaurants, Inc., the banks listed
on the signature pages thereof, and Wachovia Bank, N.A., as Administrative
Agent, we hereby give notice that we request Money Market Quotes for the
following proposed Money Market Borrowing(s)
Date of Borrowing:
Principal Amount* Interest Period**
Terms used herein have the meanings assigned to them in the Credit Agreement.
DARDEN RESTAURANTS, INC.
By:
-------------------------------------
Title:
-----------------------------------
- -----------------------------
* Amount must be $5,000,000 or a larger multiple of $1,000,000.
** A period of 7 to 180 days.
E - 1
EXHIBIT F
MONEY MARKET QUOTE
Wachovia Bank, N.A.,
as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Attention:
Re: Money Market Quote to Darden Restaurants, Inc.(the "Borrower")
This Money Market Quote is given in accordance with Section 2.03(c)(ii) of
the Credit Agreement (the "Credit Agreement") dated as of October 29, 1999,
among Darden Restaurants, Inc., the banks listed on the signature pages thereof
(the "Banks"), and Wachovia Bank, N.A., as Administrative Agent. Terms defined
in the Credit Agreement are used herein as defined therein.
In response to the Borrower's invitation dated ____________ __, ____, we
hereby make the following Money Market Quote on the following terms:
1. Quoting Bank:
2. Person to contact at Quoting Bank:
3. Date of Borrowing:(1)
4. We hereby offer to make Money Market Loan(s) in the following
minimum and maximum principal amounts, for the following Interest Periods and at
the following rates:
Minimum Principal Maximum Principal
Amount (2) Amount (2) Interest Period (3) Interest Rate
------ ------ ---------------- -------------
- -------------------------
(1) As specified in the related Money Market Quote Request.
(2) The principal amount bid for each Interest Period may not exceed the
principal amount requested. Bids must be made for at least $5,000,000
or a larger multiple of $1,000,000.
(3) A period of 7 to 180 days.
F - 1
We understand and agree that the offer(s) set forth above, subject to the
satisfaction of the applicable conditions set forth in the Credit Agreement,
irrevocably obligate(s) us to make the Money Market Loan(s) for which any
offer(s) [is] [are] accepted, in whole or in part (subject to the third sentence
of Section 2.03(e) of the Credit Agreement).
Very truly yours,
[Name of Bank]
Dated: By:
-------------------------------------------
Authorized Officer
F - 2
EXHIBIT G
CLOSING CERTIFICATE
OF
DARDEN RESTAURANTS, INC.
Reference is made to the Credit Agreement(the "Credit Agreement") dated as
of October 29, 1999, among Darden Restaurants, Inc. (the "Borrower"), Wachovia
Bank, N.A., as Administrative Agent and as a Bank, and certain other Banks
listed on the signature pages thereof. Capitalized terms used herein have the
meanings ascribed thereto in the Credit Agreement.
Pursuant to Section 3.01(e) of the Credit Agreement, ___________________,
the duly authorized ____________________ of the Borrower, hereby certifies to
the Administrative Agent and the Banks that: (i) no Default has occurred and is
continuing on the date hereof; and (ii) the representations and warranties of
the Borrower contained in Article IV of the Credit Agreement are true on and as
of the date hereof.
Certified as of the 29th day of October, 1999.
DARDEN RESTAURANTS, INC.
Name:
------------------------------------
Title:
-----------------------------------
EXHIBIT H
DARDEN RESTAURANTS, INC.
SECRETARY'S CERTIFICATE
The undersigned, _____________, _______ Secretary of Darden Restaurants,
Inc., a Florida corporation (the "Borrower"), hereby certifies that he has been
duly elected, qualified and is acting in such capacity and that, as such, he is
familiar with the facts herein certified and is duly authorized to certify the
same, and hereby further certifies, in connection with the Credit Agreement
dated as of October 29, 1999 among the Borrower, Wachovia Bank, N.A., as
Administrative Agent and as a Bank, and certain other Banks listed on the
signature pages thereof, that:
1. Attached hereto as Exhibit A is a complete and correct copy of the
Certificate of Incorporation of the Borrower as in full force and effect on the
date hereof as certified by the Secretary of State of the State of Florida, the
Borrower's state of incorporation.
2. Attached hereto as Exhibit B is a complete and correct copy of the
Bylaws of the Borrower as in --------- full force and effect on the date hereof.
3. Attached hereto as Exhibit C is a complete and correct copy of the
resolutions duly adopted by the Board of Directors of the Borrower on
___________ __, 19__ approving, and authorizing the execution and delivery of,
the Credit Agreement, the Notes (as such term is defined in the Credit
Agreement) and the other Loan Documents (as such term is defined in the Credit
Agreement) to which the Borrower is a party. Such resolutions have not been
repealed or amended and are in full force and effect, and no other resolutions
or consents have been adopted by the Board of Directors of the Borrower in
connection therewith.
4. ____________, who as ________________________ of the Borrower signed
the Credit Agreement, the Notes and the other Loan Documents to which the
Borrower is a party, was duly elected, qualified and acting as such at the time
he signed the Credit Agreement, the Notes and other Loan Documents to which the
Borrower is a party, and his signature appearing on the Credit Agreement, the
Notes and the other Loan Documents to which the Borrower is a party is his
genuine signature.
IN WITNESS WHEREOF, the undersigned has hereunto set his hand as of the
29th day of October, 1999.
Name:
-------------------------------------
Title:
H - 1
EXHIBIT I
FORM OF OFFICER'S COMPLIANCE CERTIFICATE
The undersigned, on behalf of DARDEN RESTAURANTS, INC., a corporation
organized under the laws of Florida (the "Borrower"), hereby certifies to
Wachovia Bank, N.A. (the "Administrative Agent"), and the Banks (as defined in
the Credit Agreement described below) as follows:
1. This Certificate is delivered to you pursuant to Section 5.01(b) of
the Credit Agreement, dated as of October 29, 1999 (the "Credit Agreement"),
among the Borrower, the Banks listed therein, and the Administrative Agent.
Terms defined in the Credit Agreement are used herein as therein defined.
2. I have reviewed the financial statements of the Borrower and its
Subsidiaries dated as of _________________ and for the _____________ period[s]
then ended and such statements fairly present the financial condition of the
Borrower and its Subsidiaries as of the dates indicated and the results of its
operations and cash flows for the period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, the Notes and the
related Loan Documents and have made, or caused to be made under my supervision,
a review in reasonable detail of the transactions and the condition of the
Borrower and its Subsidiaries during the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not
disclosed the existence during or at the end of such accounting period of any
condition or event that constitutes a Default, nor do I have any knowledge of
the existence of any such condition or event as at the date of this Certificate
[except, {if such condition or event existed or exists, describe the nature and
period of existence thereof and what action the Company has taken, is taking and
proposes to take with respect thereto}].
4. The Pricing Level and the Applicable Margin are set forth on the
attached Schedule 1, the Borrower and its Subsidiaries are in compliance with
the covenant contained in Section 5.20 of the Credit Agreement as shown on such
Schedule 1, and the Borrower and its Subsidiaries are in compliance with the
other covenants and restrictions contained in Article V of the Loan Agreement.
5. Schedule 2 sets forth a list of Material Subsidiaries and the
percent of total revenues of the Borrower and its Subsidiaries and percent of
total assets of the Borrower and its Subsidiaries which each such Material
Subsidiary represents.
WITNESS the following signature as of the ______ day of ____________,
______.
DARDEN RESTAURANTS, INC.
By:
---------------------------------
Name:
Title:
I -1
Schedule 1
to
Officer's Compliance Certificate
1. Pricing Level
(a) Debt Rating of the Company's Senior Debt by
(i) S&P ___________
(ii) Moody's ___________
(iii) Duff & Phelps ___________
(b) Pricing Level: ___________
(c) Applicable Margin ___________
2. Ratio of Consolidated Total Debt to Consolidated Total
------------------------------------------------------
Capitalization (Section 5.20)
------------------------------
Ratio of Consolidated Total Debt
to Consolidated Total Capitalization:
(a) Consolidated Total Debt as of the end of the
Fiscal Quarter ending on or immediately
prior to the date hereof: $___________
(b) Consolidated Total Capitalization as of the
end of the Fiscal Quarter ending on or
immediately prior to the date hereof: $___________
(c) Ratio of (a) to (b): ___________
(d) Maximum Ratio permitted: 0.55 to 1.00
I - 2
Schedule 2
to
Officer's Compliance Certificate
Material Subsidiary Incorporated In % of Total Revenues % of Total Assets
------------------- --------------- ------------------- -----------------
I - 3
EXHIBIT J
ASSIGNMENT AND ACCEPTANCE
Dated ________________ __, ____
Reference is made to the Credit Agreement dated as of October 29, 1999
(together with all amendments and modifications thereto, the "Credit Agreement")
among Darden Restaurants, Inc., a Florida corporation (the "Borrower"), the
Banks (as defined in the Credit Agreement), and Wachovia Bank, N.A., as
Administrative Agent (the "Administrative Agent"). Terms defined in the Credit
Agreement are used herein with the same meaning.
_____________________________________________________ (the "Assignor") and
_____________________________________________ (the "Assignee") agree as follows:
1. The Assignor hereby sells and assigns to the Assignee, without
recourse to the Assignor, and the Assignee hereby purchases and assumes from the
Assignor, a ______% interest in and to all of the Assignor's rights and
obligations under the Credit Agreement as of the Effective Date (as defined
below) (including, without limitation, a ______% interest (which on the
Effective Date hereof is $_______________) in the Assignor's Commitment and a
______% interest (which on the Effective Date hereof is $_______________) in the
Syndicated Loans owing to the Assignor [and a ___% interest in the Money Market
Loans owing to the Assignor] and a ______% interest in the Syndicated Note held
by the Assignor (which on the Effective Date hereof is $__________________).
2. The Assignor (i) has delivered written notice to the Borrower of the
assignment to be made pursuant to this Assignment and Acceptance, as required
pursuant to Section 9.07(c) of the Credit Agreement, (ii) makes no
representation or warranty other than as set forth in clause (i) of this
paragraph and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with the Credit
Agreement, any other instrument or document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of the Credit Agreement, any other Loan Document or any other instrument or
document furnished pursuant thereto, other than that it is the legal and
beneficial owner of the interest being assigned by it hereunder, that such
interest is free and clear of any adverse claim and that as of the date hereof
its Commitment (without giving effect to assignments thereof which have not yet
become effective) is $_________________ and the aggregate outstanding principal
amount of Syndicated Loans [and Money Market Loans] owing to it (without giving
effect to assignments thereof which have not yet become effective) is
$_________________; (iii) makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
performance or observance by the Borrower of any of its obligations under the
Credit Agreement, any other Loan Document or any other instrument or document
furnished pursuant thereto; and (iv) attaches the Note[s] referred to in
paragraph 1 above and requests that the Administrative Agent exchange such
Note[s] as follows: [a new Syndicated Note dated _______________, ____ in the
principal amount of _________________ payable to the order of the Assignee] [new
Syndicated Notes as follows: a Syndicated Note dated
J - 1
_________________, ____ in the principal amount of $_______________ payable to
the order of the Assignor and a Syndicated Note dated ______________, ____ in
the principal amount of $______________ payable to the order of the Assignee]
[and a new Money Market Note dated _______, ____ in the principal of $_________
payable to the order of the Assignee].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.12(a) thereof (or any more recent financial statements of the Borrower
delivered pursuant to Section 5.01(a)(i) or (ii) thereof) and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision to enter into this Assignment and Acceptance; (ii) agrees
that it will, independently and without reliance upon the Administrative Agent,
the Assignor or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under the Credit Agreement; (iii) confirms that it
is a bank or financial institution; (iv) appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers under the Credit Agreement as are delegated to the Administrative
Agent by the terms thereof, together with such powers as are reasonably
incidental thereto; (v) agrees that it will perform in accordance with their
terms all of the obligations which by the terms of the Credit Agreement are
required to be performed by it as a Bank; (vi) specifies as its Lending Office
(and address for notices) the office set forth beneath its name on the signature
pages hereof, (vii) represents and warrants that the execution, delivery and
performance of this Assignment and Acceptance are within its corporate powers
and have been duly authorized by all necessary corporate action[, and (viii)
attaches the forms prescribed by the Internal Revenue Service of the United
States certifying as to the Assignee's status for purposes of determining
exemption from United States withholding taxes with respect to all payments to
be made to the Assignee under the Credit Agreement and the Notes or such other
documents as are necessary to indicate that all such payments are subject to
such taxes at a rate reduced by an applicable tax treaty].*
4. The Effective Date for this Assignment and Acceptance shall be
_______________ (the "Effective Date"). Following the execution of this
Assignment and Acceptance, it will be delivered to the Administrative Agent for
execution and acceptance by the Administrative Agent [and to the Borrower for
execution by the Borrower]**.
5. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, (i) the
Assignee shall be a party to the Credit Agreement and, to the extent rights and
obligations have been transferred to it by this Assignment and Acceptance, have
the rights and obligations of a Bank thereunder and (ii) the Assignor shall, to
the extent its rights and obligations have been transferred to the Assignee by
this Assignment and Acceptance, relinquish its rights (other than under Section
8.03 and Section 9.03 of the Credit Agreement) and be released from its
obligations under the Credit Agreement.
6. Upon such execution and acceptance by the Administrative Agent [and
execution by the Borrower]**, from and after the Effective Date, the
Administrative Agent shall make all payments in respect of the interest assigned
hereby to the Assignee. The Assignor and Assignee
- --------------------------------------
* If the Asignee is organized under the laws of a jurisdiction outside
the United States.
** If required under the Credit Agreement.
J - 2
shall make all appropriate adjustments in payments for periods prior to such
acceptance by the Administrative Agent directly between themselves.
J - 3
7. This Assignment and Acceptance shall be governed by, and construed
in accordance with, the laws of the State of Georgia.
[NAME OF ASSIGNOR]
By:
---------------------------------------
Title:
[NAME OF ASSIGNEE]
By:
---------------------------------------
Title:
Lending Office:
[Address]
WACHOVIA BANK, N.A., as Administrative
Agent
By:
----------------------------------------
Title:
[DARDEN RESTAURANTS, INC.]**
By:
----------------------------------------
Title:
J - 4
EXHIBIT K
NOTICE OF BORROWING
----------, ----
Wachovia Bank, N.A., as Administrative Agent
191 Peachtree Street, N.E.
Atlanta, Georgia 30303-1757
Re: Credit Agreement (as amended and modified from time to time, the
"Credit Agreement") dated as of October 29, 1999 by and among Darden
Restaurants, Inc., the Banks from time to time parties thereto, and
Wachovia Bank, N.A., as Administrative Agent
Gentlemen:
Unless otherwise defined herein, capitalized terms used herein shall have
the meanings attributable thereto in the Credit Agreement.
This Notice of Borrowing is delivered to you pursuant to Section 2.02 of
the Credit Agreement.
The Borrower hereby requests a [Euro-Dollar Borrowing][Base Rate Borrowing]
in the aggregate principal amount of $___________ to be made on ________, ____,
and for interest to accrue thereon at the rate established by the Credit
Agreement for [Euro-Dollar Loans] [Base Rate Loans]. The duration of the
Interest Period with respect thereto shall be [1 month] [2 months] [3 months] [6
months].
The Borrower has caused this Notice of Borrowing to be executed and
delivered by its duly authorized officer this ___ day of ____, ____.
DARDEN RESTAURANTS, INC.
By:
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Title:
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