AMENDED AND RESTATED
CREDIT AGREEMENT
among
RYAN'S RESTAURANT GROUP, INC.,
and
FIRE MOUNTAIN RESTAURANTS, INC.,
as Borrowers,
THE DOMESTIC SUBSIDIARIES OF THE PARENT,
as Guarantors,
THE LENDERS IDENTIFIED HEREIN
BANK OF AMERICA, N.A.,
as Administrative Agent
DATED AS OF DECEMBER 20, 2004
BANC OF AMERICA SECURITIES LLC,
as Lead Arranger and Book Manager
================================================================================
(1) A published CUSIP number entitles subscribers (primarily banks and brokers)
of Standard & Poor's CUSIP Service Bureau to obtain the number and associated
CUSIP data from the Bureau whether or not the subscriber is a Lender under the
Credit Agreement. Associated CUSIP data will include the Borrower's name, place
of incorporation, the Administrative Agent's name, the date of the Credit
Agreement, the total amount of the facilities thereunder, and the amount, type
and maturity date of each facility thereunder. CUSIP numbers are unique
identifiers designed to improve accuracy in communications involving a broad
array of financial instruments, whether securities or not, and have no bearing
on the characterization thereof.
TABLE OF CONTENTS
SECTION 1 DEFINITIONS AND ACCOUNTING TERMS.......................................................................1
1.1 Definitions.....................................................................................1
1.2 Computation of Time Periods and Other Definitional Provisions..................................22
1.3 Accounting Terms...............................................................................22
1.4 Letter of Credit Amounts.......................................................................23
SECTION 2 CREDIT FACILITIES.....................................................................................23
2.1 Revolving Loans................................................................................23
2.2 Letters of Credit..............................................................................25
2.3 Swingline Loans Subfacility....................................................................32
2.4 Continuations and Conversions..................................................................33
2.5 Minimum Amounts................................................................................33
2.6 Joint and Several Liability of Borrowers.......................................................34
2.7 Agency of the Parent for Fire Mountain.........................................................35
SECTION 3 GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT..........................................35
3.1 Interest.......................................................................................35
3.2 Place and Manner of Payments; Administrative Agent's Clawback..................................36
3.3 Prepayments....................................................................................37
3.4 Termination and Reduction of Revolving Committed Amount........................................38
3.5 Fees...........................................................................................39
3.6 Payment in full at Maturity....................................................................40
3.7 Computations of Interest and Fees..............................................................40
3.8 Sharing of Payments............................................................................40
3.9 Capital Adequacy...............................................................................41
3.10 Inability To Determine Interest Rate...........................................................42
3.11 Illegality.....................................................................................42
3.12 Requirements of Law............................................................................42
3.13 Taxes..........................................................................................43
3.14 Compensation...................................................................................45
3.15 Evidence of Debt...............................................................................46
SECTION 4 GUARANTY..............................................................................................46
4.1 Guaranty of Payment............................................................................46
4.2 Obligations Unconditional......................................................................46
4.3 Modifications..................................................................................47
4.4 Waiver of Rights...............................................................................47
4.5 Reinstatement..................................................................................48
4.6 Remedies.......................................................................................48
4.7 Limitation of Guaranty.........................................................................48
4.8 Rights of Contribution.........................................................................48
SECTION 5 CONDITIONS PRECEDENT..................................................................................49
5.1 Closing Conditions.............................................................................49
5.2 Conditions to All Extensions of Credit.........................................................51
SECTION 6 REPRESENTATIONS AND WARRANTIES........................................................................52
6.1 Financial Condition............................................................................52
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6.2 No Material Change.............................................................................52
6.3 Organization and Good Standing.................................................................52
6.4 Due Authorization..............................................................................53
6.5 No Conflicts...................................................................................53
6.6 Consents.......................................................................................53
6.7 Enforceable Obligations........................................................................53
6.8 No Default.....................................................................................53
6.9 Ownership......................................................................................54
6.10 Indebtedness...................................................................................54
6.11 Litigation.....................................................................................54
6.12 Taxes..........................................................................................54
6.13 Compliance with Law............................................................................54
6.14 ERISA..........................................................................................54
6.15 Subsidiaries...................................................................................55
6.16 Use of Proceeds................................................................................56
6.17 Government Regulation..........................................................................56
6.18 Environmental Matters..........................................................................56
6.19 Intellectual Property..........................................................................57
6.20 Solvency.......................................................................................58
6.21 Investments....................................................................................58
6.22 Legal Names....................................................................................58
6.23 Disclosure.....................................................................................58
6.24 Licenses, etc..................................................................................58
6.25 No Burdensome Restrictions.....................................................................58
6.26 Collateral Documents...........................................................................58
6.28 Broker's Fees..................................................................................59
6.29 Indebtedness under Note Purchase Agreements....................................................59
SECTION 7 AFFIRMATIVE COVENANTS.................................................................................59
7.1 Information Covenants..........................................................................59
7.2 Financial Covenants............................................................................63
7.3 Preservation of Existence and Franchises.......................................................63
7.4 Books and Records..............................................................................63
7.5 Compliance with Law............................................................................63
7.6 Payment of Taxes, Claims and Other Indebtedness................................................64
7.7 Insurance......................................................................................64
7.8 Maintenance of Property........................................................................64
7.9 Collateral.....................................................................................64
7.10 Use of Proceeds................................................................................64
7.11 Performance of Obligations.....................................................................65
7.12 Additional Credit Parties......................................................................65
7.13 Audits/Inspections.............................................................................65
SECTION 8 NEGATIVE COVENANTS....................................................................................66
8.1 Indebtedness...................................................................................66
8.2 Liens..........................................................................................67
8.3 Nature of Business.............................................................................67
8.4 Consolidation and Merger.......................................................................67
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8.5 Sale or Lease of Assets........................................................................67
8.6 Sale Leasebacks................................................................................68
8.7 Investments....................................................................................68
8.8 Restricted Payments............................................................................68
8.9 Transactions with Affiliates...................................................................69
8.10 Fiscal Year; Organizational Documents..........................................................69
8.11 No Limitations.................................................................................69
8.12 No Other Negative Pledges......................................................................69
8.13 Capital Expenditures...........................................................................69
SECTION 9 EVENTS OF DEFAULT.....................................................................................71
9.1 Events of Default..............................................................................71
9.2 Acceleration; Remedies.........................................................................74
9.3 Allocation of Payments After Event of Default..................................................74
SECTION 10 AGENCY PROVISIONS....................................................................................75
10.1 Appointment and Authority......................................................................75
10.2 Rights as a Lender.............................................................................76
10.3 Exculpatory Provisions.........................................................................76
10.4 Reliance by Administrative Agent...............................................................77
10.5 Delegation of Duties...........................................................................77
10.6 Resignation....................................................................................77
10.7 Non-Reliance on Agents and Other Lenders.......................................................78
10.8 Agents in Their Individual Capacity............................................................78
10.9 Administrative Agent may File Proof of Claims..................................................79
SECTION 11 MISCELLANEOUS........................................................................................79
11.1 Notices; Effectiveness; Electronic Communication...............................................79
11.2 Right of Set-Off...............................................................................81
11.3 Successors and Assigns.........................................................................81
11.4 No Waiver; Cumulative Remedies.................................................................84
11.5 Treatment of Certain Information; Confidentiality..............................................84
11.6 Expenses; Indemnity; Damages Waiver............................................................85
11.7 Amendments, Waivers and Consents...............................................................87
11.8 Counterparts/Telecopy..........................................................................88
11.9 Headings.......................................................................................88
11.10 Defaulting Lender..............................................................................88
11.11 Survival of Indemnification and Representations and Warranties.................................88
11.12 Governing Law; Jurisdiction....................................................................89
11.13 Waiver of Jury Trial; Waiver of Consequential Damages..........................................89
11.14 Payments Set Aside.............................................................................90
11.15 Severability...................................................................................90
11.16 Further Assurances.............................................................................90
11.17 Entirety.......................................................................................90
11.18 Binding Effect; Continuing Agreement...........................................................90
11.19 USA PATRIOT Act Notice.........................................................................91
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SCHEDULES
Schedule 1.1(a) Commitment Percentages
Schedule 1.1(b) Existing Letters of Credit
Schedule 6.15 Subsidiaries
Schedule 8.1(b) Indebtedness
Schedule 8.5(d) Sales of Property
Schedule 10.1(b) Intercreditor Agreement
Schedule 11.1 Notices
EXHIBITS
Exhibit A Form of Notice of Borrowing
Exhibit B Form of Revolving Note
Exhibit C Form of Swingline Loan Request
Exhibit D Form of Swingline Note
Exhibit E Form of Notice of Continuation/Conversion
Exhibit F Form of Officer's Certificate
Exhibit G Form of Joinder Agreement
Exhibit H Form of Assignment Agreement
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AMENDED AND RESTATED
CREDIT AGREEMENT
THIS AMENDED AND RESTATED CREDIT AGREEMENT (this "Credit Agreement"),
is entered into as of December 20, 2004 (amending and restating the Existing
Credit Agreement referred to below) among RYAN'S RESTAURANT GROUP, INC., a South
Carolina corporation (the "Parent"), FIRE MOUNTAIN RESTAURANTS, INC., a Delaware
corporation ("Fire Mountain", together with the Parent, individually a
"Borrower" and collectively the "Borrowers"), each of the Domestic Subsidiaries
of the Parent (individually a "Guarantor" and collectively the "Guarantors"),
the Lenders (as defined herein) and BANK OF AMERICA, N.A., as Administrative
Agent for the Lenders (in such capacity, the "Administrative Agent").
RECITALS
WHEREAS, pursuant to the Credit Agreement dated as of January 28, 2000
(as amended or otherwise modified from time to time, the "Existing Credit
Agreement") among the Borrowers, the Guarantors, each lender party thereto (the
"Existing Lenders") and Bank of America, N.A., as administrative agent, the
Existing Lenders provided a credit facility to the Borrowers;
WHEREAS, the Borrowers and the Guarantors have requested that the
Existing Credit Agreement be amended and restated in its entirety to become
effective and binding on the Borrowers pursuant to the terms hereof, and the
Lenders (including the Existing Lenders) have agreed to amend and restate the
Existing Credit Agreement and provide an amended and restated credit facility to
the Borrowers on the terms and conditions hereinafter set forth.
NOW, THEREFORE, IN CONSIDERATION of the premises and other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties hereto agree as follows:
SECTION 1
DEFINITIONS AND ACCOUNTING TERMS
1.1 DEFINITIONS.
As used herein, the following terms shall have the meanings herein
specified unless the context otherwise requires. Defined terms herein shall
include in the singular number the plural and in the plural the singular:
"Acquisition" by any Person means the acquisition by such
Person of the Capital Stock or all or substantially all of the Property
of another Person, whether or not involving a merger or consolidation
with such Person.
"Additional Credit Party" means each Person that becomes a
Guarantor after the Closing Date, as provided in Section 7.12.
"Adjusted Base Rate" means the Base Rate plus the Applicable
Percentage.
"Adjusted Eurodollar Rate" means the Eurodollar Rate plus the
Applicable Percentage.
"Administrative Agent" shall have the meaning assigned to such
term in the heading hereof, together with any successors and assigns.
"Administrative Agent's Office" means the Administrative
Agent's address and, as appropriate, account as set forth on Schedule
11.1 or such other address or account as the Administrative Agent may
from time to time notify the Parent and the Lenders.
"Administrative Questionnaire" means an Administrative
Questionnaire in a form supplied by the Administrative Agent.
"Affiliate" means, with respect to any Person, any other
Person directly or indirectly controlling (including but not limited to
all directors and officers of such Person), controlled by or under
direct or indirect common control with such Person. A Person shall be
deemed to control a corporation if such Person possesses, directly or
indirectly, the power (a) to vote 10% or more of the securities having
ordinary voting power for the election of directors or trustees of such
corporation or (b) to direct or cause direction of the management and
policies of such corporation, whether through the ownership of voting
securities, by contract or otherwise.
"Agents" means the Administrative Agent and the Collateral
Agent and any successors and assigns in such capacity.
"Applicable Percentage" means, for Revolving Loans, Swingline
Loans, Letter of Credit Fees and Unused Fees, the appropriate
applicable percentages, in each case, corresponding to the Leverage
Ratio in effect as of the most recent Calculation Date as shown below:
Applicable Percentage
For Applicable Percentage For Applicable Percentage
Eurodollar Loans and Base Rate Loans For
Pricing Level Leverage Ratio Letter of Credit Fees Unused Fees
- -------------- ------------------------- ------------------------- -------------------------- -------------------------
I <1.00 to 1.0 0.625% 0.0% 0.125%
- -------------- ------------------------- ------------------------- -------------------------- -------------------------
II <1.50 to 1.0 but 0.75% 0.0% 0.150%
=> 1.00 to 1.0
- -------------- ------------------------- ------------------------- -------------------------- -------------------------
III < 2.0 to 1.0 but 1.0% 0.0% 0.175%
=> 1.50 to 1.0
- -------------- ------------------------- ------------------------- -------------------------- -------------------------
IV => 2.00 to 1.0 1.25% 0.25% 0.225%
- -------------- ------------------------- ------------------------- -------------------------- -------------------------
The Applicable Percentages shall be determined and adjusted
quarterly on the date (each a "Calculation Date") five Business Days
after the date on which the Parent delivers the officer's certificate
in accordance with the provisions of Section 7.1(c); provided that the
initial Applicable Percentages shall be based on Pricing Level III (as
shown above) and shall remain at Pricing Level III until the first
Calculation Date subsequent to December 29, 2004, and, thereafter, the
Applicable Percentages shall be determined by the Leverage Ratio
calculated as of the most recent Calculation Date; and provided further
that if the Parent fails to provide the officer's certificate required
by Section 7.1(c) on or before the date required by Section 7.1(c), the
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Applicable Percentages from such date shall be based on Pricing Level
IV until such time that an appropriate officer's certificate is
provided whereupon the Applicable Percentages shall be determined by
the then current Leverage Ratio. Each Applicable Percentage shall be
effective from one Calculation Date until the next Calculation Date
except as set forth in the previous sentence. Any adjustment in the
Applicable Percentages shall be applicable to all existing Eurodollar
Loans, Base Rate Loans and Letters of Credit as well as any new
Eurodollar Loans or Base Rate Loans made or Letters of Credit issued.
"Approved Fund" means any Fund that is administered or managed
by (a) a Lender, (b) an Affiliate of a Lender or (c) an entity or an
Affiliate of an entity that administers or manages a Lender.
"Arranger" means Banc of America Securities LLC, in its
capacity as lead arranger and book manager.
"Assignment and Assumption" means an assignment and
assumption entered into by a Lender and an Eligible Assignee (with the
consent of any party whose consent is required by Section 11.3(b)), and
accepted by the Administrative Agent, in substantially the form of
Exhibit H or any other form approved by the Administrative Agent.
"Attributable Indebtedness" means, on any date, (a) in respect
of any Capital Lease of any Person, the capitalized amount thereof that
would appear on a balance sheet of such Person prepared as of such date
in accordance with GAAP, (b) in respect of any Synthetic Lease, the
capitalized amount of the remaining lease payments under the relevant
lease that would appear on a balance sheet of such Person prepared as
of such date in accordance with GAAP if such lease were accounted for
as a Capital Lease and (c) in respect of any Securitization Transaction
of any Person, the outstanding principal amount of such financing,
after taking into account reserve accounts and making appropriate
adjustments, determined by the Administrative Agent in its reasonable
judgment.
"Auto-Extension Letter of Credit" has the meaning assigned to
such term in Section 2.2(b)(iii).
"Bank of America" means Bank of America, N.A. and its
successors and assigns.
"Bankruptcy Code" means the Bankruptcy Code in Title 11 of the
United States Code, as amended, modified, succeeded or replaced from
time to time.
"BAS" means Banc of America Securities LLC and its successors
and assigns.
"Base Rate" means for any day a fluctuating rate per annum
equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1% and
(b) the rate of interest in effect for such day as publicly announced
from time to time by Bank of America as its "prime rate." The "prime
rate" is a rate set by Bank of America based upon various factors
including Bank of America's costs and desired return, general economic
conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such
announced rate. Any change in such rate announced by Bank of America
shall take effect at the opening of business on the day specified in
the public announcement of such change.
"Base Rate Loan" means any Loan bearing interest at a rate
determined by reference to the Adjusted Base Rate.
3
"Big R Procurement" means Big R Procurement Company, LLC, a
Delaware limited liability company.
"Borrower" has the meaning assigned to such term in the
preamble hereto.
"Business Day" means any day other than a Saturday, Sunday or
other day on which commercial banks are authorized to close under the
Laws of, or are in fact closed in, the state where the Administrative
Agent's Office is located and, if such day relates to any Eurodollar
Rate Loan, means any such day on which dealings in Dollar deposits are
conducted by and between banks in the London interbank eurodollar
market.
..
"Calculation Date" has the meaning assigned to such term in
the definition of Applicable Percentage.
"Capital Expenditures" means all expenditures of the Credit
Parties and their Subsidiaries which, in accordance with GAAP, would be
classified as capital expenditures, including, without limitation,
Capital Leases.
"Capital Lease" means, as applied to any Person, any lease of
any property (whether real, personal or mixed) by that Person as lessee
which, in accordance with GAAP, is or should be accounted for as a
capital lease on the balance sheet of that Person and the amount of
such obligation shall be the capitalized amount thereof determined in
accordance with GAAP.
"Capital Stock" means (a) in the case of a corporation, all
classes of capital stock of such corporation, (b) in the case of a
partnership, partnership interests (whether general or limited), (c) in
the case of a limited liability company, membership interests and (d)
any other interest or participation that confers on a Person the right
to receive a share of the profits and losses of, or distributions of
assets of, the issuing Person.
"Carryforward Capital Expenditure Basket" means the aggregate,
if any, of (i) all Unused Capital Expenditure Allowance allocated by
the Parent pursuant to Section 8.13(b) for Capital Expenditures in
future fiscal years and (ii) the Unused Restricted Payment Allowance
allocated by the Parent pursuant to Section 8.8(b) for Capital
Expenditures in future fiscal years. Notwithstanding the foregoing, the
Carryforward Capital Expenditures Basket may not be increased in any
fiscal year by more than $10,000,000.
"Carryforward Restricted Payment Basket" means the portion, if
any, of all Unused Capital Expenditure Allowance allocated by the
Parent pursuant to Section 8.13(b) for permitted repurchases of its
Capital Stock in future fiscal years.
"Cash Collateral" and "Cash Collateralize" have the meanings
assigned to such terms in Section 2.2(g).
"Cash Equivalents" means (a) securities issued or directly and
fully guaranteed or insured by the United States of America or any
agency or instrumentality thereof (provided that the full faith and
credit of the United States of America is pledged in support thereof)
having maturities of not more than twelve months from the date of
acquisition, (b) U.S. dollar denominated time and demand deposits and
certificates of deposit of (i) any Lender, (ii) any domestic commercial
4
bank having capital and surplus in excess of $500,000,000 or (iii) any
bank whose short-term commercial paper rating from S&P is at least A-1
or the equivalent thereof or from Moody's is at least P-1 or the
equivalent thereof (any such bank being an "Approved Bank"), in each
case with maturities of not more than 270 days from the date of
acquisition, (c) commercial paper and variable or fixed rate notes
issued by any Approved Bank (or by the parent company thereof) or any
variable rate notes issued by, or guaranteed by, any domestic
corporation rated A-1 (or the equivalent thereof) or better by S&P or
P-1 (or the equivalent thereof) or better by Moody's and maturing
within six months of the date of acquisition, (d) repurchase agreements
with a bank or trust company (including any of the Lenders) or
recognized securities dealer having capital and surplus in excess of
$500,000,000 for direct obligations issued by or fully guaranteed by
the United States of America in which a Credit Party shall have a
perfected first priority security interest (subject to no other Liens)
and having, on the date of purchase thereof, a fair market value of at
least 100% of the amount of the repurchase obligations and (e)
Investments, classified in accordance with GAAP as current assets, in
money market investment programs registered under the Investment
Company Act of 1940, as amended, which are administered by reputable
financial institutions having capital of at least $500,000,000 and the
portfolios of which are limited to Investments of the character
described in the foregoing subdivisions (a) through (d).
"Change in Law" means the occurrence, after the date of this
Credit Agreement, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in any
law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority or
(c) the making or issuance of any request, guideline or directive
(whether or not having the force of law) by any Governmental Authority.
"Change of Control" means, with respect to the Parent, any of
the following: (i) any "person" or "group" (within the meaning of
Section 13(d) or 14(d) of the Exchange Act) has become, directly or
indirectly, the "beneficial owner" (as defined in Rules 13d-3 and 13d-5
under the Exchange Act, except that a Person shall be deemed to have
"beneficial ownership" of all shares that any such Person has the right
to acquire, whether such right is exercisable immediately or only after
the passage of time), by way of merger, consolidation or otherwise, of
30% or more of the Voting Stock of the Parent on a fully-diluted basis,
after giving effect to the conversion and exercise of all outstanding
warrants, options and other securities of the Parent (whether or not
such securities are then currently convertible or exercisable), (ii)
during any period of two consecutive calendar years, individuals who at
the beginning of such period constituted the board of directors of the
Parent cease for any reason to constitute a majority of the directors
of the Parent then in office unless such new directors were elected or
designated by the directors of the Parent who constituted the board of
directors of the Parent at the beginning of such period or such
directors were elected by shareholders to fill vacant seats for
resigning or retiring directors that were not replaced at the time of
such resignation or retirement or (iii) the occurrence of a Change of
Control or Change of Control Event (or any comparable term) under and
as defined in the Note Purchase Agreements or the 2003 Note Purchase
Agreement.
"Closing Date" means the date hereof.
"Code" means the Internal Revenue Code of 1986, as amended,
and any successor statute thereto, as interpreted by the rules and
regulations promulgated thereunder, in each case as in effect from time
to time. References to sections of the Code shall be construed to also
refer to any successor sections.
"Collateral" means a collective reference to the collateral
which is identified in, and at any time will be covered by, the
Collateral Documents.
5
"Collateral Agent" means Bank of America, N.A., in its
capacity as collateral agent for the Lenders, the Noteholders and the
2003 Noteholders under the Intercreditor Agreement and the Pledge
Agreement, together with any successor that becomes such in accordance
with the provisions of the Pledge Agreement and the Intercreditor
Agreement.
"Collateral Documents" means a collective reference to the
Pledge Agreement and such other documents executed and delivered in
connection with the attachment and perfection of the Collateral Agent's
security interests, for the benefit of the Secured Parties, in the
Capital Stock of each Domestic and First-Tier Foreign Subsidiary of a
Credit Party, including without limitation, UCC financing statements.
"Commitments" means (a) the commitment of each Lender with
respect to the Revolving Committed Amount, (b) the commitment of the
Issuing Lender with respect to the Letter of Credit Sublimit and (c)
the commitment of the Swingline Lender with respect to the Swingline
Committed Amount.
"Committed Borrowing" means a borrowing consisting of
simultaneous Loans of the same type and, in the case of Eurodollar
Loans, having the same Interest Period made by each of the Lenders
pursuant to Section 2.1.
"Consolidated Net Worth" means, as of any date with respect to
the Credit Parties and their Subsidiaries on a consolidated basis,
shareholders' equity or net worth, as determined in accordance with
GAAP.
"Credit Documents" means a collective reference to this Credit
Agreement, the Notes, any Joinder Agreement, the Collateral Documents,
the Issuer Documents, the Fee Letter, the Intercreditor Agreement and
all other related agreements and documents issued or delivered
hereunder or thereunder or pursuant hereto or thereto, in each case as
the same may be amended, modified, restated, supplemented, extended,
renewed or replaced from time to time, and "Credit Document" means any
one of them.
"Credit Parties" means the Borrowers and the Guarantors and
"Credit Party" means any one of them.
"Credit Party Obligations" means, without duplication, all
advances to, and debts, liabilities, obligations, covenants and duties
of, any Credit Party arising under any Credit Document or otherwise
with respect to any Loan or Letter of Credit, whether direct or
indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising and
including interest and fees that accrue after the commencement by or
against any Credit Party of any proceeding under any Debtor Relief Laws
naming such Person as the debtor in such proceeding, regardless of
whether such interest and fees are allowed claims in such proceeding.
Credit Party Obligations shall also include any Hedging Agreement
between any Credit Party and any Lender or Affiliate of a Lender.
"Debtor Relief Laws" means the Bankruptcy Code of the United
States, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws
of the United States or other applicable jurisdictions from time to
time in effect and affecting the rights of creditors generally.
6
"Default" means any event, act or condition which with notice
or lapse of time, or both, would constitute an Event of Default.
"Default Rate" has the meaning assigned to such term in
Section 3.1(b).
"Defaulting Lender" means, at any time, any Lender that (a)
has failed to make a Loan or purchase a Participation Interest required
pursuant to the terms of this Credit Agreement when due (but only for
so long as such Loan is not made or such Participation Interest is not
purchased), (b) other than as set forth in the preceding clause (a),
has failed to pay to any Agent or any Lender an amount owed by such
Lender pursuant to the terms of this Credit Agreement when due (but
only for so long as such amount has not been paid) or (c) has been
deemed insolvent or has become subject to a bankruptcy or insolvency
proceeding or with respect to which (or with respect to any assets of
which) a receiver, trustee or similar official has been appointed.
"Dollars" and "$" means dollars in lawful currency of the
United States of America.
"Domestic Subsidiaries" means all direct and indirect
Subsidiaries of the Parent that are domiciled, incorporated or
organized under the laws of any state of the United States or the
District of Columbia (or have any material assets located in the United
States or the District of Columbia) whether existing as of the date
hereof or hereafter created or acquired.
"Earn Out Obligations" means, with respect to an Acquisition,
all obligations of the Parent or any Subsidiary to make earn out or
other contingency payments pursuant to the documentation relating to
such Acquisition. The amount of any Earn Out Obligation shall be deemed
to be the aggregate liability in respect thereof as recorded on the
balance sheet of the Parent and its Subsidiaries in accordance with
GAAP.
"EBITDA" means, for any period with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, an amount equal
to the sum of (a) Net Income for such period (excluding the effect of
any extraordinary or other non-recurring gains or non-cash losses) plus
(b) an amount which, in the determination of Net Income for such period
has been deducted for (i) Interest Expense for such period, (ii) total
Federal, state, foreign or other income taxes for such period and (iii)
all depreciation and amortization for such period, all as determined in
accordance with GAAP.
"EBITR" means, for any period with respect to the Credit
Parties and their Subsidiaries on a consolidated basis, an amount equal
to the sum of (a) Net Income for such period (excluding the effect of
any extraordinary or other non-recurring gains or non-cash losses) plus
(b) an amount which, in determination of Net Income for such period has
been deducted for (i) Interest Expense for such period, (ii) total
Federal, state, foreign or other income taxes for such period and (iii)
Rent Expense for such period, all as determined in accordance with
GAAP.
"Eligible Assignee" means (a) a Lender; (b) an Affiliate of a
Lender; (c) an Approved Fund; and (d) any other Person (other than a
natural person) approved by (i) the Administrative Agent, the Issuing
Lender and the Swingline Lender, and (ii) unless an Event of Default
has occurred and is continuing, the Borrowers (each such approval not
to be unreasonably withheld or delayed); provided that notwithstanding
the foregoing, "Eligible Assignee" shall not include the Parent or any
of the Parent's Affiliates or Subsidiaries.
7
"Environmental Claim" means, with respect to the Real
Properties, any investigation, written notice, notice of violation,
written demand, written allegation, action, suit, injunction, judgment,
order, consent decree, penalty, fine, lien, proceeding, or written
claim (whether administrative, judicial, or private in nature) arising
(a) pursuant to, or in connection with, an actual or alleged violation
of, any Environmental Law, (b) in connection with any Hazardous
Material, (c) from any assessment, abatement, removal, remedial,
corrective, or other response action required by an Environmental Law
or other order of a Governmental Authority or (d) from any actual or
alleged damage, injury, threat, or harm to health or safety, natural
resources, or the environment.
"Environmental Laws" means any current or future legal
requirement of any Governmental Authority pertaining to (a) the
protection of health or safety and the environment, (b) the
conservation, management, use or protection of natural resources and
wildlife, (c) the protection or use of surface water and groundwater,
(d) the management, manufacture, possession, presence, use, generation,
transportation, treatment, storage, disposal, release, threatened
release, abatement, removal, remediation or handling of, or exposure
to, any hazardous or toxic substance or material or (e) pollution
(including any release to land surface water and groundwater) and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act of 1980, as amended by the Superfund
Amendments and Reauthorization Act of 1986, 42 USC 9601 et seq., Solid
Waste Disposal Act, as amended by the Resource Conservation and
Recovery Act of 1976 and Hazardous and Solid Waste Amendments of 1984,
42 USC 6901 et seq., Federal Water Pollution Control Act, as amended by
the Clean Water Act of 1977, 33 USC 1251 et seq., Clean Air Act of
1966, as amended, 42 USC 7401 et seq., Toxic Substances Control Act of
1976, 15 USC 2601 et seq., Hazardous Materials Transportation Act, 49
USC App. 1801 et seq., Occupational Safety and Health Act of 1970, as
amended, 29 USC 651 et seq., Oil Pollution Act of 1990, 33 USC 2701 et
seq., Emergency Planning and Community Right-to-Know Act of 1986, 42
USC 11001 et seq., National Environmental Policy Act of 1969, 42 USC
4321 et seq., Safe Drinking Water Act of 1974, as amended, 42 USC
300(f) et seq., any analogous implementing or successor law, and any
amendment, rule, regulation, order, or directive issued thereunder.
"Equity Issuance" means any issuance by a Credit Party to any
Person of (a) shares of its Capital Stock or other equity interests,
(b) any shares of its Capital Stock or other equity interests pursuant
to the exercise of options (other than Capital Stock issued to
employees and directors pursuant to employees or directors stock option
plans and Capital Stock issued to consultants) or warrants or (c) any
shares of its Capital Stock or other equity interests pursuant to the
conversion of any debt securities to equity. The amount of any Equity
Issuance shall be the net cash proceeds derived therefrom, including,
in the case of any conversion of any debt securities into equity the
principal amount of such debt.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and any successor statute thereto, as interpreted by
the rules and regulations thereunder, all as the same may be in effect
from time to time. References to sections of ERISA shall be construed
also to refer to any successor sections.
"ERISA Affiliate" means an entity, whether or not
incorporated, which is under common control with any Credit Party or
any of its Subsidiaries within the meaning of Section 4001(a)(14) of
ERISA, or is a member of a group which includes any Credit Party or any
of its Subsidiaries and which is treated as a single employer under
Sections 414(b), (c), (m), or (o) of the Code.
"Eurodollar Loan" means a Loan bearing interest based at a
rate determined by reference to the Eurodollar Rate.
8
"Eurodollar Rate" means, for any Interest Period with respect
to a Eurodollar Rate Loan, the rate per annum equal to the British
Bankers Association LIBOR Rate ("BBA LIBOR"), as published by Reuters
(or other commercially available source providing quotations of BBA
LIBOR as designated by the Administrative Agent from time to time) at
approximately 11:00 a.m., London time, two Business Days prior to the
commencement of such Interest Period, for Dollar deposits (for delivery
on the first day of such Interest Period) with a term equivalent to
such Interest Period. If such rate is not available at such time for
any reason, then the "Eurodollar Rate" for such Interest Period shall
be the rate per annum determined by the Administrative Agent to be the
rate at which deposits in Dollars for delivery on the first day of such
Interest Period in same day funds in the approximate amount of the
Eurodollar Rate Loan being made, continued or converted by Bank of
America and with a term equivalent to such Interest Period would be
offered by Bank of America's London Branch to major banks in the London
interbank eurodollar market at their request at approximately 11:00
a.m. (London time) two Business Days prior to the commencement of such
Interest Period.
"Event of Default" means any of the events or circumstances
specified in Section 9.1.
"Exchange Act" means the Securities Exchange Act of 1934 and
the rules and regulations promulgated thereunder, as amended, modified,
succeeded or replaced from time to time.
"Excluded Taxes" means, with respect to the Administrative
Agent, any Lender, any Issuing Lender or any other recipient of any
payment to be made by or on account of any obligation of the Borrowers
hereunder, (a) taxes imposed on or measured by its overall net income
(however denominated), and franchise taxes imposed on it (in lieu of
net income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any Lender, in
which its applicable Lending Office is located, (b) any branch profits
taxes imposed by the United States or any similar tax imposed by any
other jurisdiction in which a Borrower is located and (c) in the case
of a Foreign Lender (other than an assignee pursuant to a request by a
Borrower under Section 11.15), any withholding tax (i) that is imposed
by the United States on amounts payable to such Foreign Lender at the
time such Foreign Lender becomes a party hereto (or designates a new
Lending Office), (ii) is attributable to such Foreign Lender's failure
or inability (other than as a result of a Change in Law) to comply with
Section 3.01(e), except to the extent that such Foreign Lender (or its
assignor, if any) was entitled, at the time of designation of a new
Lending Office (or assignment), to receive additional amounts from a
Borrower with respect to such withholding tax pursuant to Section
3.01(a) or (iii) that is imposed by the United Kingdom and arises
solely as a result of such Foreign Lender's designation of a new
Lending Office (other than at the request of a Borrower pursuant to
Section 3.06(a)).
"Existing Credit Agreement" has the meaning assigned to such
term in the preliminary statements hereof.
"Existing Lenders" has the meaning assigned to such term in
the preliminary statements hereof.
"Existing Letters of Credit" means the letters of credit
described by date of issuance, letter of credit number, undrawn amount,
name of beneficiary and date of expiry on Schedule 1.1(b).
9
"Extension of Credit" means, as to any Lender, the making of a
Loan by such Lender (or a participation therein by a Lender) or the
issuance of, or participation in, a Letter of Credit by such Lender.
"Federal Funds Rate" means, for any day, the rate per annum
equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by
Federal funds brokers on such day, as published by the Federal Reserve
Bank of New York on the Business Day next succeeding such day; provided
that (a) if such day is not a Business Day, the Federal Funds Rate for
such day shall be such rate on such transactions on the next preceding
Business Day as so published on the next succeeding Business Day, and
(b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be the average rate
(rounded upward, if necessary, to a whole multiple of 1/100 of 1%)
charged to Bank of America on such day on such transactions as
determined by the Administrative Agent.
"Fee Letter" means that certain Fee Letter dated October 25,
2004 among the Parent, Bank of America and BAS.
"Fire Mountain" has the meaning assigned to such term in the
preamble hereto.
"First Tier Foreign Subsidiary" means each Foreign Subsidiary
in which any one or more of the Credit Parties owns directly more than
50%, in the aggregate, of the Voting Stock of such Foreign Subsidiary.
"Fixed Charge Coverage Ratio" means the ratio of (a) EBITR for
the prior twelve month period to (b) the sum of (i) cash Interest
Expense for the prior twelve month period plus (ii) Scheduled Funded
Debt Payments for the prior twelve month period plus (iii) Rent Expense
for the prior twelve month period.
"Foreign Lender" means, with respect to any Borrower, any
Lender that is organized under the laws of, or is making a Loan through
a Lending Office or other branch located in, a jurisdiction other than
that in which such Borrower is resident for tax purposes. For purposes
of this definition, the United States, each State thereof and the
District of Columbia shall be deemed to constitute a single
jurisdiction.
"Foreign Subsidiary" means any Subsidiary of the Parent or any
other Credit Party that is not a Domestic Subsidiary.
"Funded Debt" means, without duplication, the sum of (a) all
outstanding Indebtedness (other than (i) Hedging Agreements and (ii)
Indebtedness owing from one Credit Party to another Credit Party) of
the Credit Parties and their Subsidiaries for borrowed money, (b) all
obligations of the Credit Parties and their Subsidiaries evidenced by
bonds, debentures, notes or similar instruments, or upon which interest
payments are customarily made (c) all purchase money Indebtedness of
the Credit Parties and their Subsidiaries, (d) the Attributable
Indebtedness of the Credit Parties and their Subsidiaries under all
Capital Leases, (e) the Attributable Indebtedness of the Credit Parties
and their Subsidiaries under all Synthetic Leases, (f) the Attributable
Indebtedness of the Credit Parties and their Subsidiaries under all
Securitization Transactions, (g) all obligations, contingent or
otherwise, relative to the face amount of all letters of credit,
10
whether or not drawn, and banker's acceptances created for the account
of a Credit Party or its Subsidiaries (it being understood that, to the
extent an undrawn letter of credit supports another obligation
consisting of Indebtedness, in calculating aggregated Indebtedness only
such other obligation shall be included), (h) all Guaranty Obligations
of the Credit Parties and their Subsidiaries with respect to Funded
Debt of another Person, (i) all Funded Debt of another entity secured
by a Lien on any property of the Credit Parties and their Subsidiaries
whether or not such Funded Debt has been assumed by a Credit Party or
any of its Subsidiaries, (j) all Funded Debt of any partnership or
unincorporated joint venture to the extent a Credit Party or one of its
Subsidiaries is legally obligated or has a reasonable expectation of
being liable with respect thereto, net of any assets of such
partnership or joint venture and (k) all preferred stock or other
equity interests providing for mandatory redemptions, sinking fund or
like payments prior to the Maturity Date.
"GAAP" means generally accepted accounting principles in the
United States applied on a consistent basis and subject to Section 1.3.
"Governmental Authority" means any Federal, state, local,
provincial or foreign court, governmental agency, authority,
instrumentality or regulatory body, or any securities exchange or
self-regulatory organization.
"Guarantor" means each of the Domestic Subsidiaries of the
Parent (other than Fire Mountain) and each Additional Credit Party
which has executed a Joinder Agreement or otherwise become a Guarantor
hereunder, together with their successors and assigns.
"Guaranty Obligations" means, with respect to any Person,
without duplication, any obligations (other than endorsements in the
ordinary course of business of negotiable instruments for deposit or
collection) guaranteeing or intended to guarantee any Indebtedness of
any other Person in any manner, whether direct or indirect, and
including without limitation any obligation, whether or not contingent,
(a) to purchase any such Indebtedness or other obligation or any
property constituting security therefor, (b) to advance or provide
funds or other support for the payment or purchase of such Indebtedness
or obligation or to maintain working capital, solvency or other balance
sheet condition of such other Person (including, without limitation,
maintenance agreements, comfort letters, take or pay arrangements, put
agreements or similar agreements or arrangements) for the benefit of
the holder of Indebtedness of such other Person, (c) to lease or
purchase property, securities or services primarily for the purpose of
assuring the owner of such Indebtedness or (d) to otherwise assure or
hold harmless the owner of such Indebtedness or obligation against loss
in respect thereof. The amount of any Guaranty Obligation hereunder
shall (subject to any limitations set forth therein) be deemed to be an
amount equal to the outstanding principal amount (or maximum principal
amount, if larger) of the Indebtedness in respect of which such
Guaranty Obligation is made unless such primary obligation in respect
of which such Guaranty Obligation is made is not stated or
determinable, in which case the amount of such Guaranty Obligation
shall be the maximum reasonably anticipated liability in respect
thereof (assuming the guaranteeing person is required to perform).
"Hazardous Materials" means any substance, material or waste
defined in or regulated under any Environmental Laws.
"Hedging Agreement" means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions, forward rate
transactions, commodity swaps, commodity options, forward commodity
contracts, equity or equity index swaps or options, bond or bond price
or bond index swaps or options or forward bond or forward bond price or
forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap
11
transactions, currency options, spot contracts, or any other similar
transactions or any combination of any of the foregoing (including any
options to enter into any of the foregoing), whether or not any such
transaction is governed by or subject to any master agreement, and (b)
any and all transactions of any kind, and the related confirmations,
which are subject to the terms and conditions of, or governed by, any
form of master agreement published by the International Swaps and
Derivatives Association, Inc., any International Foreign Exchange
Master Agreement, or any other master agreement (any such master
agreement, together with any related schedules, a "Master Agreement"),
including any such obligations or liabilities under any Master
Agreement.
"Honor Date" has the meaning assigned to such term in Section
2.2(c)(i).
"Immaterial Subsidiary" means any Subsidiary of the Parent
which accounted for less than (a) two percent (2%) of the consolidated
assets of the Parent and its Subsidiaries, on a consolidated basis, as
of the end of the most recent fiscal year of the Parent and (b) two
percent (2%) of the consolidated revenues of the Parent and its
Subsidiaries, on a consolidated basis, for the four fiscal quarters
ending as of the most recent fiscal year of the Parent.
"Indebtedness" of any Person means, without duplication, (a)
all obligations of such Person for borrowed money, (b) all obligations
of such Person evidenced by bonds, debentures, notes or similar
instruments, or upon which interest payments are customarily made (c)
all obligations of such Person under conditional sale or other title
retention agreements relating to property purchased by such Person to
the extent of the value of such property (other than customary
reservations or retentions of title under agreements with suppliers
entered into in the ordinary course of business), (d) all obligations,
other than intercompany items, of such Person issued or assumed as the
deferred purchase price of property or services purchased by such
Person which would appear as liabilities on a balance sheet of such
Person, (e) all Indebtedness of others secured by (or for which the
holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien on, or payable out of the
proceeds of production from, property owned or acquired by such Person,
whether or not the obligations secured thereby have been assumed, (f)
all Guaranty Obligations of such Person, (g) the Attributable
Indebtedness of such Person under all Capital Leases, (h) the
Attributable Indebtedness of such Person under all Synthetic Leases,
(i) the Attributable Indebtedness of such Person under all
Securitization Transactions, (j) all obligations of such Person in
respect of Hedging Agreements, (k) the maximum amount of all
performance and standby letters of credit issued or bankers'
acceptances facilities created for the account of such Person and,
without duplication, all drafts drawn thereunder (to the extent
unreimbursed), (l) all preferred stock issued by such Person and
required by the terms thereof to be redeemed, or for which mandatory
sinking fund payments are due by a fixed date, (m) the aggregate amount
of uncollected accounts receivable of such Person subject at such time
to a sale of receivables (or similar transaction) regardless of whether
such transaction is effected without recourse to such Person or in a
manner that would not be reflected on the balance sheet of such Person
in accordance with GAAP, and (n) all obligations of such Person to
repurchase any securities which repurchase obligation is related to the
issuance thereof, including, without limitation, obligations commonly
known as residual equity appreciation potential shares. The
Indebtedness of any Person shall include the Indebtedness of any
partnership or unincorporated joint venture in which such Person is
legally obligated or has a reasonable expectation of being liable with
respect thereto.
"Indemnified Taxes" means Taxes other than Excluded Taxes.
"Initial Capital Expenditure Basket" has the meaning assigned
to such term in Section 8.13(a).
12
"Intellectual Property" has the meaning assigned to such term
in Section 6.19.
"Intercreditor Agreement" means that certain Amended and
Restated Intercreditor and Collateral Agency Agreement dated as of July
25, 2003 among the Collateral Agent, the Administrative Agent, the
Noteholders and the 2003 Noteholders, as amended by the Intercreditor
Amendment and as further amended, modified, supplemented or restated
from time to time.
"Intercreditor Amendment" means that certain First Amendment
to the Amended and Restated Intercreditor and Collateral Agency
Agreement dated as of the date hereof among the Collateral Agent, the
Administrative Agent, the Noteholders and the 2003 Noteholders.
"Interest Expense" means, for any period, with respect to the
Credit Parties and their Subsidiaries on a consolidated basis, all
interest, premium payments, debt discount, fees, charges and related
expenses of the Credit Parties and their Subsidiaries in connection
with borrowed money or in connection with the deferred purchase price
of assets, in each case to the extent treated as interest expense in
accordance with GAAP.
"Interest Payment Date" means (a) as to Base Rate Loans
(including a Swingline Loan), the last Business Day of each March,
June, September and December and the Maturity Date and (b) as to
Eurodollar Loans, the last day of each applicable Interest Period and
the Maturity Date, and in addition, where the applicable Interest
Period for a Eurodollar Loan is greater than three months, then also
the date three months from the beginning of the Interest Period and
each three months thereafter.
"Interest Period" means, as to Eurodollar Loans, a period of
one, two, three or six months' duration, as the applicable Borrower may
elect, commencing, in each case, on the date of the borrowing
(including continuations and conversions thereof); provided, however,
(a) if any Interest Period would end on a day which is not a Business
Day, such Interest Period shall be extended to the next succeeding
Business Day (except that where the next succeeding Business Day falls
in the next succeeding calendar month, then on the next preceding
Business Day), (b) no Interest Period shall extend beyond the Maturity
Date and (c) where an Interest Period begins on a day for which there
is no numerically corresponding day in the calendar month in which the
Interest Period is to end, such Interest Period shall end on the last
Business Day of such calendar month.
"Investment" in any Person means (a) the acquisition (whether
for cash, property, services, assumption of Indebtedness, securities or
otherwise) of assets, shares of Capital Stock, bonds, notes,
debentures, partnership, joint ventures or other ownership interests or
other securities of such Person or (b) any deposit with, or advance,
loan or other extension of credit to, such Person (other than deposits
made in connection with the purchase of equipment or other assets in
the ordinary course of business) or (c) any other capital contribution
to or investment in such Person, including, without limitation, any
Guaranty Obligation (including any support for a Letter of Credit
issued on behalf of such Person) incurred for the benefit of such
Person.
"ISP" means, with respect to any Letter of Credit, the
"International Standby Practices 1998" published by the Institute of
International Banking Law & Practice (or such later version thereof as
may be in effect at the time of issuance).
"Issuer Documents" means with respect to any Letter of Credit,
the Letter Credit Application, and any other document, agreement and
instrument entered into by the Issuing Lender and the applicable
13
Borrower (or any Subsidiary) or in favor the Issuing Lender and
relating to any such Letter of Credit.
"Issuing Lender" means Bank of America in its capacity as
issuer of Letters of Credit hereunder, or any successor issuer of
Letters of Credit hereunder.
"Joinder Agreement" means a Joinder Agreement substantially in
the form of Exhibit G.
"L/C Advance" means, with respect to each Lender, such
Lender's funding of its participation in any L/C Borrowing in
accordance with its Applicable Percentage.
"L/C Borrowing" means an extension of credit resulting from a
drawing under any Letter of Credit which has not been reimbursed on the
date when made or refinanced as a Committed Borrowing.
"L/C Credit Extension" means, with respect to any Letter of
Credit, the issuance thereof or extension of the expiry date thereof,
or the increase of the amount thereof.
"L/C Obligations" means, as at any date of determination, the
aggregate amount available to be drawn under all outstanding Letters of
Credit plus the aggregate of all Unreimbursed Amounts, including all
L/C Borrowings. For purposes of computing the amount available to be
drawn under any Letter of Credit, the amount of such Letter of Credit
shall be determined in accordance with Section 1.4. For all purposes of
this Credit Agreement, if on any date of determination a Letter of
Credit has expired by its terms but any amount may still be drawn
thereunder by reason of the operation of Rule 3.14 of the ISP, such
Letter of Credit shall be deemed to be "outstanding" in the amount so
remaining available to be drawn.
"Lender" means any of the Persons identified as a "Lender" on
the signature pages hereto, the Swingline Lender, the Issuing Lender
and any Eligible Assignee which may become a Lender by way of
assignment in accordance with the terms hereof, together with their
successors and permitted assigns.
"Lending Office" means, as to any Lender, the office or
offices of such Lender described as such in such Lender's
Administrative Questionnaire, or such other office or offices as a
Lender may from time to time notify the Parent and the Administrative
Agent.
"Letter of Credit" means (a) a letter of credit issued for the
account of a Credit Party by the Issuing Lender pursuant to Section
2.2, as any such letter of credit may be amended, modified, extended,
renewed or replaced and (b) any Existing Letter of Credit.
"Letter of Credit Application" means an application and
agreement for the issuance or amendment of a Letter of Credit in the
form from time to time in use by the Issuing Lender.
"Letter of Credit Expiration Date" means the day that is seven
days prior to the Maturity Date then in effect (or, if such day is not
a Business Day, the next preceding Business Day).
"Letter of Credit Fees" has the meaning assigned to such term
in Section 3.5(b).
"Letter of Credit Sublimit" means an amount equal to
$25,000,000. The Letter of Credit Sublimit is part of, and not in
addition to, the Revolving Committed Amount.
14
"Leverage Ratio" means, as of the end of each fiscal quarter,
the ratio of (a) total Funded Debt on such date to (b) EBITDA for the
twelve month period ending on such date.
"Lien" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement, security interest, encumbrance, lien (statutory or
otherwise), preference, priority or charge of any kind, including,
without limitation, any agreement to give any of the foregoing, any
conditional sale or other title retention agreement, and any lease in
the nature thereof.
"Loan" or "Loans" means the Revolving Loans and the Swingline
Loans (or a portion of any Revolving Loan or Swingline Loan),
individually or collectively, as appropriate.
"Material Adverse Effect" means a material adverse effect on
(a) the business, assets, liabilities (actual or contingent),
operations, condition (financial or otherwise) or prospects of the
Credit Parties and their Subsidiaries taken as a whole, (b) the ability
of the Credit Parties and their Subsidiaries taken as a whole to
perform their obligations under this Credit Agreement or any of the
other Credit Documents, or (c) the validity or enforceability of this
Credit Agreement, any of the other Credit Documents, or the rights and
remedies of the Lenders hereunder or thereunder taken as a whole.
"Maturity Date" means December __, 2009.
"Moody's" means Moody's Investors Service, Inc., or any
successor or assignee of the business of such company in the business
of rating securities.
"Multiemployer Plan" means a Plan covered by Title IV of ERISA
which is a multiemployer plan as defined in Section 3(37) or 4001(a)(3)
of ERISA.
"Multiple Employer Plan" means a Single Employer Plan to which
any Credit Party or any of its Subsidiaries or any ERISA Affiliate and
at least one employer other than a Credit Party or any of its
Subsidiaries or any ERISA Affiliate are contributing sponsors.
"Net Income" means, for any period, the net income after taxes
for such period of the Credit Parties and their Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Non-Excluded Taxes" has the meaning assigned to such term in
Section 3.13.
"Non-Extension Notice Date" has the meaning assigned to such
term in Section 2.2(b)(iii).
"Non-Operating Subsidiaries" means the collective reference to
Big R, Rymark and Ryan's Properties.
"Note" or "Notes" means the Revolving Notes and the Swingline
Note, individually or collectively, as appropriate.
"Noteholders" means the holders from time to time of the 9.02%
Senior Notes due January 28, 2008 (and any notes issued in substitution
thereof) issued pursuant to separate Note Purchase Agreements.
15
"Note Purchase Agreements" means the collective reference to
those separate Note Purchase Agreements dated as of January 28, 2000
among the Parent and each of the respective purchasers identified
therein, as the same may be amended, modified, supplemented or restated
from time to time.
"Notes Refinancing Indebtedness" has the meaning assigned to
such term in Section 8.1(f).
"Notice of Borrowing" means a request by a Borrower for a
Revolving Loan, in the form of Exhibit A.
"Notice of Continuation/Conversion" means a request by a
Borrower to continue an existing Eurodollar Loan to a new Interest
Period or to convert a Eurodollar Loan to a Base Rate Loan or a Base
Rate Loan to a Eurodollar Loan, in the form of Exhibit E.
"Operating Leases" means, as applied to any Person, any lease
(including, without limitation, leases which may be terminated by the
lessee at any time) of any Property which is not a Capital Lease other
than any such lease in which such Person is the lessor.
"Operating Partners Program" means the Parent's program
whereby employees of the Parent or its Subsidiaries who hold the
positions of restaurant general manager, district manager or regional
manager or positions of like authority and similar responsibilities may
purchase Capital Stock of the Parent and may obtain from the Parent a
guarantee of loans received by such an employee to enable such employee
to purchase such Capital Stock pursuant to the program.
"Other Taxes" means all present or future stamp or documentary
taxes or any other excise or property taxes, charges or similar levies
arising from any payment made hereunder or under any other Credit
Document or from the execution, delivery or enforcement of, or
otherwise with respect to, this Credit Agreement or any other Credit
Document.
"Parent" has the meaning assigned to such term in the preamble
hereto.
"Participant" has the meaning assigned to such term in Section
11.3(d).
"Participation Interest" means the Extension of Credit by a
Lender by way of a purchase of a participation in Letters of Credit or
L/C Obligations as provided in Section 2.2, in Swingline Loans as
provided in Section 2.3(c) or in any Loans as provided in Section 3.8.
"PBGC" means the Pension Benefit Guaranty Corporation
established pursuant to Subtitle A of Title IV of ERISA and any
successor thereto.
"Permitted Acquisitions" means an Acquisition by the Parent
for consideration no greater than the fair market value; provided that
(a) the Capital Stock or Property acquired in such Acquisition are in,
or used or useful in, the same or similar or related line of business
as the Parent is engaged in on the Closing Date, (b) the Administrative
Agent shall have received all items in respect of the Capital Stock or
Property acquired in such Acquisition required to be delivered by the
terms of Section 7.9 and/or Section 7.12, (c) in the case of an
Acquisition of the Capital Stock of another Person, the board of
directors (or other comparable governing body) of such other Person
shall have duly approved such Acquisition, (d) the Parent shall have
delivered to the Administrative Agent a Pro Forma Compliance
Certificate demonstrating that, upon giving effect to such Acquisition
on a Pro Forma Basis, the Credit Parties shall be in compliance with
16
all of the financial covenants set forth in Section 7.2, (e) the
representations and warranties made by the Credit Parties in any Credit
Document shall be true and correct in all material respects at and as
if made as of the date of such Acquisition (after giving effect
thereto) except to the extent such representations and warranties
expressly relate to an earlier date, (f) after giving effect to such
Acquisition, no Default or Event of Default shall exist, (g) after
giving effect to such Acquisition, the amount of availability existing
under the Revolving Committed Amount shall be greater than or equal to
$20,000,000 and (h) the cash consideration and non-cash consideration
(including, without limitation, assumed Indebtedness and Earn Out
Obligations) paid in the aggregate for all Acquisitions shall not
exceed $60,000,000 during the period from the Closing Date to the
Maturity Date.
"Permitted Investments" means Investments which are (a) cash
or Cash Equivalents, (b) accounts receivable created, acquired or made
in the ordinary course of business and payable or dischargeable in
accordance with customary trade terms, (c) inventory, raw materials and
general intangibles (to the extent such general intangibles are not a
Capital Expenditure) acquired in the ordinary course of business, (d)
Investments by a Credit Party in or to another Credit Party and (e)
Permitted Acquisitions.
"Permitted Liens" means (a) Liens securing the Obligations (as
defined in the Intercreditor Agreement), (b) Liens for taxes not yet
due or Liens for taxes being contested in good faith by appropriate
proceedings for which adequate reserves determined in accordance with
GAAP have been established (and as to which the property subject to any
such Lien is not yet subject to foreclosure, sale, collection, levy or
loss on account thereof), (c) Liens in respect of property imposed by
law arising in the ordinary course of business (other than Liens
arising under Section 412 of the Code or ERISA) such as materialmen's,
mechanics', warehousemen's, carrier's, landlords' and other
nonconsensual statutory Liens which are not yet due and payable or
which are being contested in good faith by appropriate proceedings for
which adequate reserves determined in accordance with GAAP have been
established (and as to which the property subject to any such Lien is
not yet subject to foreclosure, sale or loss on account thereof), (d)
pledges or deposits made in the ordinary course of business to secure
payment of worker's compensation insurance, unemployment insurance or
social security programs, (e) Liens arising from good faith deposits in
connection with or to secure performance of (i) tenders, bids, leases,
government contracts, performance and return-of-money bonds and other
similar obligations or (ii) leases of real property, in each case
incurred in the ordinary course of business (other than obligations in
respect of the payment of borrowed money), (f) Liens arising from good
faith deposits in connection with or to secure performance of statutory
obligations and surety and appeal bonds, (g) easements, rights-of-way,
restrictions (including zoning restrictions), matters of plat, minor
defects or irregularities in title and other similar charges or
encumbrances not, in any material respect, impairing the use of the
encumbered property for its intended purposes, (h) judgment Liens that
would not constitute an Event of Default, (i) Liens in connection with
Indebtedness permitted by Section 8.1(c); provided that (i) any such
Lien shall extend solely to the item of such Property so acquired and
(ii) any such Lien shall attach or be created contemporaneously with,
or within 180 days after, the acquisition of such Property, (j) Liens
arising by virtue of any statutory or common law provision relating to
banker's liens, rights of setoff or similar rights as to deposit
accounts or other funds maintained with a creditor depository
institution, (k) any precautionary filings of financing statements
under the UCC made in relation to leases of equipment which leases are
otherwise permitted by this Credit Agreement, (l) Liens of a collecting
bank arising under Section 4-210 of the UCC on items in the course of
collection and (m) other Liens securing Indebtedness permitted
hereunder in an aggregate principal amount not exceeding $10,000,000 at
any time.
17
"Person" means any individual, partnership, joint venture,
firm, corporation, limited liability company, association, trust, fund
or other enterprise (whether or not incorporated), or any Governmental
Authority.
"Plan" means any employee benefit plan (as defined in Section
3(3) of ERISA) which is covered by ERISA and with respect to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate is (or,
if such plan were terminated at such time, would under Section 4069 of
ERISA be deemed to be) an "employer" within the meaning of Section 3(5)
of ERISA.
"Pledge Agreement" means that certain Amended and Restated
Pledge Agreement dated as of July 25, 2003 executed and delivered by
each of the Credit Parties in favor of the Collateral Agent, for the
benefit of the Lenders (and any Affiliate of a Lender that enters into
a Hedging Agreement with a Credit Party), the Noteholders and the 2003
Noteholders, as amended by the Pledge Amendment and as further amended,
modified, extended, supplemented, restated, renewed or replaced from
time to time.
"Pledge Amendment" means that certain First Amendment to the
Amended and Restated Pledge Agreement dated as of the date hereof
executed and delivered by each of the Credit Parties in favor of the
Collateral Agent for the benefit of the Lenders (and any Affiliate of a
Lender that enters into a Hedging Agreement with a Credit Party), the
Noteholders and the 2003 Noteholders, as further amended or modified
from time to time.
"Pro Forma Basis" means, for purposes of calculating
(utilizing the principles set forth in the second paragraph of Section
1.3) compliance with each of the financial covenants set forth in
Section 7.2 in respect of a proposed Acquisition as referred to in
clause (d) of the definition of "Permitted Acquisition" set forth in
this Section 1.1, that such Acquisition shall be deemed to have
occurred as of the first day of the four fiscal-quarter period ending
as of the most recent fiscal quarter end preceding the date of such
Acquisition with respect to which the Administrative Agent has received
the financial statements and officer's certificate required to be
delivered pursuant to Section 7.1(a) or (b), as applicable, and Section
7.1(c). In connection with any calculation of the financial covenants
set forth in Section 7.2 and upon giving effect on a Pro Forma Basis to
any Acquisition, (a) any Indebtedness incurred by any Credit Party or
any of its Subsidiaries in connection with such Acquisition (i) shall
be deemed to have been incurred as of the first day of the applicable
period and (ii) if such Indebtedness has a floating or formula rate,
such Indebtedness shall have an implied rate of interest for the
applicable period for purposes of this definition determined by
utilizing the rate which is or would be in effect with respect to such
Indebtedness as at the relevant date of determination and (b) income
statement items (whether positive or negative) attributable to the
Capital Stock or Property acquired in such Acquisition shall be
included to the extent relating to the relevant period and to the
extent, and in the same manner, as such items are included for the
Credit Parties.
"Pro Forma Compliance Certificate" means a certificate of a
Responsible Officer of the Parent delivered to the Administrative Agent
in connection with any Acquisition as referred to in clause (d) of the
definition of "Permitted Acquisition" set forth in this Section 1.1 and
containing reasonably detailed calculations, upon giving effect to such
Acquisition on a Pro Forma Basis, of each of the financial covenants
set forth in Section 7.2 as of the most recent fiscal quarter end
preceding the date of such Acquisition with respect to which the
Administrative Agent shall have received the financial statements and
officer's certificate required to be delivered pursuant to Section
7.1(a) or (b), as applicable, and Section 7.1(c).
18
"Property" means any interest in any kind of property or
asset, whether real, personal or mixed, or tangible or intangible.
"Real Properties" means the real properties that the Credit
Parties may own, operate or lease (as lessee or sublessee) from third
parties from time to time.
"Regulation D, O, T, U or X" means Regulation D, O, T, U or X,
respectively, of the Board of Governors of the Federal Reserve System
as from time to time in effect and any successor to all or a portion
thereof.
"Related Parties" means, with respect to any Person, such
Person's Affiliates and the partners, directors, officers, employees,
agents and advisors of such Person and of such Person's Affiliates.
"Rent Expense" means, for any period, the total rent expense
for Operating Leases of the Credit Parties and their Subsidiaries on a
consolidated basis, as determined in accordance with GAAP.
"Reportable Event" means a "reportable event" as defined in
Section 4043 of ERISA with respect to which the notice requirements to
the PBGC have not been waived.
"Required Holders" means, at any time, the holders of at least
a majority in principal amount of the Senior Notes and the 2003 Senior
Notes at the time outstanding (exclusive of the Senior Notes and 2003
Senior Notes then owned by the Parent or any of its Affiliates).
"Required Lenders" means Lenders whose aggregate Credit
Exposure (as hereinafter defined) constitutes more than 50% of the
Credit Exposure of all Lenders at such time; provided, however, that if
any Lender shall be a Defaulting Lender at such time then there shall
be excluded from the determination of Required Lenders the aggregate
principal amount of Credit Exposure of such Lender at such time. For
purposes of the preceding sentence, the term "Credit Exposure" as
applied to each Lender shall mean (a) at any time prior to the
termination of the Commitments, the Revolving Loan Commitment
Percentage of such Lender multiplied by the Revolving Committed Amount,
and (b) at any time after the termination of the Commitments, the sum
of (i) the principal balance of the outstanding Loans of such Lender
plus (ii) such Lender's Participation Interests in the face amount of
the outstanding Letters of Credit and Swingline Loans.
"Requirement of Law" means, as to any Person, the articles or
certificate of incorporation and by-laws or other organizational or
governing documents of such Person, and any law, treaty, rule or
regulation or final, non-appealable determination of an arbitrator or a
court or other Governmental Authority, in each case applicable to or
binding upon such Person or to which any of its material property is
subject.
"Responsible Officer" means the chief executive officer,
president, chief financial officer, treasurer, or any other senior
officer of a Credit Party designated as such to the Administrative
Agent by such Credit Party.
"Revolving Committed Amount" means ONE HUNDRED FIFTY MILLION
DOLLARS ($150,000,000), as such amount may be adjusted from time to
time in accordance with this Credit Agreement.
19
"Revolving Loan Commitment Percentage" means, for each Lender,
the percentage identified as its Revolving Loan Commitment Percentage
on Schedule 1.1(a), as such percentage may be modified in connection
with any assignment made in accordance with the provisions of Section
11.3.
"Revolving Loans" means the Revolving Loans made to a Borrower
by the Lenders pursuant to Section 2.1.
"Revolving Note" or "Revolving Notes" means the promissory
notes of the Borrowers in favor of each of the Lenders evidencing the
Revolving Loans provided pursuant to Section 2.1, individually or
collectively, as appropriate, as such promissory notes may be amended,
modified, supplemented, extended, renewed or replaced from time to time
and as evidenced in the form of Exhibit B.
"Ryan's Properties" means Ryan's Properties, Inc., a Delaware
corporation.
"Rymark" means Rymark Holdings, Inc., a Delaware corporation.
"S&P" means Standard & Poor's Rating Services, a division of
The McGraw-Hill Companies, Inc. or any successor or assignee of the
business of such division in the business of rating securities.
"Scheduled Funded Debt Payments" means, as of the end of each
fiscal quarter of the Parent, for the Credit Parties and their
Subsidiaries on a consolidated basis, the sum of all scheduled payments
of principal on Funded Debt for the applicable period ending on such
date (including the principal component of payments due on Capital
Leases during the applicable period ending on such date); it being
understood that Scheduled Funded Debt Payments shall not include
voluntary prepayments or the mandatory prepayments required pursuant to
Section 3.3.
"Secured Parties" means a collective reference to the Lenders,
the Noteholders and the 2003 Noteholders, and "Secured Party" means any
one of them.
"SEC" means the Securities and Exchange Commission, or any
Governmental Authority succeeding to any of its principal functions.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder.
"Securitization Transaction" means any financing transaction
or series of financing transactions (including factoring arrangements)
pursuant to which the Parent or any Subsidiary may sell, convey or
otherwise transfer, or grant a security interest in, accounts,
payments, receivables, rights to future lease payments or residuals or
similar rights to payment to a special purpose subsidiary or affiliate
of the Parent.
"Senior Notes" means the senior notes purchased by the
Noteholders pursuant to the Note Purchase Agreements.
"Share Repurchase Program" means the share repurchase program
authorized by the board of directors of the Parent.
20
"Single Employer Plan" means any Plan which is covered by
Title IV of ERISA, but which is not a Multiemployer Plan.
"Solvent" means, with respect to any Person as of a particular
date, that on such date (a) such Person is able to pay its debts and
other liabilities, contingent obligations and other commitments as they
mature in the normal course of business, (b) such Person does not
intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay as such debts and
liabilities mature in their ordinary course, (c) such Person is not
engaged in a business or a transaction, and is not about to engage in a
business or a transaction, for which such Person's assets would
constitute unreasonably small capital after giving due consideration to
the prevailing practice in the industry in which such Person is engaged
or is to engage, (d) the fair value of the assets of such Person is
greater than the total amount of liabilities, including, without
limitation, contingent liabilities, of such Person and (e) the present
fair saleable value of the assets of such Person is not less than the
amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured. In computing
the amount of contingent liabilities at any time, it is intended that
such liabilities will be computed at the amount which, in light of all
the facts and circumstances existing at such time, represents the
amount that can reasonably be expected to become an actual or matured
liability.
"Subsidiary" means, as to any Person, (a) any corporation more
than 50% of whose stock of any class or classes having by the terms
thereof ordinary voting power to elect a majority of the directors of
such corporation (irrespective of whether or not at the time, any class
or classes of such corporation shall have or might have voting power by
reason of the happening of any contingency) is at the time owned by
such Person directly or indirectly through Subsidiaries, and (b) any
partnership, limited liability company, association, joint venture or
other entity in which such person directly or indirectly through
Subsidiaries has more than a 50% equity interest at any time.
"Swingline Lender" means Bank of America, N.A. or any
successor Swingline Lender.
"Swingline Loans" means the loans made by the Swingline Lender
pursuant to Section 2.3.
"Swingline Committed Amount" means Ten Million Dollars
($10,000,000).
"Swingline Loan Request" means a request by the Parent for a
Swingline Loan in substantially the form of Exhibit C.
"Swingline Note" means the promissory note of the Parent in
favor of the Swingline Lender evidencing the Swingline Loans provided
pursuant to Section 2.3, as such promissory note may be amended,
modified, supplemented, extended, renewed or replaced from time to time
in and as evidenced by the form of Exhibit D.
"Synthetic Lease" means any synthetic lease, tax retention
operating lease, off-balance sheet loan or similar off-balance sheet
financing arrangement whereby the arrangement is considered borrowed
money indebtedness for tax purposes but is classified as an operating
lease or does not otherwise appear on the balance sheet under GAAP.
"Termination Event" means (a) with respect to any Single
Employer Plan, the occurrence of a Reportable Event or the substantial
cessation of operations (within the meaning of Section 4062(e) of
ERISA); (b) the withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiple Employer Plan
during a plan year in which it was a substantial employer (as such term
21
is defined in Section 4001(a)(2) of ERISA), or the termination of a
Multiple Employer Plan; (c) the distribution of a notice of intent to
terminate or the actual termination of a Plan pursuant to Section
4041(a)(2) or 4041A of ERISA; (d) the institution of proceedings to
terminate or the actual termination of a Plan by the PBGC under Section
4042 of ERISA; (e) any event or condition which might reasonably
constitute grounds under Section 4042 of ERISA for the termination of,
or the appointment of a trustee to administer, any Plan; or (f) the
complete or partial withdrawal of any Credit Party or any of its
Subsidiaries or any ERISA Affiliate from a Multiemployer Plan.
"Unreimbursed Amount" has the meaning assigned to such term in
Section 2.2(c)(i).
"Unused Capital Expenditure Allowance" means, for any fiscal
year, the amount by which the Initial Capital Expenditure Basket for
such fiscal year exceeds the aggregate amount of Capital Expenditures
actually made by the Parent and its Subsidiaries during such fiscal
year.
"Unused Commitment" means, for any period, the amount by which
(a) the then applicable aggregate Revolving Committed Amount exceeds
(b) the sum of the actual daily amount for such period of the
outstanding aggregate principal amount of all Revolving Loans plus the
aggregate amount of L/C Obligations outstanding.
"Unused Restricted Payment Allowance" means, for any fiscal
year, the amount by which the amount of share repurchases the Parent
was permitted to make as of the end of such fiscal year in accordance
with Section 8.8 exceeds the amount of actual share repurchases made by
the Parent as of the end of such fiscal year.
"Voting Stock" of a corporation means all classes of the
Capital Stock of such corporation then outstanding and normally
entitled to vote in the election of directors.
"2003 Noteholders" means the holders from time to time of the
4.65% Senior Notes due July 25, 2013 (and any notes issued in
substitution thereof) issued pursuant to the 2003 Note Purchase
Agreement.
"2003 Note Purchase Agreement" means the 2003 Note Purchase
Agreement dated as of July 25, 2003 among the Parent and each of the
respective purchasers identified therein, as the same may be amended,
modified, supplemented or restated from time to time.
"2003 Senior Notes" means the senior notes purchased by the
2003 Noteholders pursuant to the 2003 Note Purchase Agreement.
1.2 COMPUTATION OF TIME PERIODS AND OTHER DEFINITIONAL PROVISIONS.
For purposes of computation of periods of time hereunder, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding." References in this Credit Agreement to "Articles", "Sections",
"Schedules" or "Exhibits" shall be to Articles, Sections, Schedules or Exhibits
of or to this Credit Agreement unless otherwise specifically provided.
1.3 ACCOUNTING TERMS.
Except as otherwise expressly provided herein, all accounting terms
used herein shall be interpreted, and all financial statements and certificates
and reports as to financial matters required to be delivered to the Lenders
hereunder shall be prepared, in accordance with GAAP applied on a consistent
22
basis. All calculations made for the purposes of determining compliance with
this Credit Agreement shall (except as otherwise expressly provided herein) be
made by application of GAAP applied on a basis consistent with the most recent
annual or quarterly financial statements delivered pursuant to Section 7.1 (or,
prior to the delivery of the first financial statements pursuant to Section 7.1,
consistent with the financial statements described in Section 5.1(d)); provided,
however, if (a) the Parent shall object to determining such compliance on such
basis at the time of delivery of such financial statements due to any change in
GAAP or the rules promulgated with respect thereto or (b) the Administrative
Agent or the Required Lenders shall so object in writing within 60 days after
delivery of such financial statements, then such calculations shall be made on a
basis consistent with GAAP as in effect as of the date of the most recent
financial statements delivered by the Parent to the Lenders to which no such
objection shall have been made.
Notwithstanding the above, the parties hereto acknowledge and agree
that, for purposes of all calculations made under the financial covenants set
forth in Section 7.2 (including the definitions used therein) and also for
purposes of calculating the Leverage Ratio in connection with the definition of
"Applicable Percentage" set forth in Section 1.1, income statement items
(whether positive or negative) attributable to any Person or property acquired
in any Acquisition contemplated by the definition of "Permitted Acquisition" set
forth in Section 1.1 and any Indebtedness incurred by the Credit Parties in
order to consummate such Acquisition shall, to the extent not otherwise included
in such income statement items for the Credit Parties in accordance with GAAP or
in accordance with any defined terms set forth in Section 1.1, be included to
the extent relating to any period applicable in such calculations occurring
after the date of such Acquisition (and notwithstanding the foregoing, during
the first four fiscal quarters following the date of the such Acquisition, such
Acquisition and any Indebtedness incurred by the Credit Parties in order to
consummate such Acquisition (A) shall be deemed to have occurred on the first
day of the four fiscal quarter period immediately preceding the date of such
Acquisition and (B) if such Indebtedness has a floating or formula rate, then
the implied rate of interest for such Indebtedness for the applicable period
shall be determined by utilizing the rate which is or would be in effect with
respect to such Indebtedness as at the relevant date of determination).
1.4 LETTER OF CREDIT AMOUNTS.
Unless otherwise specified herein, the amount of a Letter of Credit at
any time shall be deemed to be the stated amount of such Letter of Credit in
effect at such time; provided, however, that with respect to any Letter of
Credit that, by its terms or the terms of any Issuer Document related thereto,
provides for one or more automatic increases in the stated amount thereof, the
amount of such Letter of Credit shall be deemed to be the maximum stated amount
of such Letter of Credit after giving effect to all such increases, whether or
not such maximum stated amount is in effect at such time.
1.5 TIMES OF DAY.
Unless otherwise specified, all references herein to times of day shall
be references to Eastern time (daylight savings or standard, as applicable).
23
SECTION 2
CREDIT FACILITIES
2.1 REVOLVING LOANS.
(a) Revolving Loan Commitment. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make
revolving loans (each a "Revolving Loan" and collectively the
"Revolving Loans") to the Borrowers, in Dollars, at any time and from
time to time, during the period from and including the Closing Date to
but not including the Maturity Date (or such earlier date if the
Revolving Committed Amount has been terminated as provided herein);
provided, however, that (i) the sum of the aggregate amount of
Revolving Loans outstanding plus the aggregate amount of L/C
Obligations outstanding plus the aggregate amount of Swingline Loans
outstanding shall not exceed the Revolving Committed Amount and (ii)
with respect to each individual Lender, the Lender's pro rata share of
outstanding Revolving Loans plus such Lender's pro rata share of
outstanding L/C Obligations plus (other than the Swingline Lender) such
Lender's pro rata share of Swingline Loans outstanding shall not exceed
such Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount. Subject to the terms of this Credit Agreement
(including Section 3.3), the Borrowers may borrow, repay and reborrow
Revolving Loans.
(b) Method of Borrowing for Revolving Loans. By no later than
11:00 a.m. (i) on the date of the requested borrowing of Revolving
Loans that will be Base Rate Loans or (ii) three Business Days prior to
the date of the requested borrowing of Revolving Loans that will be
Eurodollar Loans, the applicable Borrower shall telephone the
Administrative Agent with the information described below as well as
submit a written Notice of Borrowing in the form of Exhibit A to the
Administrative Agent setting forth (A) the amount requested, (B)
whether such Revolving Loans shall accrue interest at the Adjusted Base
Rate or the Adjusted Eurodollar Rate, (C) with respect to Revolving
Loans that will be Eurodollar Loans, the Interest Period applicable
thereto and (D) certification that the applicable Borrower has complied
in all respects with Section 5.2. If the applicable Borrower shall fail
to specify (x) an Interest Period in the case of a Eurodollar Loan,
then such Eurodollar Loan shall be deemed to have an Interest Period of
one month, or (y) the type of Revolving Loan requested, then such
Revolving Loan shall be deemed to be a Base Rate Loan.
(c) Funding of Revolving Loans. Upon receipt of a Notice of
Borrowing, the Administrative Agent shall promptly inform the Lenders
as to the terms thereof. Each Lender shall make its Revolving Loan
Commitment Percentage of the requested Revolving Loans available to the
Administrative Agent by 1:00 p.m. on the date specified in the Notice
of Borrowing by deposit, in Dollars, of immediately available funds at
the offices of the Administrative Agent at its principal office in
Charlotte, North Carolina or at such other address as the
Administrative Agent may designate in writing. The amount of the
requested Revolving Loans will then be made available to the applicable
Borrower by the Administrative Agent by crediting the account of the
applicable Borrower on the books of such office of the Administrative
Agent, to the extent the amount of such Revolving Loans are made
available to the Administrative Agent.
No Lender shall be responsible for the failure or delay by any
other Lender in its obligation to make Revolving Loans hereunder;
provided, however, that the failure of any Lender to fulfill its
obligations hereunder shall not relieve any other Lender of its
obligations hereunder.
24
(d) Revolving Notes. The Revolving Loans made by each Lender
shall be evidenced by the Revolving Notes.
(e) Increase. The Parent may at any time and from time to
time, upon prior written notice by the Parent to the Administrative
Agent, increase the Revolving Committed Amount by up to FIFTY MILLION
DOLLARS ($50,000,000) with additional Commitments from any existing
Lender or new Commitments from any other Person selected by the Parent
and approved by the Administrative Agent (not to be unreasonably
withheld); provided that:
(i) any such increase shall be in a minimum principal amount
of $10 million and in integral multiples of $1 million in excess
thereof;
(ii) no Default or Event of Default shall be continuing at the
time of any such increase;
(iii) no existing Lender shall be under any obligation to
increase its Commitment and any such decision whether to increase its
Commitment shall be in such Lender's sole and absolute discretion;
(iv) any new Lender shall join this Credit Agreement by
executing such joinder documents reasonably required by the
Administrative Agent; and
(v) as a condition precedent to such increase, the Parent
shall deliver to the Administrative Agent a certificate of each Credit
Party dated as of the date of such increase (in sufficient copies for
each Lender) signed by a Responsible Officer of such Credit Party (A)
certifying and attaching the resolutions adopted by such Credit Party
approving or consenting to such increase, and (B) certifying that,
before and after giving effect to such increase, (1) the
representations and warranties contained in Section 6 and the other
Credit Documents are true and correct on and as of the date of such
increase, except to the extent that such representations and warranties
specifically refer to an earlier date, in which case they were true and
correct as of such earlier date and (2) no Default or Event of Default
exists.
The Borrowers shall prepay any Loans outstanding on the date of any
such increase (and pay any additional amounts required pursuant to
Section 3.14) to the extent necessary to keep the outstanding Loans
ratable with any revised Commitments arising from any nonratable
increase in the Commitments under this Section 2.1(e). In connection
with any such increase in the Revolving Committed Amount, Schedule
1.1(a) shall be revised by the Administrative Agent to reflect the new
Commitments and shall be distributed by the Administrative Agent to the
Lenders.
2.2 LETTERS OF CREDIT.
(a) Letter of Credit Commitment.
(i) Subject to the terms and conditions set forth
herein, (A) the Issuing Lender agrees, in reliance upon the
agreements of the Lenders set forth in this Section 2.2, (1)
from time to time on any Business Day during the period from
the Closing Date until the Letter of Credit Expiration Date,
to issue Letters of Credit for the account of a Borrower or
its Subsidiaries, and to amend Letters of Credit previously
25
issued by it, in accordance with subsection (b) below, and (2)
to honor drawings under the Letters of Credit; and (B) the
Lenders severally agree to participate in Letters of Credit
issued for the account of a Borrower or its Subsidiaries and
any drawings thereunder; provided that after giving effect to
any L/C Credit Extension with respect to any Letter of Credit,
(x) the sum of the aggregate amount aggregate amount of
Revolving Loans outstanding plus the aggregate amount of L/C
Obligations outstanding plus the aggregate amount of Swingline
Loans outstanding shall not exceed the Revolving Committed
Amount, (y) with respect to each individual Lender, the
Lender's pro rata share of outstanding Revolving Loans plus
such Lender's pro rata share of outstanding L/C Obligations
plus (other than the Swingline Lender) such Lender's pro rata
share of Swingline Loans outstanding shall not exceed such
Lender's Revolving Loan Commitment Percentage of the Revolving
Committed Amount, and (z) the aggregate amount of the L/C
Obligations shall not exceed the Letter of Credit Sublimit.
Each request by a Borrower for the issuance or amendment of a
Letter of Credit shall be deemed to be a representation by
such Borrower that the L/C Credit Extension so requested
complies with the conditions set forth in the proviso to the
preceding sentence. Within the foregoing limits, and subject
to the terms and conditions hereof, a Borrower's ability to
obtain Letters of Credit shall be fully revolving, and
accordingly the Borrowers may, during the foregoing period,
obtain Letters of Credit to replace Letters of Credit that
have expired or that have been drawn upon and reimbursed. All
Existing Letters of Credit shall be deemed to have been issued
pursuant hereto, and from and after the Closing Date shall be
subject to and governed by the terms and conditions hereof.
(ii) The Issuing Lender shall not issue any Letter of
Credit, if:
(A) the expiry date of such requested Letter
of Credit would occur more than twelve months after
the date of issuance, unless the Required Lenders
have approved such expiry date; or
(B) the expiry date of such requested Letter
of Credit would occur after the Letter of Credit
Expiration Date, unless all the Lenders have approved
such expiry date.
(iii) The Issuing Lender shall not be under any
obligation to issue any Letter of Credit if:
(A) any order, judgment or decree of any
Governmental Authority or arbitrator shall by its
terms purport to enjoin or restrain the Issuing Lender
from issuing such Letter of Credit, or any Law
applicable to the Issuing Lender or any request or
directive (whether or not having the force of law)
from any Governmental Authority with jurisdiction over
the Issuing Lender shall prohibit, or request that the
Issuing Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in
particular or shall impose upon the Issuing Lender
with respect to such Letter of Credit any restriction,
reserve or capital requirement (for which the Issuing
Lender is not otherwise compensated hereunder) not in
effect on the Closing Date, or shall impose upon the
Issuing Lender any unreimbursed loss, cost or expense
which was not applicable on the Closing Date and which
the Issuing Lender in good faith deems material to it;
(B) the issuance of such Letter of Credit
would violate one or more policies of the Issuing
Lender;
26
(C) except as otherwise agreed by the
Administrative Agent and the Issuing Lender, such
Letter of Credit is in an initial stated amount less
than $100,000, in the case of a commercial Letter of
Credit, or $500,000, in the case of a standby Letter
of Credit;
(D) such Letter of Credit is to be
denominated in a currency other than Dollars;
(E) such Letter of Credit contains any
provisions for automatic reinstatement of the stated
amount after any drawing thereunder; or
(F) a default of any Lender's obligations to
fund under Section 2.2(c) exists or any Lender is at
such time a Defaulting Lender hereunder, unless the
Issuing Lender has entered into satisfactory
arrangements with such Borrower or such Lender to
eliminate the Issuing Lender's risk with respect to
such Lender.
(iv) The Issuing Lender shall not amend any Letter of
Credit if the Issuing Lender would not be permitted at such
time to issue such Letter of Credit in its amended form under
the terms hereof.
(v) The Issuing Lender shall be under no obligation to
amend any Letter of Credit if (i) the Issuing Lender would
have no obligation at such time to issue such Letter of Credit
in its amended form under the terms hereof, or (ii) the
beneficiary of such Letter of Credit does not accept the
proposed amendment to such Letter of Credit.
(vi) The Issuing Lender shall act on behalf of the
Lenders with respect to any Letters of Credit issued by it and
the documents associated therewith, and the Issuing Lender
shall have all of the benefits and immunities (A) provided to
the Administrative Agent in Section 10 with respect to any
acts taken or omissions suffered by the Issuing Lender in
connection with Letters of Credit issued by it or proposed to
be issued by it and Issuer Documents pertaining to such
Letters of Credit as fully as if the term "Administrative
Agent" as used in Section 10 included the Issuing Lender with
respect to such acts or omissions, and (B) as additionally
provided herein with respect to the Issuing Lender.
(b) Procedures for Issuance and Amendment of Letters of Credit.
(i) Each Letter of Credit shall be issued or amended, as the
case may be, upon the request of a Borrower delivered to the Issuing
Lender (with a copy to the Administrative Agent) in the form of a
Letter of Credit Application, appropriately completed and signed by a
Responsible Officer of such Borrower. Such Letter of Credit Application
must be received by the Issuing Lender and the Administrative Agent not
later than 11:00 a.m. at least two Business Days (or such later date
and time as the Administrative Agent and the Issuing Lender may agree
in a particular instance in their sole discretion) prior to the
proposed issuance date or date of amendment, as the case may be. In the
case of a request for an initial issuance of a Letter of Credit, such
Letter of Credit Application shall specify in form and detail
reasonably satisfactory to the Issuing Lender: (A) the proposed
issuance date of the requested Letter of Credit (which shall be a
Business Day); (B) the amount thereof; (C) the expiry date thereof; (D)
the name and address of the beneficiary thereof; (E) the documents to
27
be presented by such beneficiary in case of any drawing thereunder; (F)
the full text of any certificate to be presented by such beneficiary in
case of any drawing thereunder; and (G) such other matters as the
Issuing Lender may reasonably require. In the case of a request for an
amendment of any outstanding Letter of Credit, such Letter of Credit
Application shall specify in form and detail reasonably satisfactory to
the Issuing Lender (A) the Letter of Credit to be amended; (B) the
proposed date of amendment thereof (which shall be a Business Day); (C)
the nature of the proposed amendment; and (D) such other matters as the
Issuing Lender may reasonably require. Additionally, the applicable
Borrower shall furnish to the Issuing Lender and the Administrative
Agent such other documents and information pertaining to such requested
Letter of Credit issuance or amendment, including any Issuer Documents,
as the Issuing Lender or the Administrative Agent may reasonably
require.
(ii) Promptly after receipt of any Letter of Credit
Application, the Issuing Lender will confirm with the Administrative
Agent (by telephone or in writing) that the Administrative Agent has
received a copy of such Letter of Credit Application from the
applicable Borrower and, if not, the Issuing Lender will provide the
Administrative Agent with a copy thereof. Unless the Issuing Lender has
received written notice from any Lender, the Administrative Agent or
any Credit Party, at least one Business Day prior to the requested date
of issuance or amendment of the applicable Letter of Credit, that one
or more applicable conditions contained in Section 9 shall not then be
satisfied, then, subject to the terms and conditions hereof, the
Issuing Lender shall, on the requested date, issue a Letter of Credit
for the account of the applicable Borrower (or the applicable
Subsidiary) or enter into the applicable amendment, as the case may be,
in each case in accordance with the Issuing Lender's usual and
customary business practices. Immediately upon the issuance of each
Letter of Credit, each Lender shall be deemed to, and hereby
irrevocably and unconditionally agrees to, purchase from the Issuing
Lender a risk participation in such Letter of Credit in an amount equal
to the product of such Lender's Applicable Percentage times the amount
of such Letter of Credit.
(iii) If a Borrower so requests in any applicable Letter of
Credit Application, the Issuing Lender may, in its sole and absolute
discretion, agree to issue a Letter of Credit that has automatic
extension provisions (each, an "Auto-Extension Letter of Credit");
provided that any such Auto-Extension Letter of Credit must permit the
Issuing Lender to prevent any such extension at least once in each
twelve-month period (commencing with the date of issuance of such
Letter of Credit) by giving prior notice to the beneficiary thereof not
later than a day (the "Non-Extension Notice Date") in each such
twelve-month period to be agreed upon at the time such Letter of Credit
is issued. Unless otherwise directed by the Issuing Lender, a Borrower
shall not be required to make a specific request to the Issuing Lender
for any such extension. Once an Auto-Extension Letter of Credit has
been issued, the Lenders shall be deemed to have authorized (but may
not require) the Issuing Lender to permit the extension of such Letter
of Credit at any time to an expiry date not later than the Letter of
Credit Expiration Date; provided, however, that the Issuing Lender
shall not permit any such extension if (A) the Issuing Lender has
determined that it would not be permitted, or would have no obligation,
at such time to issue such Letter of Credit in its revised form (as
extended) under the terms hereof (by reason of the provisions of clause
(ii) or (iii) of Section 2.3(a) or otherwise), or (B) it has received
notice (which may be by telephone or in writing) on or before the day
that is five Business Days before the Non-Extension Notice Date (1)
from the Administrative Agent that the Required Lenders have elected
not to permit such extension or (2) from the Administrative Agent, any
28
Lender or a Borrower that one or more of the applicable conditions
specified in Section 5.2 is not then satisfied, and in each such case
directing the Issuing Lender not to permit such extension.
(iv) Promptly after its delivery of any Letter of Credit or
any amendment to a Letter of Credit to an advising bank with respect
thereto or to the beneficiary thereof, the Issuing Lender will also
deliver to the Borrower and the Administrative Agent a true and
complete copy of such Letter of Credit or amendment.
(c) Drawings and Reimbursements; Funding of Participations.
(i) Upon receipt from the beneficiary of any Letter of Credit
of any notice of a drawing under such Letter of Credit, the Issuing
Lender shall notify the applicable Borrower and the Administrative
Agent thereof. Not later than 11:00 a.m. on the date of any payment by
the Issuing Lender under a Letter of Credit (each such date, an "Honor
Date"), the applicable Borrower shall reimburse the Issuing Lender
through the Administrative Agent in an amount equal to the amount of
such drawing. If the applicable Borrower fails to so reimburse the
Issuing Lender by such time, the Administrative Agent shall promptly
notify each Lender of the Honor Date, the amount of the unreimbursed
drawing (the "Unreimbursed Amount"), and the amount of such Lender's
Applicable Percentage thereof. In such event, the applicable Borrower
shall be deemed to have requested a Committed Borrowing of Base Rate
Loans to be disbursed on the Honor Date in an amount equal to the
Unreimbursed Amount, without regard to the minimum and multiples
specified in Section 2.1 for the principal amount of Base Rate Loans,
but subject to the amount of the unutilized portion of the Aggregate
Commitments and the conditions set forth in Section 5.2 (other than the
delivery of a Loan Notice). Any notice given by the Issuing Lender or
the Administrative Agent pursuant to this Section 2.2(c)(i) may be
given by telephone if immediately confirmed in writing; provided that
the lack of such an immediate confirmation shall not affect the
conclusiveness or binding effect of such notice.
(ii) Each Lender shall upon any notice pursuant to Section
2.2(c)(i) make funds available to the Administrative Agent for the
account of the Issuing Lender at the Administrative Agent's Office in
an amount equal to its Applicable Percentage of the Unreimbursed Amount
not later than 1:00 p.m. on the Business Day specified in such notice
by the Administrative Agent, whereupon, subject to the provisions of
Section 2.2(c)(iii), each Lender that so makes funds available shall be
deemed to have made a Base Rate Loan to the applicable Borrower in such
amount. The Administrative Agent shall remit the funds so received to
the Issuing Lender.
(iii) With respect to any Unreimbursed Amount that is not
fully refinanced by a Borrowing of Base Rate Loans because the
conditions set forth in Section 5.2 cannot be satisfied or for any
other reason, the applicable Borrower shall be deemed to have incurred
from the Issuing Lender an L/C Borrowing in the amount of the
Unreimbursed Amount that is not so refinanced, which L/C Borrowing
shall be due and payable on demand (together with interest) and shall
bear interest at the Default Rate. In such event, each Lender's payment
to the Administrative Agent for the account of the Issuing Lender
pursuant to Section 2.2(c)(ii) shall be deemed payment in respect of
its participation in such L/C Borrowing and shall constitute an L/C
Advance from such Lender in satisfaction of its participation
obligation under this Section 2.2.
(iv) Until each Lender funds its Loan or L/C Advance pursuant
to this Section 2.2(c) to reimburse the Issuing Lender for any amount
drawn under any Letter of Credit, interest in respect of such Lender's
Applicable Percentage of such amount shall be solely for the account of
the Issuing Lender.
29
(v) Each Lender's obligation to make Loans or L/C Advances to
reimburse the Issuing Lender for amounts drawn under Letters of Credit,
as contemplated by this Section 2.2(c), shall be absolute and
unconditional and shall not be affected by any circumstance, including
(A) any setoff, counterclaim, recoupment, defense or other right which
such Lender may have against the Issuing Lender, the applicable
Borrower or any other Person for any reason whatsoever; (B) the
occurrence or continuance of a Default, or (C) any other occurrence,
event or condition, whether or not similar to any of the foregoing;
provided, however, that each Lender's obligation to make Loans pursuant
to this Section 2.2(c) is not subject to the conditions set forth in
Section 5.2 (other than delivery by the applicable Borrower of a Loan
Notice). No such making of an L/C Advance shall relieve or otherwise
impair the obligation of the Borrowers to reimburse the Issuing Lender
for the amount of any payment made by the Issuing Lender under any
Letter of Credit, together with interest as provided herein.
(iv) If any Lender fails to make available to the
Administrative Agent for the account of the Issuing Lender any amount
required to be paid by such Lender pursuant to the foregoing provisions
of this Section 2.2(c) by the time specified in Section 2.2(c)(ii), the
Issuing Lender shall be entitled to recover from such Lender (acting
through the Administrative Agent), on demand, such amount with interest
thereon for the period from the date such payment is required to the
date on which such payment is immediately available to the Issuing
Lender at a rate per annum equal to the greater of the Federal Funds
Rate and a rate determined by the Issuing Lender in accordance with
banking industry rules on interbank compensation. A certificate of the
Issuing Lender submitted to any Lender (through the Administrative
Agent) with respect to any amounts owing under this clause (vi) shall
be conclusive absent manifest error.
(d) Repayment of Participations.
(i) At any time after the Issuing Lender has made a
payment under any Letter of Credit and has received from any Lender
such Lender's L/C Advance in respect of such payment in accordance with
Section 2.2(c), if the Administrative Agent receives for the account of
the Issuing Lender any payment in respect of the related Unreimbursed
Amount or interest thereon (whether directly from the Borrower or
otherwise, including proceeds of Cash Collateral applied thereto by the
Administrative Agent), the Administrative Agent will distribute to such
Lender its Applicable Percentage thereof (appropriately adjusted, in
the case of interest payments, to reflect the period of time during
which such Lender's L/C Advance was outstanding) in the same funds as
those received by the Administrative Agent.
(ii) If any payment received by the Administrative Agent for
the account of the Issuing Lender pursuant to Section 2.2(c)(i) is
required to be returned under any of the circumstances described in
Section 11.14 (including pursuant to any settlement entered into by the
Issuing Lender in its discretion), each Lender shall pay to the
Administrative Agent for the account of the Issuing Lender its
Applicable Percentage thereof on demand of the Administrative Agent,
plus interest thereon from the date of such demand to the date such
amount is returned by such Lender, at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the
Lenders under this clause shall survive the payment in full of the
Credit Party Obligations and the termination of this Credit Agreement.
(e) Obligations Absolute. The obligation of the Borrowers to reimburse
the Issuing Lender for each drawing under each Letter of Credit and to repay
30
each L/C Borrowing shall be absolute, unconditional and irrevocable, and shall
be paid strictly in accordance with the terms of this Credit Agreement under all
circumstances, including the following:
(i) any lack of validity or enforceability of such Letter of
Credit, this Credit Agreement, or any other Credit Document;
(ii) the existence of any claim, counterclaim, setoff, defense
or other right that the applicable Borrower or any Subsidiary may have
at any time against any beneficiary or any transferee of such Letter of
Credit (or any Person for whom any such beneficiary or any such
transferee may be acting), the Issuing Lender or any other Person,
whether in connection with this Credit Agreement, the transactions
contemplated hereby or by such Letter of Credit or any agreement or
instrument relating thereto, or any unrelated transaction;
(iii) any draft, demand, certificate or other document
presented under such Letter of Credit proving to be forged, fraudulent,
invalid or insufficient in any respect or any statement therein being
untrue or inaccurate in any respect; or any loss or delay in the
transmission or otherwise of any document required in order to make a
drawing under such Letter of Credit;
(iv) any payment by the Issuing Lender under such Letter of
Credit against presentation of a draft or certificate that does not
strictly comply with the terms of such Letter of Credit; or any payment
made by the Issuing Lender under such Letter of Credit to any Person
purporting to be a trustee in bankruptcy, debtor-in-possession,
assignee for the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any transferee of
such Letter of Credit, including any arising in connection with any
proceeding under any Debtor Relief Law; or
(v) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including any other circumstance
that might otherwise constitute a defense available to, or a discharge
of, any Borrower or any Subsidiary.
The applicable Borrower shall promptly examine a copy of each Letter of
Credit and each amendment thereto that is delivered to it and, in the event of
any claim of noncompliance with such Borrower's instructions or other
irregularity, such Borrower will immediately notify the Issuing Lender. The
Borrowers shall be conclusively deemed to have waived any such claim against the
Issuing Lender and its correspondents unless such notice is given as aforesaid.
(f) Role of Issuing Lender. Each Lender and the Borrowers agree that,
in paying any drawing under a Letter of Credit, the Issuing Lender shall not
have any responsibility to obtain any document (other than any sight draft,
certificates and documents expressly required by the Letter of Credit) or to
ascertain or inquire as to the validity or accuracy of any such document or the
authority of the Person executing or delivering any such document. None of the
Issuing Lender, the Administrative Agent, any of their respective Related
Parties nor any correspondent, participant or assignee of the Issuing Lender
shall be liable to any Lender for (i) any action taken or omitted in connection
herewith at the request or with the approval of the Lenders or the Required
Lenders, as applicable; (ii) any action taken or omitted in the absence of gross
negligence or willful misconduct; or (iii) the due execution, effectiveness,
validity or enforceability of any document or instrument related to any Letter
of Credit or Issuer Document. Each Borrower hereby assumes all risks of the acts
or omissions of any beneficiary or transferee with respect to its use of any
31
Letter of Credit; provided, however, that this assumption is not intended to,
and shall not, preclude a Borrower's pursuing such rights and remedies as it may
have against the beneficiary or transferee at law or under any other agreement.
None of the Issuing Lender, the Administrative Agent, any of their respective
Related Parties nor any correspondent, participant or assignee of the Issuing
Lender shall be liable or responsible for any of the matters described in
clauses (i) through (v) of Section 2.2(e); provided, however, that anything in
such clauses to the contrary notwithstanding, a Borrower may have a claim
against the Issuing Lender, and the Issuing Lender may be liable to a Borrower,
to the extent, but only to the extent, of any direct, as opposed to
consequential or exemplary, damages suffered by a Borrower which such Borrower
proves were caused by the Issuing Lender's willful misconduct or gross
negligence or the Issuing Lender's willful failure to pay under any Letter of
Credit after the presentation to it by the beneficiary of a sight draft and
certificate(s) strictly complying with the terms and conditions of a Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing
Lender may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and the Issuing Lender shall not be responsible for
the validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(g) Cash Collateral. Upon the request of the Administrative Agent, (i)
if the Issuing Lender has honored any full or partial drawing request under any
Letter of Credit and such drawing has resulted in an L/C Borrowing, or (ii) if,
as of the Letter of Credit Expiration Date, any L/C Obligation for any reason
remains outstanding, the Borrower shall, in each case, immediately Cash
Collateralize the then Outstanding Amount of all L/C Obligations. Sections 3.3
and 9.2(c) set forth certain additional requirements to deliver Cash Collateral
hereunder. For purposes of this Section 2.2, Section 3.3 and Section 9.2(c),
"Cash Collateralize" means to pledge and deposit with or deliver to the
Administrative Agent, for the benefit of the Issuing Lender and the Lenders, as
collateral for the L/C Obligations, cash or deposit account balances (such
collateral, "Cash Collateral") pursuant to documentation in form and substance
reasonably satisfactory to the Administrative Agent and the Issuing Lender
(which documents are hereby consented to by the Lenders). Derivatives of such
term have corresponding meanings. The Borrowers hereby grant to the
Administrative Agent, for the benefit of the Issuing Lender and the Lenders, a
security interest in all such cash, deposit accounts and all balances therein
and all proceeds of the foregoing. Cash Collateral shall be maintained in
blocked, non-interest bearing deposit accounts at Bank of America.
(h) Applicability of ISP and UCP. Unless otherwise expressly agreed by
the Issuing Lender and the applicable Borrower when a Letter of Credit is issued
(including any such agreement applicable to an Existing Letter of Credit), (i)
the rules of the ISP shall apply to each standby Letter of Credit, and (ii) the
rules of the Uniform Customs and Practice for Documentary Credits, as most
recently published by the International Chamber of Commerce at the time of
issuance shall apply to each commercial Letter of Credit.
(i) Conflict with Issuer Documents. In the event of any conflict
between the terms hereof and the terms of any Issuer Document, the terms hereof
shall control.
(j) Letters of Credit Issued for Subsidiaries. Notwithstanding that a
Letter of Credit issued or outstanding hereunder is in support of any
obligations of, or is for the account of, a Subsidiary, the applicable Borrower
shall be obligated to reimburse the Issuing Lender hereunder for any and all
drawings under such Letter of Credit. The Borrowers hereby acknowledge that the
issuance of Letters of Credit for the account of Subsidiaries inures to the
benefit of the Borrowers, and that the Borrowers' business derives substantial
benefits from the businesses of such Subsidiaries.
32
2.3 SWINGLINE LOANS SUBFACILITY.
(a) Swingline Loans. The Swingline Lender hereby agrees, on
the terms and subject to the conditions set forth herein and in the
other Credit Documents, to make loans to the Borrowers in Dollars at
any time and from time to time during the period from and including the
Closing Date to but not including the Maturity Date (each such loan, a
"Swingline Loan" and collectively, the "Swingline Loans"); provided
that (i) the aggregate principal amount of the Swingline Loans
outstanding at any one time shall not exceed the Swingline Committed
Amount and (ii) the aggregate amount of Swingline Loans outstanding
plus the aggregate amount of Revolving Loans outstanding plus the
aggregate amount of L/C Obligations outstanding shall not exceed the
Revolving Committed Amount. Prior to the Maturity Date, Swingline Loans
may be repaid and reborrowed by the Borrowers in accordance with the
provisions hereof.
(b) Method of Borrowing and Funding Swingline Loans. By no
later than 1:00 p.m., on the date of the requested borrowing of
Swingline Loans, the Parent shall telephone the Swingline Lender as
well as submit a Swingline Loan Request to the Swingline Lender in the
form of Exhibit C setting forth (A) the amount of the requested
Swingline Loan, (B) the date of the requested Swingline Loan and (C)
certification that the Parent has in all respects complied with Section
5.2. The Swingline Lender shall initiate the transfer of funds
representing the Swingline Loan advance to the Parent by 3:00 p.m. on
the Business Day of the requested borrowing.
(c) Repayment and Participations of Swingline Loans. Each
Borrower agrees to repay all Swingline Loans on the earlier to occur of
(i) the date ten Business Days after such Swingline Loan is made and
(ii) the Maturity Date. Each repayment of a Swingline Loan may be
accomplished by requesting Revolving Loans which request is not subject
to the conditions set forth in Section 5.2. In the event that a
Borrower shall fail to timely repay any Swingline Loan, and in any
event upon (A) a request by the Swingline Lender, (B) the occurrence of
an Event of Default described in Section 9.1(f) or (C) the acceleration
of any Loan or termination of any Commitment pursuant to Section 9.2,
each other Lender shall irrevocably and unconditionally purchase from
the Swingline Lender, without recourse or warranty, an undivided
interest and participation in such Swingline Loan in an amount equal to
such other Lender's Revolving Loan Commitment Percentage thereof, by
directly purchasing a participation in such Swingline Loan in such
amount (regardless of whether the conditions precedent thereto set
forth in Section 5.2 are then satisfied, whether or not the Parent has
submitted a Notice of Borrowing and whether or not the Commitments are
then in effect, any Event of Default exists or all the Loans have been
accelerated) and paying the proceeds thereof to the Swingline Lender at
the address provided in Section 11.1, or at such other address as the
Swingline Lender may designate, in Dollars and in immediately available
funds. If such amount is not in fact made available to the Swingline
Lender by any Lender, the Swingline Lender shall be entitled to recover
such amount on demand from such Lender, together with accrued interest
thereon for each day from the date of demand thereof, at the Federal
Funds Rate. If such Lender does not pay such amount forthwith upon the
Swingline Lender's demand therefor, and until such time as such Lender
makes the required payment, the Swingline Lender shall be deemed to
continue to have outstanding Swingline Loans in the amount of such
unpaid participation obligation for all purposes of the Credit
Documents other than those provisions requiring the other Lenders to
purchase a participation therein. Further, such Lender shall be deemed
to have assigned any and all payments made of principal and interest on
its Loans, and any other amounts due to it hereunder to the Swingline
Lender to fund Swingline Loans in the amount of the participation in
Swingline Loans that such Lender failed to purchase pursuant to this
Section 2.3(c) until such amount has been purchased (as a result of
such assignment or otherwise).
33
(d) Swingline Note. The Swingline Loans made by the Swingline
Lender shall be evidenced by a duly executed promissory note of the
Borrowers to the Swingline Lender in the face amount of the Swingline
Committed Amount and in substantially the form of Exhibit D.
2.4 CONTINUATIONS AND CONVERSIONS.
The Borrowers shall have the option, on any Business Day, to continue
existing Revolving Loans that are Eurodollar Loans for a subsequent Interest
Period, to convert Revolving Loans that are Base Rate Loans into Eurodollar
Loans or to convert Revolving Loans that are Eurodollar Loans into Base Rate
Loans; provided, however, that (a) each such continuation or conversion must be
requested by the applicable Borrower by telephone to the Administrative Agent
followed by prompt submission of a written Notice of Continuation/Conversion, in
the form of Exhibit E, in compliance with the terms set forth below, (b) except
as provided in Section 3.13, Eurodollar Loans may only be continued or converted
into Base Rate Loans on the last day of the Interest Period applicable thereto,
(c) Eurodollar Loans may not be continued nor may Base Rate Loans be converted
into Eurodollar Loans during the existence and continuation of a Default or an
Event of Default, (d) any request to continue a Eurodollar Loan that fails to
comply with the terms hereof or any failure to request a continuation of a
Eurodollar Loan at the end of an Interest Period shall constitute a conversion
to a Base Rate Loan on the last day of the applicable Interest Period and (e)
any request for continuation or conversion of a Eurodollar Loan which shall fail
to specify an Interest Period shall be deemed to be a request for an Interest
Period of one month. Each continuation or conversion must be requested by the
applicable Borrower no later than 11:00 a.m. (i) on the date for a requested
conversion of a Eurodollar Loan to a Base Rate Loan or (ii) three Business Days
prior to the date for a requested continuation of a Eurodollar Loan or
conversion of a Base Rate Loan to a Eurodollar Loan, in each case by telephone
to the Administrative Agent followed by a written Notice of
Continuation/Conversion promptly submitted to the Administrative Agent which
shall set forth (A) whether the applicable Borrower intends to continue or
convert such Loans and (B) if the request is to continue a Eurodollar Loan or
convert a Base Rate Loan to a Eurodollar Loan, the Interest Period applicable
thereto.
2.5 MINIMUM AMOUNTS.
Each request for a borrowing, conversion or continuation shall be
subject to the requirements that (a) each Eurodollar Loan that is a Revolving
Loan and each Base Rate Loan that is a Revolving Loan shall be in a minimum
amount of $3,000,000 and in integral multiples of $500,000 in excess thereof or
the remaining amount available under the Revolving Committed Amount, if less (b)
each Swingline Loan shall be in a minimum amount of $250,000 and in integral
multiples of $250,000 in excess thereof (or the remaining amount of the
Swingline Committed Amount, if less) and (c) no more than ten (10) Eurodollar
Loans that are Revolving Loans shall be outstanding hereunder at any one time.
For the purposes of this Section, all Revolving Loans that are Eurodollar Loans
with the same Interest Periods that begin and end on the same date shall be
considered as one Eurodollar Loan, but Eurodollar Loans with different Interest
Periods, even if they begin on the same date, shall be considered as separate
Eurodollar Loans.
2.6 JOINT AND SEVERAL LIABILITY OF BORROWERS.
(a) Each Borrower hereby irrevocably and unconditionally accepts, not
merely as a surety but also as a co-debtor, joint and several liability with the
other Borrower with respect to the payment and performance of all of the Credit
Party Obligations, it being the intention of the parties hereto that all of the
Credit Party Obligations shall be the joint and several obligations of each
Borrower without preferences or distinction among them.
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(b) If and to the extent that any Borrower shall fail to make any
payment when due, or perform, any of the Credit Party Obligations in accordance
with the terms thereof, then in each such event, the other Borrower will make
pay, or perform, such Credit Party Obligation.
(c) The obligations of each Borrower under the provisions of this
Section 2.6 constitute full recourse obligations of such Borrower, enforceable
against it to the full extent of its properties and assets, irrespective of the
validity, regularity or enforceability of this Credit Agreement or any other
circumstances whatsoever.
(d) Except as otherwise expressly provided herein, each Borrower hereby
waives notice of acceptance of its joint and several liability, notice of
occurrence of any Default or Event of Default (except to the extent notice is
expressly required to be given pursuant to the terms of this Credit Agreement),
or of any demand for any payment under this Credit Agreement, notice of any
action at any time taken or omitted by the Lender under or in respect of any of
the Credit Party Obligations, any requirement of diligence and, generally, all
demands, notices and other formalities of every kind in connection with this
Credit Agreement or any other Credit Document. Each Borrower hereby assents to,
and waives notice of, any extension or postponement of the time for the payment
of any of the Credit Party Obligations, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence by the Lenders at
any time or times in respect of any default by any Borrower in the performance
or satisfaction of any term, covenant, condition or provision of this Credit
Agreement or any other Credit Document, any and all other indulgences whatsoever
by the Lenders in respect of any of the Credit Party Obligations, and the
taking, addition, substitution or release, in whole or in part, at any time or
times, of any security for any of the Credit Party Obligations or the addition,
substitution or release, in whole or in part, of any Borrower. Without limiting
the generality of the foregoing, each Borrower assents to any other action or
delay in acting or any failure to act on the part of the Lender, including,
without limitation, any failure strictly or diligently to assert any right or to
pursue any remedy or to comply fully with applicable laws or regulations
thereunder which might, but for the provisions of this Section 2.6, afford
grounds for terminating, discharging or relieving such Borrower, in whole or in
part, from any of its obligations under this Section 2.6, it being the intention
of each Borrower that, so long as any of the Credit Party Obligations remain
unsatisfied, the obligations of such Borrower under this Section 2.6 shall not
be discharged except by performance and then only to the extent of such
performance. The obligations of each Borrower under this Section 2.6 shall not
be diminished or rendered unenforceable by any winding up, reorganization,
arrangement, liquidation, reconstruction or similar proceeding with respect to
any reconstruction or similar proceeding with respect to any Borrower or any
Lender. The joint and several liability of the Borrowers hereunder shall
continue in full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name, membership,
constitution or place of formation of any Borrower or any Lender.
(e) The provisions of this Section 2.6 are made for the benefit of the
Administrative Agent and the Lenders and their respective successors and
assigns, and may be enforced by any such Person from time to time against any of
the Borrowers as often as occasion therefor may arise and without requirement on
the part of any Lender first to marshal any of its claims or to exercise any of
its rights against any of the other Borrowers or to exhaust any remedies
available to it against any of the other Borrowers or to resort to any other
source or means of obtaining payment of any of the Credit Party Obligations or
to elect any other remedy. The provisions of this Section 2.6 shall remain in
effect until all the Credit Party Obligations hereunder shall have been paid in
full or otherwise fully satisfied. If at any time, any payment, or any part
thereof, made in respect of any of the Credit Party Obligations, is rescinded or
must otherwise be restored or returned by the Lenders upon the insolvency,
bankruptcy or reorganization of any of the Borrowers, or otherwise, the
provisions of this Section 2.6 will forthwith be reinstated and in effect as
though such payment had not been made.
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(f) Notwithstanding any provision to the contrary contained herein or
in any of the other Credit Documents, to the extent the obligations of any
Borrower shall be adjudicated to be invalid or unenforceable for any reason
(including, without limitation, because of any applicable state or federal law
relating to fraudulent conveyances or transfers) then the obligations of such
Borrower hereunder shall be limited to the maximum amount that is permissible
under applicable law (whether federal or state and including, without
limitation, the Bankruptcy Code).
2.7 AGENCY OF THE PARENT FOR FIRE MOUNTAIN.
Fire Mountain appoints the Parent as its agent for all purposes
relevant to this Credit Agreement and the other Credit Documents, including the
giving and receipt of notices and execution and delivery of all documents,
instruments and certificates contemplated herein and all modifications hereto.
Any notice, acknowledgment, consent, direction, certification or other action
which might otherwise be valid or effective only if given or taken by both of
the Borrowers or acting singly, shall be valid and effective if given or taken
only by the Parent, whether or not Fire Mountain joins therein.
SECTION 3
GENERAL PROVISIONS APPLICABLE TO LOANS AND LETTERS OF CREDIT
3.1 INTEREST.
(a) Interest. Subject to the provisions of Section 3.1(b):
(i) Base Rate Loans. During such periods as the
Revolving Loans shall be comprised in whole or in part of Base
Rate Loans, such Base Rate Loans shall bear interest at a per
annum rate equal to the Adjusted Base Rate.
(ii) Eurodollar Loans. During such periods as the
Revolving Loans shall be comprised in whole or in part of
Eurodollar Loans, such Eurodollar Loans shall bear interest at
a per annum rate equal to the Adjusted Eurodollar Rate.
(iii) Swingline Loans. Each Swingline Loan shall bear
interest at the Adjusted Base Rate.
(b) Default Rate of Interest. Upon the occurrence, and during
the continuance, of an Event of Default, the principal of and, to the
extent permitted by law, interest on the Loans and any other amounts
owing (but not timely paid) hereunder or under the other Credit
Documents (including without limitation fees and expenses) shall bear
interest, payable on demand, at a per annum rate equal to 2% plus the
rate which would otherwise be applicable (or if no rate is applicable,
then the Adjusted Base Rate plus two percent (2%) per annum) (the
"Default Rate").
(c) Interest Payments. Interest on Loans shall be due and
payable in arrears on each Interest Payment Date. If an Interest
Payment Date falls on a date which is not a Business Day, such Interest
Payment Date shall be deemed to be the next succeeding Business Day,
except that in the case of Eurodollar Loans where the next succeeding
Business Day falls in the next succeeding calendar month, then on the
next preceding Business Day.
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3.2 PLACE AND MANNER OF PAYMENTS; ADMINISTRATIVE AGENT'S CLAWBACK.
(a) General. All payments to be made by the Borrower shall be
made without condition or deduction for any counterclaim, defense,
recoupment or setoff. All payments of principal, interest, fees,
expenses and other amounts to be made by a Credit Party under this
Credit Agreement shall be received not later than 2:00 p.m. on the date
when due, in Dollars and in immediately available funds, by the
Administrative Agent at its offices in Charlotte, North Carolina.
Payments received after such time shall be deemed to have been received
on the next Business Day. Each Borrower shall, at the time it makes any
payment under this Credit Agreement, specify to the Administrative
Agent the Loans, Letters of Credit, fees or other amounts payable by
the Borrowers hereunder to which such payment is to be applied (and in
the event that it fails to specify, or if such application would be
inconsistent with the terms hereof, the Administrative Agent shall
distribute such payment to the Lenders in such manner as the
Administrative Agent may reasonably deem appropriate). The
Administrative Agent will distribute such payments to the applicable
Lenders on the same Business Day if any such payment is received prior
to 2:00 p.m.; otherwise the Administrative Agent will distribute such
payment to the applicable Lenders on the next succeeding Business Day.
Whenever any payment hereunder shall be stated to be due on a day which
is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day (subject to accrual of interest and fees
for the period of such extension), except that in the case of
Eurodollar Loans, if the extension would cause the payment to be made
in the next following calendar month, then such payment shall instead
be made on the next preceding Business Day.
(b) (i) Funding by Lenders; Presumption by Administrative
Agent. Unless the Administrative Agent shall have received notice from
a Lender prior to the proposed date of any Revolving Loan that such
Lender will not make available to the Administrative Agent such
Lender's share of such Revolving Loan, the Administrative Agent may
assume that such Lender has made such share available on such date in
accordance with Section 2.1 and may, in reliance upon such assumption,
make available to the Borrower a corresponding amount. In such event,
if a Lender has not in fact made its share of the applicable Revolving
Loan available to the Administrative Agent, then the applicable Lender
and the applicable Borrower severally agree to pay to the
Administrative Agent forthwith on demand such corresponding amount in
immediately available funds with interest thereon, for each day from
and including the date such amount is made available to such Borrower
to but excluding the date of payment to the Administrative Agent, at
(A) in the case of a payment to be made by such Lender, the greater of
the Federal Funds Rate and a rate determined by the Administrative
Agent in accordance with banking industry rules on interbank
compensation and (B) in the case of a payment to be made by the
Borrower, the interest rate applicable to Base Rate Loans. If such
Borrower and such Lender shall pay such interest to the Administrative
Agent for the same or an overlapping period, the Administrative Agent
shall promptly remit to such Borrower the amount of such interest paid
by such Borrower for such period. If such Lender pays its share of the
applicable Revolving Loan to the Administrative Agent, then the amount
so paid shall constitute such Lender's Revolving Loan Commitment
Percentage included in such Revolving Loan. Any payment by a Borrower
shall be without prejudice to any claim such Borrower may have against
a Lender that shall have failed to make such payment to the
Administrative Agent.
(ii) Payments by Borrowers; Presumptions by Administrative
Agent. Unless the Administrative Agent shall have received notice from
a Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing
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Lender hereunder that such Borrower will not make such payment, the
Administrative Agent may assume that such Borrower has made such
payment on such date in accordance herewith and may, in reliance upon
such assumption, distribute to the Lenders or the Issuing Lender, as
the case may be, the amount due. In such event, if such Borrower has
not in fact made such payment, then each of the Lenders or the Issuing
Lender, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to
such Lender or the Issuing Lender, in immediately available funds with
interest thereon, for each day from and including the date such amount
is distributed to it to but excluding the date of payment to the
Administrative Agent, at the greater of the Federal Funds Rate and a
rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
A notice of the Administrative Agent to any Lender or any Borrower with
respect to any amount owing under this subsection (b) shall be
conclusive, absent manifest error.
(c) Obligations of Lenders Several. The obligations of the
Lenders hereunder to make Revolving Loans, to fund participations in
Letters of Credit and Swingline Loans and to make payments pursuant to
Section 11.6(c) are several and not joint. The failure of any Lender to
make any Loan, to fund any such participation or to make any payment
under Section 11.6(c) on any date required hereunder shall not relieve
any other Lender of its corresponding obligation to do so on such date,
and no Lender shall be responsible for the failure of any other Lender
to so make its Loan, to purchase its participation or to make its
payment under Section 11.6(c).
3.3 PREPAYMENTS.
(a) Voluntary Prepayments. The Borrowers shall have the right
to prepay Loans in whole or in part from time to time without premium
or penalty; provided, however, that (i) Eurodollar Loans may only be
prepaid on three Business Days' prior written notice to the
Administrative Agent and (ii) each such partial prepayment of Loans
shall be in the minimum principal amount of $3,000,000 and integral
multiples of $500,000 in excess thereof. All prepayments under this
Section shall be subject to Section 3.14, shall be applied to the Loans
and L/C Obligations as the Borrowers may elect and shall be accompanied
by interest on the principal amount prepaid through the date of
prepayment; provided that if the Borrowers fail to specify how a
prepayment should be applied, then such prepayment shall be applied
first to Revolving Loans (first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period maturities) and
then to Swingline Loans.
(b) Mandatory Prepayments.
(i) Revolving Committed Amount. If at any time the
sum of the aggregate amount of Revolving Loans outstanding
plus L/C Obligations outstanding plus Swingline Loans
outstanding exceeds the Revolving Committed Amount, the Parent
shall immediately make a principal payment to the
Administrative Agent in the manner and in an amount such that
the sum of the aggregate amount of Revolving Loans outstanding
plus L/C Obligations outstanding plus Swingline Loans
outstanding is less than or equal to the Revolving Committed
Amount (to be applied as set forth in Section 3.3(b)(ii)
below).
(ii) Prepayments on Senior Notes and 2003 Senior
Notes. Contemporaneously with any prepayment of (i) the Senior
Notes pursuant to Section 8.3 of the Note Purchase Agreements
or (ii) the 2003 Senior Notes pursuant to Section 8.3 of the
2003 Note Purchase Agreement, the Borrowers shall make a
principal payment to the Administrative Agent in an amount
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necessary to prepay the Loans on a pro rata basis according to
the aggregate unpaid principal amount of the Senior Notes and
the 2003 Senior Notes and the aggregate unpaid principal
amount of the Loans.
(iii) Application of Prepayments. All amounts
required to be paid pursuant to this Section 3.3(b) shall be
applied first to Revolving Loans, second to Swingline Loans
and third to a cash collateral account in respect of L/C
Obligations. Within the foregoing parameters, prepayments
shall be applied first to Base Rate Loans and then to
Eurodollar Loans in direct order of Interest Period
maturities. All prepayments hereunder shall be subject to
Section 3.14 and shall be accompanied by interest on the
principal amount prepaid through the date of prepayment.
3.4 TERMINATION AND REDUCTION OF REVOLVING COMMITTED AMOUNT.
(a) Voluntary Reduction. The Parent may from time to time
permanently reduce or terminate (without premium or penalty) the
Revolving Committed Amount in whole or in part (in minimum aggregate
amounts of $5,000,000 or in integral multiples of $1,000,000 in excess
thereof (or, if less, the full remaining amount of the then applicable
Revolving Committed Amount)) upon three Business Days' prior written
notice to the Administrative Agent; provided, that, no such termination
or reduction shall be made which would cause the sum of the aggregate
outstanding principal amount of the Revolving Loans plus the aggregate
amount of outstanding L/C Obligations plus the aggregate outstanding
principal amount of Swingline Loans to exceed the Revolving Committed
Amount, unless, concurrently with such termination or reduction, the
Loans are repaid to the extent necessary to eliminate such excess. Any
reduction in (or termination of) the Revolving Committed Amount shall
be permanent and may not be reinstated. The Administrative Agent shall
promptly notify each affected Lender of receipt by the Administrative
Agent of any notice from the Parent pursuant to this Section 3.4(a).
(b) Mandatory Reduction.
(i) Asset Dispositions. To the extent the asset
dispositions permitted by Section 8.5(e) of this Credit
Agreement exceed $50,000,000 in the aggregate during the
period from the Closing Date to the Maturity Date, the
Revolving Committed Amount shall be immediately and
permanently reduced by the amount by which such permitted
asset dispositions exceed $50,000,000 in the aggregate during
such period.
(ii) Sale Leasebacks. To the extent the sale
leaseback transactions permitted hereunder exceed $6,000,000
in the aggregate during any fiscal year, the Revolving
Committed Amount shall be immediately and permanently reduced
by the amount by which such sale leaseback transactions exceed
$6,000,000 in the aggregate during any fiscal year.
(iii) Prepayments on Senior Notes and 2003 Senior
Notes. Immediately upon the occurrence of any voluntary or
optional prepayment of (i) the Senior Notes pursuant to
Section 8.2 of the Note Purchase Agreements or (ii) the 2003
Senior Notes pursuant to Section 8.2 of the 2003 Note Purchase
Agreement, the Revolving Committed Amount shall be permanently
reduced on a pro rata basis according to the aggregate unpaid
principal amount of the Senior Notes and the 2003 Senior Notes
and the amount of the Revolving Committed Amount on the date
of such prepayment.
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(iv) Notification. The Administrative Agent shall
promptly notify the Lenders of any reduction of the Revolving
Committed Amount pursuant to this Section 3.4(b).
3.5 FEES.
(a) Unused Fees. In consideration of the Revolving Committed
Amount being made available by the Lenders hereunder, the Borrowers
agree to pay to the Administrative Agent, for the pro rata benefit of
each Lender (based on each Lender's Revolving Loan Commitment
Percentage of the Revolving Committed Amount), a per annum fee equal to
the Applicable Percentage for Unused Fees multiplied by the Unused
Commitment (the "Unused Fees"). The Unused Fees shall commence to
accrue on the Closing Date and shall be due and payable in arrears on
the last Business Day of each fiscal quarter of the Parent (as well as
on the Maturity Date and on any date that the Revolving Committed
Amount is reduced) for the fiscal quarter then ending (or portion
thereof), beginning with the first of such dates to occur after the
Closing Date. For purposes of computation of the Unused Fees, the
Swingline Loans shall not be counted toward or considered usage of the
Revolving Committed Amount.
(b) Letter of Credit Fees. In consideration of the issuance of
Letters of Credit hereunder, the Borrowers agree to pay to the Issuing
Lender for the pro rata benefit of the Lenders (based on each Lender's
Revolving Loan Commitment Percentage of the Revolving Committed
Amount), a per annum fee (the "Letter of Credit Fees") equal to the
Applicable Percentage for the Letter of Credit Fees on the actual daily
amount available to be drawn under each such Letter of Credit from the
date of issuance to the date of expiration. The Letter of Credit Fees
shall commence to accrue on the Closing Date and shall be due and
payable in arrears on the last Business Day of each fiscal quarter of
the Parent (as well as on the Maturity Date) for the fiscal quarter
then ending (or portion thereof), beginning with the first of such
dates to occur after the Closing Date.
(c) Issuing Lender Fees. In addition to the Letter of Credit
Fees payable pursuant to subsection (b) above, the Borrowers shall pay
to the Issuing Lender for its own account, without sharing by the other
Lenders, (i) a letter of credit fronting fee equal to 0.125% of the
face amount of each Letter of Credit, such fee to be due and payable in
arrears on the last Business Day of each fiscal quarter of the Parent
(as well as on the Maturity Date) for the fiscal quarter then ending
and for the Letters of Credit issued during such fiscal quarter and
(ii) the customary charges from time to time to the Issuing Lender for
its services in connection with the issuance, amendment, payment,
transfer, administration, cancellation and conversion of, and drawings
under, Letters of Credit.
(d) Administrative Fees. The Parent agrees to pay to the
Administrative Agent, for its own account, an annual fee in accordance
with the terms of the Administrative Agent Fee Letter.
3.6 PAYMENT IN FULL AT MATURITY.
On the Maturity Date, the entire outstanding principal balance of all
Revolving Loans, all Swingline Loans and all L/C Obligations, together with
accrued but unpaid interest and all other sums owing with respect thereto, shall
be due and payable in full, unless accelerated sooner pursuant to Section 9.2.
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3.7 COMPUTATIONS OF INTEREST AND FEES.
(a) Except for Base Rate Loans, in which case interest shall
be computed on the basis of a 365 or 366 day year as the case may be,
all computations of interest and fees hereunder shall be made on the
basis of the actual number of days elapsed over a year of 360 days.
Interest shall accrue from and include the date of borrowing (or
continuation or conversion) but exclude the date of payment.
(b) It is the intent of the Lenders and the Credit Parties to
conform to and contract in strict compliance with applicable usury law
from time to time in effect. All agreements between the Lenders and the
Borrowers are hereby limited by the provisions of this paragraph which
shall override and control all such agreements, whether now existing or
hereafter arising and whether written or oral. In no way, nor in any
event or contingency (including but not limited to prepayment or
acceleration of the maturity of any obligation), shall the interest
taken, reserved, contracted for, charged, or received under this Credit
Agreement, under the Notes or otherwise, exceed the maximum nonusurious
amount permissible under applicable law. If, from any possible
construction of any of the Credit Documents or any other document,
interest would otherwise be payable in excess of the maximum
nonusurious amount, any such construction shall be subject to the
provisions of this paragraph and such documents shall be automatically
reduced to the maximum nonusurious amount permitted under applicable
law, without the necessity of execution of any amendment or new
document. If any Lender shall ever receive anything of value which is
characterized as interest on the Loans under applicable law and which
would, apart from this provision, be in excess of the maximum lawful
amount, an amount equal to the amount which would have been excessive
interest shall, without penalty, be applied to the reduction of the
principal amount owing on the Loans and not to the payment of interest,
or refunded to the Borrowers or the other payor thereof if and to the
extent such amount which would have been excessive exceeds such unpaid
principal amount of the Loans. The right to demand payment of the Loans
or any other indebtedness evidenced by any of the Credit Documents does
not include the right to accelerate the payment of any interest which
has not otherwise accrued on the date of such demand, and the Lenders
do not intend to charge or receive any unearned interest in the event
of such demand. All interest paid or agreed to be paid to the Lenders
with respect to the Loans shall, to the extent permitted by applicable
law, be amortized, prorated, allocated, and spread throughout the full
stated term (including any renewal or extension) of the Loans so that
the amount of interest on account of such indebtedness does not exceed
the maximum nonusurious amount permitted by applicable law.
3.8 SHARING OF PAYMENTS.
The Lenders agree among themselves that, except to the extent otherwise
provided herein, in the event that any Lender shall obtain payment in respect of
any Loan, unreimbursed drawing with respect to any L/C Obligations or any other
obligation owing to such Lender under this Credit Agreement through the exercise
of a right of setoff, banker's lien or counterclaim, or pursuant to a secured
claim under Section 506 of the Bankruptcy Code or other security or interest
arising from, or in lieu of, such secured claim, received by such Lender under
any applicable bankruptcy, insolvency or other similar law or otherwise, or by
any other means, in excess of its pro rata share of such payment as provided for
in this Credit Agreement, such Lender shall promptly pay in cash or purchase
from the other Lenders a participation in such Loans, L/C Obligations, and other
obligations in such amounts, and make such other adjustments from time to time,
as shall be equitable to the end that all Lenders share such payment in
accordance with their respective ratable shares as provided for in this Credit
Agreement. The Lenders further agree among themselves that if payment to a
Lender obtained by such Lender through the exercise of a right of setoff,
banker's lien, counterclaim or other event as aforesaid shall be rescinded or
must otherwise be restored, each Lender which shall have shared the benefit of
41
such payment shall, by payment in cash or a repurchase of a participation
theretofore sold, return its share of that benefit (together with its share of
any accrued interest payable with respect thereto) to each Lender whose payment
shall have been rescinded or otherwise restored. The Credit Parties agree that
any Lender so purchasing such a participation may, to the fullest extent
permitted by law, exercise all rights of payment, including setoff, banker's
lien or counterclaim, with respect to such participation as fully as if such
Lender were a holder of such Loan, L/C Obligation or other obligation in the
amount of such participation. Except as otherwise expressly provided in this
Credit Agreement, if any Lender shall fail to remit to the any Agent or any
other Lender an amount payable by such Lender to such Agent or such other Lender
pursuant to this Credit Agreement on the date when such amount is due, such
payments shall be made together with interest thereon for each date from the
date such amount is due until the date such amount is paid to such Agent or such
other Lender, if paid within two Business Days of the date when such amount is
due, at a rate per annum equal to the Federal Funds Rate and thereafter at a
rate per annum equal to the Base Rate. If under any applicable bankruptcy,
insolvency or other similar law, any Lender receives a secured claim in lieu of
a setoff to which this Section 3.8 applies, such Lender shall, to the extent
practicable, exercise its rights in respect of such secured claim in a manner
consistent with the rights of the Lenders under this Section 3.8 to share in the
benefits of any recovery on such secured claim.
3.9 CAPITAL ADEQUACY.
(a) If, after the date hereof, any Lender has determined that
the adoption or the becoming effective of, or any change in, or any
change by any Governmental Authority, central bank or comparable agency
charged with the interpretation or administration thereof in the
interpretation or administration of, any applicable law, rule or
regulation regarding capital adequacy, or compliance by such Lender, or
its parent corporation, with any request or directive regarding capital
adequacy (whether or not having the force of law) of any such
authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on such Lender's (or parent
corporation's) capital or assets as a consequence of its commitments or
obligations hereunder to a level below that which such Lender, or its
parent corporation, could have achieved but for such adoption,
effectiveness, change or compliance (taking into consideration such
Lender's (or parent corporation's) policies with respect to capital
adequacy), then, upon written notice from such Lender to the Parent
(together with documentation supporting such claim; provided that
failure to provide such documentation shall not impair a Lender's claim
hereunder), the Borrowers shall be obligated to pay to such Lender such
additional amount or amounts as will compensate such Lender on an
after-tax basis (after taking into account applicable deductions and
credits in respect of the amount indemnified) for such reduction. Each
determination by any such Lender of amounts owing under this Section
shall, absent manifest error, be conclusive and binding on the parties
hereto. This covenant shall survive the termination of this Credit
Agreement and the payment of the Loans and all other amounts payable
hereunder.
(b) Each Lender shall promptly notify the Parent and the
Administrative Agent of any event of which it has knowledge, occurring
after the Closing Date, which will entitle such Lender to compensation
pursuant to this Section and will designate a different lending office
if such designation will avoid the need for, or reduce the amount of,
such compensation and will not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to it. Any Lender claiming
compensation under this Section shall furnish to the Parent and the
Administrative Agent a statement setting forth the additional amount or
amounts to be paid to it hereunder which shall be conclusive in the
absence of manifest error. In determining such amount, such Lender may
use any reasonable averaging and attribution methods.
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3.10 INABILITY TO DETERMINE INTEREST RATE.
If prior to the first day of any Interest Period, the Administrative
Agent shall have determined in good faith (which determination shall be
conclusive and binding upon the Borrowers) that, by reason of circumstances
affecting the relevant market, adequate and reasonable means do not exist for
ascertaining the Eurodollar Rate for such Interest Period, the Administrative
Agent shall give telecopy or telephonic notice thereof to the Parent and the
Lenders as soon as practicable thereafter, and will also give prompt written
notice to the Parent when such conditions no longer exist. If such notice is
given (a) any Eurodollar Loans requested to be made on the first day of such
Interest Period shall be made as Base Rate Loans, (b) any Loans that were to
have been converted on the first day of such Interest Period to or continued as
Eurodollar Loans shall be converted to or continued as Base Rate Loans and (c)
any outstanding Eurodollar Loans shall be converted, on the first day of such
Interest Period, to Base Rate Loans. Until such notice is withdrawn by the
Administrative Agent, no further Eurodollar Loans shall be made or continued as
such, nor shall the Borrowers have the right to convert Base Rate Loans to
Eurodollar Loans.
3.11 ILLEGALITY.
Notwithstanding any other provision herein, if the adoption of or any
change in any Requirement of Law or in the interpretation or application thereof
occurring after the Closing Date shall make it unlawful for any Lender to make
or maintain Eurodollar Loans as contemplated by this Credit Agreement, (a) such
Lender shall promptly give written notice of such circumstances to the Parent
and the Administrative Agent (which notice shall be withdrawn whenever such
circumstances no longer exist), (b) the commitment of such Lender hereunder to
make Eurodollar Loans, continue Eurodollar Loans as such and convert a Base Rate
Loan to Eurodollar Loans shall forthwith be canceled and, until such time as it
shall no longer be unlawful for such Lender to make or maintain Eurodollar
Loans, such Lender shall then have a commitment only to make a Base Rate Loan
when a Eurodollar Loan is requested and (c) such Lender's Loans then outstanding
as Eurodollar Loans, if any, shall be converted automatically to Base Rate Loans
on the respective last days of the then current Interest Periods with respect to
such Loans or within such earlier period as required by law. If any such
conversion of a Eurodollar Loan occurs on a day which is not the last day of the
then current Interest Period with respect thereto, the Borrowers shall pay to
such Lender such amounts, if any, as may be required pursuant to Section 3.14.
3.12 REQUIREMENTS OF LAW.
If the adoption of or any change in any Requirement of Law or in the
interpretation or application thereof applicable to any Lender, or compliance by
any Lender with any request or directive (whether or not having the force of
law) from any central bank or other Governmental Authority, in each case made
subsequent to the Closing Date (or, if later, the date on which such Lender
becomes a Lender):
(a) shall subject such Lender to any tax of any kind
whatsoever with respect to any Letter of Credit, any Eurodollar Loans
made by it or its obligation to make Eurodollar Loans, or change the
basis of taxation of payments to such Lender in respect thereof (except
for Non-Excluded Taxes covered by Section 3.13 (including Non-Excluded
Taxes imposed solely by reason of any failure of such Lender to comply
with its obligations under Section 3.13(b)) and changes in taxes
measured by or imposed upon the overall net income, or franchise taxes,
branch taxes, taxes on doing business or taxes on capital or net worth
(imposed in lieu of such net income tax), of such Lender or its
applicable lending office, branch, or any affiliate thereof);
(b) shall impose, modify or hold applicable any reserve,
special deposit, compulsory loan or similar requirement against assets
held by, deposits or other liabilities in or for the account of,
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advances, loans or other extensions of credit by, or any other
acquisition of funds by, any office of such Lender which is not
otherwise included in the determination of the Eurodollar Rate
hereunder; or
(c) shall impose on such Lender any other condition (excluding
any tax of any kind whatsoever);
and the result of any of the foregoing is to increase the cost to such Lender,
by an amount which such Lender deems to be material, of making, converting into,
continuing or maintaining Eurodollar Loans or issuing or participating in
Letters of Credit or to reduce any amount receivable hereunder in respect
thereof, then, in any such case, upon notice to the Parent from such Lender,
through the Administrative Agent, in accordance herewith, the Borrowers shall be
obligated to promptly pay such Lender, upon its demand, any additional amounts
necessary to compensate such Lender on an after-tax basis (after taking into
account applicable deductions and credits in respect of the amount indemnified)
for such increased cost or reduced amount receivable, provided that, in any such
case, the Borrowers may elect to convert the Eurodollar Loans made by such
Lender hereunder to Base Rate Loans by giving the Administrative Agent at least
one Business Day's notice of such election, in which case the Borrowers shall
promptly pay to such Lender, upon demand, without duplication, such amounts, if
any, as may be required pursuant to Section 3.14. If any Lender becomes entitled
to claim any additional amounts pursuant to this Section 3.12, it shall provide
prompt notice thereof to the Parent, through the Administrative Agent,
certifying (x) that one of the events described in this Section 3.12 has
occurred and describing in reasonable detail the nature of such event, (y) as to
the increased cost or reduced amount resulting from such event and (z) as to the
additional amount demanded by such Lender and a reasonably detailed explanation
of the calculation thereof. Such a certificate as to any additional amounts
payable pursuant to this Section 3.12 submitted by such Lender, through the
Administrative Agent, to the Parent shall be conclusive and binding on the
parties hereto in the absence of manifest error. This covenant shall survive the
termination of this Credit Agreement and the payment of the Loans and all other
amounts payable hereunder.
3.13 TAXES.
(a) Payments Free of Taxes. Any and all payments by or on
account of any obligation of the respective Borrower hereunder or under
any other Credit Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes,
provided that if the applicable Borrower shall be required by
applicable law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased
as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section)
the Administrative Agent, Lender or Issuing Lender, as the case may be,
receives an amount equal to the sum it would have received had no such
deductions been made, (ii) such Borrower shall make such deductions and
(iii) such Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with applicable law.
(b) Payment of Other Taxes by the Borrowers. Without limiting
the provisions of subsection (a) above, each Borrower shall timely pay
any Other Taxes to the relevant Governmental Authority in accordance
with applicable law.
(c) Indemnification by the Borrower. Each Borrower shall
indemnify the Administrative Agent, each Lender and the Issuing Lender,
within 10 days after demand therefor, for the full amount of any
Indemnified Taxes or Other Taxes (including Indemnified Taxes or Other
Taxes imposed or asserted on or attributable to amounts payable under
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this Section) paid by the Administrative Agent, such Lender or the
Issuing Lender, as the case may be, and any penalties, interest and
reasonable expenses arising therefrom or with respect thereto, whether
or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to
a Borrower by a Lender or the Issuing Lender (with a copy to the
Administrative Agent), or by the Administrative Agent on its own behalf
or on behalf of a Lender or the Issuing Lender, shall be conclusive
absent manifest error.
(d) Evidence of Payments. As soon as practicable after any
payment of Indemnified Taxes or Other Taxes by any Borrower to a
Governmental Authority, such Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt
issued by such Governmental Authority evidencing such payment, a copy
of the return reporting such payment or other evidence of such payment
reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders. Any Foreign Lender that is entitled to
an exemption from or reduction of withholding tax under the law of the
jurisdiction in which the Parent is resident for tax purposes, or any
treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Credit Document shall deliver to the
Parent (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law or reasonably requested by the Parent or
the Administrative Agent, such properly completed and executed
documentation prescribed by applicable law as will permit such payments
to be made without withholding or at a reduced rate of withholding. In
addition, any Lender, if requested by the Parent or the Administrative
Agent, shall deliver such other documentation prescribed by applicable
law or reasonably requested by the Parent or the Administrative Agent
as will enable the Parent or the Administrative Agent to determine
whether or not such Lender is subject to backup withholding or
information reporting requirements.
Without limiting the generality of the foregoing, in the event
that such Borrower is resident for tax purposes in the United States,
any Foreign Lender shall deliver to the Parent and the Administrative
Agent (in such number of copies as shall be requested by the recipient)
on or prior to the date on which such Foreign Lender becomes a Lender
under this Credit Agreement (and from time to time thereafter upon the
request of the Parent or the Administrative Agent, but only if such
Foreign Lender is legally entitled to do so), whichever of the
following is applicable:
(i) duly completed copies of Internal Revenue Service
Form W-8BEN claiming eligibility for benefits of an income tax
treaty to which the United States is a party,
(ii) duly completed copies of Internal Revenue
Service Form W-8ECI,
(iii) in the case of a Foreign Lender claiming the
benefits of the exemption for portfolio interest under section
881(c) of the Code, (x) a certificate to the effect that such
Foreign Lender is not (A) a "bank" within the meaning of
section 881(c)(3)(A) of the Code, (B) a "10 percent
shareholder" of the applicable Borrower within the meaning of
section 881(c)(3)(B) of the Code, or (C) a "controlled foreign
corporation" described in section 881(c)(3)(C) of the Code and
(y) duly completed copies of Internal Revenue Service Form
W-8BEN, or
(iv) any other form prescribed by applicable law as a
basis for claiming exemption from or a reduction in United
States Federal withholding tax duly completed together with
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such supplementary documentation as may be prescribed by
applicable law to permit the Parent to determine the
withholding or deduction required to be made.
(f) Treatment of Certain Refunds. If the Administrative Agent,
any Lender or the Issuing Lender determines, in its sole discretion,
that it has received a refund of any Taxes or Other Taxes as to which
it has been indemnified by a Borrower or with respect to which any
Borrower has paid additional amounts pursuant to this Section, it shall
pay to such Borrower an amount equal to such refund (but only to the
extent of indemnity payments made, or additional amounts paid, by such
Borrower under this Section with respect to the Taxes or Other Taxes
giving rise to such refund), net of all out-of-pocket expenses of the
Administrative Agent, such Lender or the Issuing Lender, as the case
may be, and without interest (other than any interest paid by the
relevant Governmental Authority with respect to such refund), provided
that such Borrower, upon the request of the Administrative Agent, such
Lender or the Issuing Lender, agrees to repay the amount paid over to
such Borrower (plus any penalties, interest or other charges imposed by
the relevant Governmental Authority) to the Administrative Agent, such
Lender or the Issuing Lender in the event the Administrative Agent,
such Lender or the Issuing Lender is required to repay such refund to
such Governmental Authority. This subsection shall not be construed to
require the Administrative Agent, any Lender or the Issuing Lender to
make available its tax returns (or any other information relating to
its taxes that it deems confidential) to any Borrower or any other
Person.
3.14 COMPENSATION.
The Credit Parties promise to indemnify each Lender and to hold each
Lender harmless from any loss or expense which such Lender may sustain or incur
as a consequence of (a) default by any Borrower in making a borrowing of,
conversion into or continuation of Eurodollar Loans after a Borrower has given a
notice requesting the same in accordance with the provisions of this Credit
Agreement, (b) default by any Borrower in making any prepayment of a Eurodollar
Loan after a Borrower has given a notice thereof in accordance with the
provisions of this Credit Agreement and (c) the making of a prepayment of
Eurodollar Loans on a day which is not the last day of an Interest Period with
respect thereto. Such indemnification may include an amount equal to (i) the
amount of interest which would have accrued on the amount so prepaid, or not so
borrowed, converted or continued, for the period from the date of such
prepayment or of such failure to borrow, convert or continue to the last day of
the applicable Interest Period (or, in the case of a failure to borrow, convert
or continue, the Interest Period that would have commenced on the date of such
failure) in each case at the applicable rate of interest for such Eurodollar
Loans provided for herein (excluding, however, the Applicable Percentage
included therein, if any) minus (ii) the amount of interest (as reasonably
determined by such Lender) which would have accrued to such Lender on such
amount by placing such amount on deposit for a comparable period with leading
banks in the interbank Eurodollar market. The agreements in this Section shall
survive the termination of this Credit Agreement and the payment of the Loans
and all other amounts payable hereunder.
3.15 EVIDENCE OF DEBT.
(a) Each Lender shall maintain an account or accounts
evidencing each Loan made by such Lender to the Borrowers from time to
time, including the amounts of principal and interest payable and paid
to such Lender from time to time under this Credit Agreement. Each
Lender will make reasonable efforts to maintain the accuracy of its
account or accounts and to promptly update its account or accounts from
time to time, as necessary.
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(b) The Administrative Agent shall maintain the Register
pursuant to Section 11.3(c), and a subaccount for each Lender, in which
Register and subaccounts (taken together) shall be recorded (i) the
amount, type and Interest Period of each such Loan hereunder, (ii) the
amount of any principal or interest due and payable or to become due
and payable to each Lender hereunder, and (iii) the amount of any sum
received by the Administrative Agent hereunder from or for the account
of the Borrowers and each Lender's share thereof, if any. The
Administrative Agent will make reasonable efforts to maintain the
accuracy of the subaccounts referred to in the preceding sentence and
to promptly update such subaccounts from time to time, as necessary.
(c) The entries made in the accounts, Register and subaccounts
maintained pursuant to subsection (b) of this Section 3.15 (and, if
consistent with the entries of the Administrative Agent, subsection
(a)) shall be prima facie evidence of the existence and amounts of the
obligations of the Borrowers therein recorded; provided, however, that
the failure of any Lender or the Administrative Agent to maintain such
account, such Register, or such subaccount, as applicable, or any error
therein, shall not in any manner affect the obligation of the Borrowers
to repay the Loans made by such Lender in accordance with the terms
hereof.
SECTION 4
GUARANTY
4.1 GUARANTY OF PAYMENT.
Subject to Section 4.7 below, each of the Guarantors hereby, jointly
and severally, unconditionally guarantees to each Lender, each Affiliate of
Lender that enters into a Hedging Agreement and the Administrative Agent the
prompt payment of the Credit Party Obligations in full when due (whether at
stated maturity, as a mandatory prepayment, by acceleration or otherwise). This
Guaranty is a guaranty of payment and not of collection and is a continuing
guaranty and shall apply to all Credit Party Obligations whenever arising.
4.2 OBLIGATIONS UNCONDITIONAL.
The obligations of the Guarantors hereunder are absolute and
unconditional, irrespective of the value, genuineness, validity, regularity or
enforceability of any of the Credit Documents or the Hedging Agreements, or any
other agreement or instrument referred to therein, to the fullest extent
permitted by applicable law, irrespective of any other circumstance whatsoever
which might otherwise constitute a legal or equitable discharge or defense of a
surety or guarantor. Each Guarantor agrees that this Guaranty may be enforced by
the Lenders without the necessity at any time of resorting to or exhausting any
other security or collateral and without the necessity at any time of having
recourse to the Notes or any other of the Credit Documents or any collateral, if
any, hereafter securing the Credit Party Obligations or otherwise and each
Guarantor hereby waives the right to require the Lenders to proceed against the
Borrowers or any other Person (including a co-guarantor) or to require the
Lenders to pursue any other remedy or enforce any other right. Each Guarantor
further agrees that it shall have no right of subrogation, indemnity,
reimbursement or contribution against any Borrower or any other Guarantor of the
Credit Party Obligations for amounts paid under this Guaranty until such time as
the Lenders (and any Affiliates of Lenders entering into Hedging Agreements)
have been paid in full, all Commitments under the Credit Agreement have been
terminated and no Person or Governmental Authority shall have any right to
request any return or reimbursement of funds from the Lenders in connection with
47
monies received under the Credit Documents. Each Guarantor further agrees that
nothing contained herein shall prevent the Lenders from suing on the Notes or
any of the other Credit Documents or any of the Hedging Agreements or
foreclosing its security interest in or Lien on any collateral, if any, securing
the Credit Party Obligations or from exercising any other rights available to it
under this Credit Agreement, the Notes, any other of the Credit Documents, or
any other instrument of security, if any, and the exercise of any of the
aforesaid rights and the completion of any foreclosure proceedings shall not
constitute a discharge of any of any Guarantor's obligations hereunder; it being
the purpose and intent of each Guarantor that its obligations hereunder shall be
absolute, independent and unconditional under any and all circumstances. Neither
any Guarantor's obligations under this Guaranty nor any remedy for the
enforcement thereof shall be impaired, modified, changed or released in any
manner whatsoever by an impairment, modification, change, release or limitation
of the liability of any Borrower or by reason of the bankruptcy or insolvency of
any Borrower. Each Guarantor waives any and all notice of the creation, renewal,
extension or accrual of any of the Credit Party Obligations and notice of or
proof of reliance of by any Agent or any Lender upon this guaranty or acceptance
of this guaranty. The Credit Party Obligations, and any of them, shall
conclusively be deemed to have been created, contracted or incurred, or renewed,
extended, amended or waived, in reliance upon this guaranty. All dealings
between any Borrower and any of the Guarantors, on the one hand, and the Agents
and the Lenders, on the other hand, likewise shall be conclusively presumed to
have been had or consummated in reliance upon this guaranty. The Guarantors
further agree to all rights of set-off as set forth in Section 11.2.
4.3 MODIFICATIONS.
Each Guarantor agrees that (a) all or any part of the Collateral now or
hereafter held for the Credit Party Obligations, if any, may be exchanged,
compromised or surrendered from time to time; (b) the Lenders shall not have any
obligation to protect, perfect, secure or insure any such security interests,
liens or encumbrances now or hereafter held, if any, for the Credit Party
Obligations or the properties subject thereto; (c) the time or place of payment
of the Credit Party Obligations may be changed or extended, in whole or in part,
to a time certain or otherwise, and may be renewed or accelerated, in whole or
in part; (d) any Borrower and any other party liable for payment under the
Credit Documents may be granted indulgences generally; (e) any of the provisions
of the Notes or any of the other Credit Documents may be modified, amended or
waived; (f) any party (including any co-guarantor) liable for the payment
thereof may be granted indulgences or be released; and (g) any deposit balance
for the credit of any Borrower or any other party liable for the payment of the
Credit Party Obligations or liable upon any security therefor may be released,
in whole or in part, at, before or after the stated, extended or accelerated
maturity of the Credit Party Obligations, all without notice to or further
assent by such Guarantor, which shall remain bound thereon, notwithstanding any
such exchange, compromise, surrender, extension, renewal, acceleration,
modification, indulgence or release.
4.4 WAIVER OF RIGHTS.
Each Guarantor expressly waives to the fullest extent permitted by
applicable law: (a) notice of acceptance of this Guaranty by the Lenders and of
all extensions of credit to any Borrower by the Lenders; (b) presentment and
demand for payment or performance of any of the Credit Party Obligations; (c)
protest and notice of dishonor or of default (except as specifically required in
the Credit Agreement) with respect to the Credit Party Obligations or with
respect to any security therefor; (d) notice of the Lenders obtaining, amending,
substituting for, releasing, waiving or modifying any security interest, lien or
encumbrance, if any, hereafter securing the Credit Party Obligations, or the
Lenders' subordinating, compromising, discharging or releasing such security
interests, liens or encumbrances, if any; (e) all other notices to which such
Guarantor might otherwise be entitled; and (f) demand for payment under this
Guaranty.
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4.5 REINSTATEMENT.
The obligations of the Guarantors under this Section 4 shall be
automatically reinstated if and to the extent that for any reason any payment by
or on behalf of any Person in respect of the Credit Party Obligations is
rescinded or must be otherwise restored by any holder of any of the Credit Party
Obligations, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, and each Guarantor agrees that it will indemnify
the Agents and each Lender promptly upon demand for all reasonable costs and
expenses (including, without limitation, reasonable fees of counsel) incurred by
an Agent or such Lender in connection with such rescission or restoration,
including any such costs and expenses incurred in defending against any claim
alleging that such payment constituted a preference, fraudulent transfer or
similar payment under any bankruptcy, insolvency or similar law. Upon the
request of the Parent, an Agent or a Lender will provide written support for any
claim made pursuant to this Section 4.5; provided that failure to provide such
written support shall not impair a Lender's or an Agent's claim hereunder.
4.6 REMEDIES.
The Guarantors agree that, to the fullest extent permitted by law, as
between the Guarantors, on the one hand, and the Agents and the Lenders, on the
other hand, the Credit Party Obligations may be declared to be forthwith due and
payable as provided in Section 9.2 (and shall be deemed to have become
automatically due and payable in the circumstances provided in Section 9.2)
notwithstanding any stay, injunction or other prohibition preventing such
declaration (or preventing such Credit Party Obligations from becoming
automatically due and payable) as against any other Person and that, in the
event of such declaration (or such Credit Party Obligations being deemed to have
become automatically due and payable), such Credit Party Obligations (whether or
not due and payable by any other Person) shall forthwith become due and payable
by the Guarantors. The Guarantors acknowledge and agree that their obligations
hereunder are secured in accordance with the terms of the Collateral Documents
and that the Lenders may exercise their remedies thereunder in accordance with
the terms thereof.
4.7 LIMITATION OF GUARANTY.
Notwithstanding any provision to the contrary contained herein or in
any other of the Credit Documents, the obligations of each Guarantor under this
Credit Agreement and the other Credit Documents shall be limited to an aggregate
amount equal to the largest amount that would not render such obligations
subject to avoidance under the Debtor Relief Laws or any comparable provisions
of any applicable state law.
4.8 RIGHTS OF CONTRIBUTION.
The Guarantors hereby agree as among themselves that, in connection
with payments made hereunder, each Guarantor shall have a right of contribution
from each other Guarantor in accordance with applicable Law. Such contribution
rights shall be subordinate and subject in right of payment to the Credit Party
Obligations until such time as the Credit Party Obligations have been
irrevocably paid in full and the commitments relating thereto shall have expired
or been terminated, and none of the Guarantors shall exercise any such
contribution rights until the Credit Party Obligations have been irrevocably
paid in full and the commitments relating thereto shall have expired or been
terminated.
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SECTION 5
CONDITIONS PRECEDENT
5.1 CLOSING CONDITIONS.
The obligation of the Lenders to enter into this Credit Agreement and
make the initial Extension of Credit is subject to satisfaction (or waiver by
the Administrative Agent with the consent of the Required Lenders) of the
following conditions each in form and substance reasonably satisfactory to the
Administrative Agent and each of the Lenders:
(a) Executed Credit Documents. Receipt by the Administrative
Agent of duly executed copies of: (i) this Credit Agreement; (ii) the
Notes; (iii) the Collateral Documents; and (iv) all other Credit
Documents, each in form and substance reasonably acceptable to the
Administrative Agent and the Lenders.
(b) Authority Documents. Receipt by the Administrative Agent
of the following:
(i) Charter Documents. Copies of the articles or
certificate of incorporation or other charter documents of
such Credit Party certified to be true and complete as of a
recent date by the appropriate Governmental Authority of the
state or other jurisdiction of its incorporation and certified
by a secretary or assistant secretary of such Credit Party to
be true and correct as of the Closing Date.
(ii) Bylaws. A copy of the bylaws of such Credit
Party certified by a secretary or assistant secretary of such
Credit Party to be true and correct as of the Closing Date.
(iii) Resolutions. Copies of resolutions of the Board
of Directors of such Credit Party approving and adopting the
Credit Documents to which it is a party, the transactions
contemplated therein and authorizing execution and delivery
thereof, certified by a secretary or assistant secretary of
such Credit Party to be true and correct and in force and
effect as of the Closing Date.
(iv) Good Standing. Copies of certificates of good
standing, existence or its equivalent with respect to such
Credit Party certified as of a recent date by the appropriate
Governmental Authorities of the state or other jurisdiction of
incorporation and each other jurisdiction in which the failure
to so qualify and be in good standing would have or be
reasonably expected to have a Material Adverse Effect on the
business or operations of such Credit Party in such
jurisdiction.
(v) Incumbency. An incumbency certificate of such
Credit Party certified by a secretary or assistant secretary
of such Credit Party to be true and correct as of the Closing
Date.
(c) Opinion of Counsel. Receipt by the Administrative Agent of
an opinion or opinions from legal counsel to the Credit Parties (which
shall cover, among other things, authority, legality, validity, binding
effect, and enforceability of the Credit Documents and the attachment,
perfection, and validity of Liens), reasonably satisfactory to the
Administrative Agent, addressed to the Administrative Agent and the
Lenders and dated as of the Closing Date.
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(d) Financial Statements. Receipt by the Lenders of such
financial information regarding the Credit Parties and their
Subsidiaries as they may request, including, but not limited to, (i)
the consolidated financial statements of the Parent and its
Subsidiaries for their three most recently ended fiscal years,
including balance sheets, income statements and cash flow statements
audited by independent public accountants of recognized national
standing and prepared in accordance with GAAP and (ii) unaudited
consolidated financial statements of the Parent and its Subsidiaries,
prepared in accordance with GAAP as of the fiscal quarter ending
September 29, 2004 for the fiscal quarter ending as of such date.
(e) Note Purchase Agreements. The Administrative Agent shall
have received copies, certified by an officer of the Parent as true and
complete, of the Note Purchase Agreements and the 2003 Note Purchase
Agreement (including all exhibits and schedules thereto) as originally
executed and delivered, together with any amendments or modifications
to such Note Purchase Agreements and 2003 Note Purchase Agreement as of
the Closing Date, such agreements, amendments and modifications to be
acceptable to the Lenders.
(f) Collateral. Receipt by the Collateral Agent of all
certificates evidencing any certificated Capital Stock pledged to the
Collateral Agent pursuant to the Pledge Agreement, together with duly
executed in blank, undated stock powers attached thereto.
(g) Litigation. There shall not exist any pending or, to the
knowledge of any Credit Party, threatened action, suit investigation or
proceeding against a Credit Party or any of their Subsidiaries that
would have or reasonably be expected to have a Material Adverse Effect.
(h) Officer's Certificates. The Administrative Agent shall
have received a certificate or certificates executed by a Responsible
Officer of the Parent as of the Closing Date stating that, among other
things, (i) the Credit Parties and each of their Subsidiaries are in
compliance with all existing material financial obligations after
giving effect to the transactions contemplated hereby, (ii) no action,
suit, investigation or proceeding is pending or, to the knowledge of
any Credit Party, threatened in any court or before any arbitrator or
governmental instrumentality that purports to affect the Credit
Parties, any of their Subsidiaries or any transaction contemplated by
the Credit Documents, if such action, suit, investigation or proceeding
would have or be reasonably expected to have a Material Adverse Effect,
(iii) the financial statements and information delivered to the
Administrative Agent on or before the Closing Date were prepared in
good faith and in accordance with GAAP (iv) since December 31, 2003,
there has been no development or event relating to or affecting a
Credit Party or any of its Subsidiaries which would have or be
reasonably expected to have a Material Adverse Effect and (v)
immediately after giving effect to this Credit Agreement, the other
Credit Documents and all the transactions contemplated therein to occur
on such date, (A) the Credit Parties, on a consolidated basis, are
Solvent, (B) no Default or Event of Default exists, (C) all
representations and warranties contained herein and in the other Credit
Documents are true and correct in all material respects, and (D) the
Credit Parties are in compliance with each of the financial covenants
set forth in Section 7.2.
(i) Fees and Expenses. Payment by the Credit Parties of the
fees and expenses owed by them as set forth in the Fee Letter.
(j) Fees under the Existing Credit Agreement. Receipt on or
before the Closing Date by the Administrative Agent, any Existing
Lender and/or their affiliates of all fees and expenses that are
required to be paid under the Existing Credit Agreement.
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(k) Material Adverse Effect. There shall not have occurred a
material adverse change since December 31, 2003 in the business,
assets, properties, liabilities (actual or contingent), operations,
condition (financial or otherwise) or prospects of the Parent and its
Subsidiaries taken as a whole.
(l) Other. Receipt and satisfactory review by the
Administrative Agent and its counsel of such other documents,
instruments, agreements or information as reasonably and timely
requested by the Administrative Agent or its counsel or any Lender,
including, but not limited to, shareholder agreements and information
regarding management of the Credit Parties and their Subsidiaries,
litigation, tax, accounting, labor, insurance, pension liabilities
(actual or contingent), real estate leases, material contracts, debt
agreements, property ownership, environmental matters and contingent
liabilities of the Credit Parties and their Subsidiaries.
Without limiting the generality of the provisions of Section 10.4, for
purposes of determining compliance with the conditions specified in this Section
5.1, each Lender that has signed this Credit Agreement shall be deemed to have
consented to, approved or accepted or to be satisfied with, each document or
other matter required thereunder to be consented to or approved by or acceptable
or satisfactory to a Lender unless the Administrative Agent shall have received
notice from such Lender prior to the proposed Closing Date specifying its
objection thereto.
5.2 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to the conditions precedent stated elsewhere herein, the
Lenders shall not be obligated to make Loans nor shall the Issuing Lender be
required to issue or extend a Letter of Credit unless:
(a) Notice. The Parent shall have delivered (i) in the case of
any new Revolving Loan, a Notice of Borrowing to the Administrative
Agent, duly executed and completed, by the time specified in Section
2.1, (ii) in the case of any Letter of Credit, to the Issuing Lender an
appropriate request for issuance of a Letter of Credit in accordance
with the provisions of Section 2.2 and (iii) in the case of any
Swingline Loan, to the Swingline Lender a Swingline Loan Request, duly
executed and completed, by the time specified in Section 2.3.
(b) Representations and Warranties. The representations and
warranties made by the Credit Parties in any Credit Document are true
and correct in all material respects at and as if made as of such date
except to the extent they expressly relate to an earlier date;
(c) No Default. No Default or Event of Default shall exist or
be continuing either prior to or after giving effect thereto;
(d) Material Adverse Effect. There shall not have occurred any
Material Adverse Effect; and
(e) Availability. Immediately after giving effect to the
making of a Loan (and the application of the proceeds thereof) or to
the issuance of a Letter of Credit, as the case may be, (i) the sum of
the Revolving Loans outstanding plus L/C Obligations outstanding plus
Swingline Loans outstanding shall not exceed the Revolving Committed
Amount, (ii) the sum of L/C Obligations outstanding shall not exceed
the Letter of Credit Sublimit and (iii) the sum of Swingline Loans
outstanding shall not exceed the Swingline Committed Amount.
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The delivery of each Notice of Borrowing and each request for a Letter of Credit
shall constitute a representation and warranty by the applicable Borrower of the
correctness of the matters specified in subsections (b), (c), (d) and (e) above.
SECTION 6
REPRESENTATIONS AND WARRANTIES
The Credit Parties hereby represent to the Administrative Agent and
each Lender that:
6.1 FINANCIAL CONDITION.
(a) The financial statements delivered to the Lenders pursuant
to Section 5.1(d) and Sections 7.1(a) and (b): (i) have been prepared
in accordance with GAAP (subject, in the case of financial statements
other than year-end financial statements, to normal year-end
adjustments and the absence of footnotes), and (ii) present fairly in
all material respects (on the basis disclosed in the footnotes to such
financial statements, if any) the consolidated financial condition,
results of operations and cash flows of the Credit Parties and their
Subsidiaries as of such date and for such periods.
(b) Since December 31, 2003, there has been no sale, transfer
or other disposition by any Credit Party or any of its Subsidiaries of
any material part of the business or Property of the Credit Parties and
their Subsidiaries taken as a whole, and no purchase or other
Acquisition by any of them of any business or Property (including any
Capital Stock of any other Person) material in relation to the
consolidated financial condition of the Credit Parties taken as a
whole, in each case which is not (i) reflected in the most recent
financial statements delivered to the Lenders pursuant to Section 7.1
or in the notes thereto or (ii) otherwise permitted by the terms of
this Credit Agreement and communicated to the Administrative Agent.
6.2 NO MATERIAL CHANGE.
Since December 31, 2003, there has been no development or event
relating to or affecting a Credit Party or any of their Subsidiaries which would
have or be reasonably expected to have a Material Adverse Effect. From and after
the Closing Date, except as otherwise permitted under this Credit Agreement, no
dividends or other distributions have been declared, paid or made upon the
Capital Stock or other equity interest in a Credit Party or any of its
Subsidiaries nor has any of the Capital Stock or other equity interest in a
Credit Party or any of its Subsidiaries been redeemed, retired, purchased or
otherwise acquired for value.
6.3 ORGANIZATION AND GOOD STANDING.
Each Credit Party (a) is a corporation or limited liability company
duly incorporated or organized, validly existing and in good standing under the
laws of the State (or other jurisdiction) of its incorporation or organization,
(b) is duly qualified and in good standing as a foreign corporation or a limited
liability company and authorized to do business in every jurisdiction where the
failure to be so qualified, in good standing or authorized would have or be
reasonably expected to have a Material Adverse Effect and (c) has the requisite
corporate or limited liability company power and authority to own its properties
and to carry on its business as now conducted and as proposed to be conducted.
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6.4 DUE AUTHORIZATION.
Each Credit Party (a) has the requisite corporate or limited liability
company power and authority to execute, deliver and perform this Credit
Agreement and the other Credit Documents to which it is a party and to incur the
obligations herein and therein provided for and (b) is duly authorized to, and
has been authorized by all necessary corporate or limited liability company
action, to execute, deliver and perform this Credit Agreement and the other
Credit Documents to which it is a party.
6.5 NO CONFLICTS.
Neither the execution and delivery of the Credit Documents, nor the
consummation of the transactions contemplated therein, nor performance of and
compliance with the terms and provisions thereof by such Credit Party will (a)
violate or conflict with any provision of its articles or certificate of
incorporation, operating agreement, articles of organization or bylaws, (b)
violate, contravene or materially conflict with any Requirement of Law or any
other law, regulation (including, without limitation, Regulation U, Regulation T
or Regulation X), order, writ, judgment, injunction, decree or permit applicable
to it, (c) violate, contravene or conflict with contractual provisions of, or
cause an event of default under, any indenture, loan agreement, mortgage, deed
of trust, contract or other agreement or instrument to which it is a party or by
which it may be bound, the violation of which would have or be reasonably
expected to have a Material Adverse Effect, or (d) result in or require the
creation of any Lien (other than those contemplated in or created in connection
with the Credit Documents) upon or with respect to its properties.
6.6 CONSENTS.
Except for consents, approvals, authorizations, orders, filings,
registrations and qualifications which have been obtained, no consent, approval,
authorization or order of, or filing, registration or qualification with, any
court or Governmental Authority or third party in respect of any Credit Party is
required in connection with the execution, delivery or performance of this
Credit Agreement or any of the other Credit Documents by such Credit Party.
6.7 ENFORCEABLE OBLIGATIONS.
This Credit Agreement and the other Credit Documents have been duly
executed and delivered and constitute legal, valid and binding obligations of
each Credit Party enforceable against such Credit Party in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization or moratorium laws or similar laws relating to or affecting
creditors' rights generally or by general equitable principles.
6.8 NO DEFAULT.
No Credit Party, nor any of its Subsidiaries, is in default in any
respect under any contract, lease, loan agreement, indenture, mortgage, security
agreement or other agreement or obligation to which it is a party or by which
any of its properties is bound which default would have or be reasonably
expected to have a Material Adverse Effect. No Default or Event of Default has
occurred or exists.
6.9 OWNERSHIP.
Each Credit Party, and each of its Subsidiaries, is the owner of, and
has good and marketable title to, or has a valid license or lease to use all of
its respective assets (including, without limitation, its Intellectual Property)
and none of such assets is subject to any Lien other than Permitted Liens.
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6.10 INDEBTEDNESS.
The Credit Parties and their Subsidiaries have no Indebtedness except
(a) as disclosed in the financial statements referenced in Section 6.1 and (b)
as otherwise permitted by this Credit Agreement.
6.11 LITIGATION.
There are no actions, suits or legal, equitable, arbitration or
administrative proceedings, pending or, to the knowledge of any Credit Party,
threatened against, any Credit Party or any of its Subsidiaries which would have
or be reasonably expected to have a Material Adverse Effect.
6.12 TAXES.
Each Credit Party, and each of its Subsidiaries, has filed, or caused
to be filed, all tax returns (federal, state, local and foreign) required to be
filed and paid or caused to be paid (a) all amounts of taxes shown thereon to be
due and payable (including interest and penalties) and (b) all other taxes,
fees, assessments and other governmental charges (including mortgage recording
taxes, documentary stamp taxes and intangibles taxes) that are due and payable,
except for such taxes (i) which are not yet delinquent or (ii) that are being
contested in good faith and by proper proceedings, and against which adequate
reserves are being maintained in accordance with GAAP. There is no proposed tax
assessment against Parent or any Subsidiary that would, if made, have a Material
Adverse Effect.
6.13 COMPLIANCE WITH LAW.
Each Credit Party, and each of its Subsidiaries, is in compliance with
all Requirements of Law and all other laws, rules, regulations, orders and
decrees (including without limitation Environmental Laws) applicable to it, or
to its properties, unless such failure to comply would not have or be reasonably
expected to have a Material Adverse Effect.
6.14 ERISA.
Except as would not have or be reasonably expected to have a Material
Adverse Effect:
(a) During the five-year period prior to the date on which
this representation is made or deemed made: (i) no Termination Event
has occurred and, to the knowledge of the Credit Parties, no event or
condition has occurred or exists as a result of which any Termination
Event could reasonably be expected to occur, with respect to any Plan;
(ii) no "accumulated funding deficiency," as such term is defined in
Section 302 of ERISA and Section 412 of the Code, whether or not
waived, has occurred with respect to any Plan; (iii) each Plan has been
maintained, operated, and funded in compliance with its own terms and
in material compliance with the provisions of ERISA, the Code, and any
other applicable federal or state laws; and (iv) no Lien in favor or
the PBGC or a Plan has arisen or is reasonably expected to arise on
account of any Plan.
(b) The actuarial present value of all "benefit liabilities"
(within the meaning of Section 4001(a)(16) of ERISA) under each Single
Employer Plan, whether or not vested, did not, as of the last annual
valuation date prior to the date on which this representation is made
or deemed made, exceed the fair market current value as of such date of
the assets of such Plan allocable to such benefit liabilities.
55
(c) Neither any Credit Party, nor any of its Subsidiaries, nor
any ERISA Affiliate has incurred, or, to the knowledge of the Credit
Parties, is reasonably expected to incur, any withdrawal liability
under ERISA to any Multiemployer Plan or Multiple Employer Plan.
Neither any Credit Party, nor any of its Subsidiaries, nor any ERISA
Affiliate has received any notification that any Multiemployer Plan is
in reorganization (within the meaning of Section 4241 of ERISA), is
insolvent (within the meaning of Section 4245 of ERISA), or has been
terminated (within the meaning of Title IV of ERISA), and, to the
knowledge of the Credit Parties, no Multiemployer Plan is reasonably
expected to be in reorganization, insolvent, or terminated.
(d) No nonexempt prohibited transaction (within the meaning of
Section 406 of ERISA or Section 4975 of the Code) or breach of
fiduciary responsibility has occurred with respect to a Plan which has
subjected or is reasonably expected to subject any Credit Party or any
of its Subsidiaries or any ERISA Affiliate to any liability under
Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of the
Code, or under any agreement or other instrument pursuant to which any
Credit Party or any of its Subsidiaries or any ERISA Affiliate has
agreed or is required to indemnify any person against any such
liability.
(e) The present value of the liability of the Credit Parties
and their Subsidiaries and each ERISA Affiliate for post-retirement
welfare benefits to be provided to their current and former employees
under Plans which are welfare benefit plans (as defined in Section 3(1)
of ERISA), net of all assets under all such Plans allocable to such
benefits, are reflected on the Financial Statements in accordance with
FASB 106.
(f) Each Plan which is a welfare plan (as defined in Section
3(1) of ERISA) to which Sections 601-609 of ERISA and Section 4980B of
the Code apply has been administered in material compliance with such
sections.
6.15 SUBSIDIARIES.
Set forth on Schedule 6.15 is a complete and accurate list of all
Subsidiaries of each Credit Party. Information on Schedule 6.15 includes the
jurisdiction of incorporation or organization, the number of shares of each
class of Capital Stock or other equity interests outstanding, the number and
percentage of outstanding shares of each class owned (directly or indirectly) by
such Credit Party; and the number and effect, if exercised, of all outstanding
options, warrants, rights of conversion or purchase and all other similar rights
with respect thereto. The outstanding Capital Stock and other equity interests
of all such Subsidiaries is validly issued, fully paid and, with respect to any
Subsidiary that is a corporation, non-assessable and is owned by each such
Credit Party, directly or indirectly, free and clear of all Liens (other than
those arising under or contemplated in connection with the Credit Documents).
Other than as set forth in Schedule 6.15, neither any Credit Party nor any
Subsidiary thereof has outstanding any securities convertible into or
exchangeable for its Capital Stock nor does any such Person have outstanding any
rights to subscribe for or to purchase or any options for the purchase of, or
any agreements providing for the issuance (contingent or otherwise) of, or any
calls, commitments or claims of any character relating to its Capital Stock.
Schedule 6.15 may be updated from time to time by the Parent by giving written
notice thereof to the Administrative Agent.
6.16 USE OF PROCEEDS.
The proceeds of the Loans hereunder will be used solely for the
purposes specified in Section 7.10. No proceeds of the Loans hereunder have been
or will be used for the Acquisition of another Person unless the board of
56
directors (or other comparable governing body) or stockholders, as appropriate,
of such Person has approved such Acquisition.
6.17 GOVERNMENT REGULATION.
(a) No part of the Letters of Credit or proceeds of the Loans
will be used, directly or indirectly, in any manner that would
constitute a violation of Regulation U. No Indebtedness being reduced
or retired out of the proceeds of the Loans was or will be incurred for
the purpose of purchasing or carrying any margin stock within the
meaning of Regulation U or any "margin security" within the meaning of
Regulation T. "Margin stock" within the meaning of Regulation U does
not constitute more than 25% of the value of the consolidated assets of
the Credit Parties and their Subsidiaries. None of the transactions
contemplated by the Credit Documents (including, without limitation,
the direct or indirect use of the proceeds of the Loans), the Note
Purchase Agreements or the 2003 Note Purchase Agreement will violate or
result in a violation of (i) the Securities Act of 1933, as amended,
(ii) the Securities Exchange Act of 1934, as amended, (iii) regulations
issued pursuant to the Securities Act of 1933 or the Securities
Exchange Act of 1934, or (iv) Regulation T, U or X.
(b) No Credit Party, nor any of its Subsidiaries, is subject
to regulation under the Public Utility Holding Company Act of 1935, the
Federal Power Act or the Investment Company Act of 1940, each as
amended. In addition, No Credit Party, nor any of its Subsidiaries, is
(i) an "investment company" registered or required to be registered
under the Investment Company Act of 1940, as amended, and is not
controlled by an "investment company", or (ii) a "holding company", or
a "subsidiary company" of a "holding company", or an "affiliate" of a
"holding company" or of a "subsidiary" of a "holding company", within
the meaning of the Public Utility Holding Company Act of 1935, as
amended.
(c) No director, executive officer or principal shareholder of
any Credit Party or any of its Subsidiaries has control of a company
(i.e. such Credit Party or Subsidiary) and is a director, executive
officer or principal shareholder of any Lender. For the purposes hereof
the terms "director", "executive officer" and "principal shareholder"
(when used with reference to any Lender), and the phrase "control of a
company", have the respective meanings assigned thereto in Regulation
O.
(d) Each Credit Party and each Subsidiary of a Credit Party is
current with all material reports and documents, if any, required to be
filed with any state or federal securities commission or similar agency
and is in full compliance in all material respects with all applicable
rules and regulations of such commissions.
6.18 ENVIRONMENTAL MATTERS.
(a) Each of the Credit Parties is in compliance with all
applicable Environmental Laws.
(b) Each of the Real Properties and all operations at such
Real Properties are in compliance with all applicable Environmental
Laws, and there is no violation of any Environmental Law with respect
to such Real Properties or the businesses operated by the Credit
Parties or any of their Subsidiaries (the "Businesses"), and there are
no conditions relating to the Businesses or such Real Properties that
would reasonably be expected to give rise to liability under any
applicable Environmental Laws.
57
(c) No Credit Party nor any of its Subsidiaries has received
any written or oral notice of, or inquiry from any Governmental
Authority regarding, any violation, alleged violation, non-compliance,
liability or potential liability regarding Hazardous Materials or
compliance with Environmental Laws with regard to any of the Real
Properties or the Businesses, nor, to the knowledge of the Credit
Parties or their Subsidiaries, is any such notice being threatened.
(d) Hazardous Materials have not been transported or disposed
of from the Real Properties, or generated, treated, stored or disposed
of at, on or under any of such Real Properties or any other location,
in each case by, or on behalf or with the permission of, a Credit Party
or any of its Subsidiaries in a manner that could reasonably be
expected to give rise to liability under any applicable Environmental
Laws.
(e) No judicial proceeding or governmental or administrative
action is pending or, to the knowledge of a Credit Party or any of its
Subsidiaries, threatened, under any Environmental Law to which a Credit
Party or any of its Subsidiaries is or will be named as a party, nor
are there any consent decrees or other decrees, consent orders,
administrative orders or other orders, or other administrative or
judicial requirements outstanding under any Environmental Law with
respect to a Credit Party or any of its Subsidiaries, the Real
Properties or the Businesses.
(f) There has been no release (including, without limitation,
disposal) or threat of release of Hazardous Materials at or from the
Real Properties, or arising from or related to the operations of a
Credit Party or any of its Subsidiaries in connection with such Real
Properties or otherwise in connection with the Businesses where such
release constituted a violation of, would give rise to liability under,
or would be required to be reported to a Governmental Authority
pursuant to, any applicable Environmental Laws.
(g) None of the Real Properties that a Credit Party owns or
leases contains, or has previously contained, any Hazardous Materials
at, on or under such Real Properties in amounts or concentrations that,
if released, constitute or constituted a violation of, or could give
rise to liability under, Environmental Laws.
(h) No Credit Party, nor any of its Subsidiaries, has assumed
any liability of any Person (other than another Credit Party, or one of
its Subsidiaries) under any Environmental Law.
(i) The Credit Parties and their Subsidiaries have adopted
procedures that are designed to (i) ensure that each Credit Party and
its Subsidiaries, any of their operations and each of the Real
Properties remains in compliance with applicable Environmental Laws and
(ii) minimize any liabilities or potential liabilities that each Credit
Party and its Subsidiaries, any of their operations and each of the
Real Properties may have under applicable Environmental Laws.
6.19 INTELLECTUAL PROPERTY.
Each Credit Party owns, or has the legal right to use, all trademarks,
tradenames, copyrights, technology, know-how and processes (the "Intellectual
Property") necessary for each of them to conduct its business as currently
conducted except for those the failure to own or have such legal right to use
could not have a Material Adverse Effect.
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6.20 SOLVENCY.
The Credit Parties, on a consolidated basis, are, and after
consummation of the transactions contemplated by this Credit Agreement, will be
Solvent.
6.21 INVESTMENTS.
All Investments of each Credit Party and its Subsidiaries are Permitted
Investments.
6.22 LEGAL NAMES.
The exact legal name and state of organization of each Credit Party is
as set forth on the signature pages hereto or on the signature pages of any
Joinder Agreement delivered in connection herewith.
6.23 DISCLOSURE.
Neither this Credit Agreement nor any financial statements delivered to
an Agent or the Lenders nor any other document, certificate or statement
furnished to an Agent or the Lenders by or on behalf of any Credit Party or any
of its Subsidiaries in connection with the transactions contemplated hereby
contains any untrue statement of a material fact or omits to state a material
fact necessary in order to make the statements contained therein or herein not
misleading.
6.24 LICENSES, ETC.
The Credit Parties have obtained and hold in full force and effect, all
franchises, licenses, permits, certificates, authorizations, qualifications,
accreditations, easements, rights of way and other rights, consents and
approvals which are necessary for the operation of their respective businesses
as presently conducted, except where the failure to obtain would not have or be
reasonably expected to have a Material Adverse Effect.
6.25 NO BURDENSOME RESTRICTIONS.
No Credit Party, nor any of its Subsidiaries, is a party to any
agreement or instrument or subject to any other obligation or any charter or
corporate restriction or any provision of any applicable law, rule or regulation
which individually or in the aggregate, would have or be reasonably expected to
have a Material Adverse Effect.
6.26 COLLATERAL DOCUMENTS.
The Collateral Documents create valid security interests in, and Liens
on, the Collateral purported to be covered thereby, which security interests and
Liens are currently perfected security interests and Liens, prior to all other
Liens other than Permitted Liens.
6.27 LABOR CONTRACTS AND DISPUTES.
(a) There is no collective bargaining agreement or other labor contract
covering employees of any Credit Party; (b) no union or other labor organization
is seeking to organize, or be recognized as, a collective bargaining unit of
employees of any Credit Party; and (c) there is no pending, or to any Credit
Party's knowledge, threatened, strike, work stoppage, material unfair labor
practice claim or other material labor dispute against or affecting any Credit
Party or its employees.
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6.28 BROKER'S FEES.
No Credit Party will, nor will it permit any of its Subsidiaries to,
pay or agree to pay, or reimburse any other Person with respect to, any
finder's, broker's, investment banking or other similar fee in connection with
any of the transactions contemplated under the Credit Documents.
6.29 INDEBTEDNESS UNDER NOTE PURCHASE AGREEMENTS.
The Credit Party Obligations and all other Indebtedness under the
Credit Agreement is pari passu with the Indebtedness arising under the Note
Purchase Agreements and the Indebtedness arising under the 2003 Note Purchase
Agreement.
SECTION 7
AFFIRMATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and L/C Obligations, together
with interest and fees and other obligations then due and payable hereunder,
have been paid in full and the Commitments and Letters of Credit hereunder shall
have terminated:
7.1 INFORMATION COVENANTS.
The Credit Parties will furnish, or cause to be furnished, to the
Administrative Agent and each of the Lenders:
(a) Annual Financial Statements. As soon as available, but in
any event no later than the earlier of (i) the 90th day after the close
of each fiscal year of the Parent and (ii) the day the Parent's annual
report on Form 10-K is required to be filed with the SEC, a
consolidated balance sheet of the Credit Parties and their
Subsidiaries, as of the end of such fiscal year, together with related
consolidated statements of earnings, of shareholder's equity and of
cash flows for such fiscal year, setting forth in comparative form
consolidated figures for the preceding fiscal year, all such
consolidated financial information described above to be in reasonable
form and detail and audited by independent certified public accountants
of recognized national standing reasonably acceptable to the
Administrative Agent and whose opinion shall be to the effect that such
financial statements have been prepared in accordance with GAAP (except
for changes with which such accountants concur) and shall not be
limited as to the scope of the audit or qualified in any manner;
provided, that delivery within the time period specified above of the
Parent's Annual Report on Form 10-K for such fiscal year (together with
the Parent's annual report to shareholders, if any, prepared pursuant
to Rule 14a-3 under the Securities Exchange Act of 1934, as amended)
prepared in accordance with the requirements therefor and filed with
the Securities Exchange Commission, together with the accountant's
certificate described above, shall be deemed to satisfy the
requirements of this Section 7.1(a).
(b) Quarterly Financial Statements. As soon as available, but
in any event no later than the earlier of (i) the 45th day after the
close of each fiscal quarter of the Parent (other than the fourth
fiscal quarter) and (ii) the day that the Parent's quarterly report on
Form 10-Q is required to be filed with the SEC, a consolidated balance
sheet of the Credit Parties and their Subsidiaries as of the end of
60
such fiscal quarter, together with related consolidated statements of
earnings, of shareholder's equity and of cash flows for such fiscal
quarter, setting forth in comparative form consolidated and
consolidating figures for the corresponding period of the preceding
fiscal year, all such financial information described above to be in
reasonable form and detail and reasonably acceptable to the
Administrative Agent, and accompanied by a certificate of the chief
financial officer of the Parent to the effect that such quarterly
financial statements fairly present in all material respects the
financial condition of the Credit Parties and their Subsidiaries and
have been prepared in accordance with GAAP (subject to changes
resulting from audit and normal year-end audit adjustments and the
absence of footnotes); provided, that delivery within the time period
specified above of the copies of the Parent's Quarterly Report on Form
10-Q prepared in compliance with the requirements therefor and filed
with the Securities and Exchange Commission shall be deemed to satisfy
the requirements of this Section 7.1(b).
(c) Officer's Certificate. At the time of delivery of the
financial statements provided for in Sections 7.1(a) and 7.1(b) above,
a certificate of the chief financial officer of the Parent
substantially in the form of Exhibit F, (i) demonstrating compliance
with the financial covenants contained in Section 7.2 by calculation
thereof as of the end of each such period, (ii) demonstrating
compliance with any other terms of this Credit Agreement as reasonably
requested by the Administrative Agent and (iii) stating that no Default
or Event of Default exists, or if any Default or Event of Default does
exist, specifying the nature and extent thereof and what action the
Parent proposes to take with respect thereto.
(d) Annual Business Plan and Budgets. At least 30 days prior
to the end of each fiscal year of the Parent (or prior to the Closing
Date in the case of the fiscal year ending December 29, 2004),
beginning with the fiscal year ending December 29, 2004, a projected
profit and loss statement of the Credit Parties and their Subsidiaries
on a consolidated basis for the next fiscal year.
(e) Accountant's Certificate. Within the period for delivery
of the annual financial statements provided in Section 7.1(a), a
certificate of the accountants conducting the annual audit stating that
they have reviewed this Credit Agreement and stating further whether,
in the course of their audit, they have become aware of any Default or
Event of Default and, if any such Default or Event of Default exists,
specifying the nature and extent thereof.
(f) Auditor's Reports. Promptly upon receipt thereof, a copy
of any other report or "management letter" submitted by independent
accountants to the Parent in connection with any annual, interim or
special audit of the books of such Person.
(g) Reports. Promptly upon transmission or receipt thereof,
(a) copies of any filings and registrations with, and reports to or
from, the Securities and Exchange Commission, or any successor agency,
and copies of all financial statements, proxy statements, notices and
reports as the Credit Parties and their Subsidiaries shall send to its
shareholders generally in their capacity as shareholders and (b) upon
the written request of the Administrative Agent, all reports and
written information to and from the United States Environmental
Protection Agency, or any state or local agency responsible for
environmental matters, the United States Occupational Health and Safety
Administration, or any state or local agency responsible for health and
safety matters, or any successor agencies or authorities concerning
material environmental, health or safety matters.
(h) Notices. Upon a Responsible Officer of a Credit Party
obtaining knowledge thereof, the Parent will give written notice to the
Administrative Agent immediately of (i) the occurrence of an event or
condition consisting of a Default or Event of Default, specifying the
61
nature and existence thereof and what action the Credit Parties propose
to take with respect thereto, and (ii) the occurrence of any of the
following with respect to the Credit Parties or any of their
Subsidiaries: (A) the pendency or commencement of any litigation,
arbitral or governmental proceeding against a Credit Party or any of
its Subsidiaries which if adversely determined would have or be
reasonably expected to have a Material Adverse Effect, (B) the
institution of any proceedings against a Credit Party or any of its
Subsidiaries with respect to, or the receipt of written notice by such
Person of potential liability or responsibility for violation, or
alleged violation of any federal, state or local law, rule or
regulation (including but not limited to, Environmental Laws) the
violation of which would have or be reasonably expected to have a
Material Adverse Effect and (C) any loss of or damage to any Property
of a Credit Party or its Subsidiaries or the commencement of any
proceeding for the condemnation or other taking of any Property of a
Credit Party or its Subsidiaries, if such loss, damage or proceeding
would have or be reasonably expected to have a Material Adverse Effect.
(i) ERISA. Upon any of the Credit Parties or any of their
Subsidiaries or any ERISA Affiliate obtaining knowledge thereof, the
Parent will give written notice to the Administrative Agent promptly
(and in any event within five Business Days) of: (i) any event or
condition, including, but not limited to, any Reportable Event, that
constitutes, or is reasonably expected to result in, a Termination
Event; (ii) with respect to any Multiemployer Plan, the receipt of
notice as prescribed in ERISA or otherwise of any withdrawal liability
assessed against the Credit Parties or any of their Subsidiaries or any
of their ERISA Affiliates, or of a determination that any Multiemployer
Plan is in reorganization or insolvent (both within the meaning of
Title IV of ERISA); (iii) the failure to make full payment on or before
the due date (including extensions) thereof of all amounts which a
Credit Party or any of its Subsidiaries or any ERISA Affiliates is
required to contribute to each Plan pursuant to such Plan's terms and
as required to meet the minimum funding standard set forth in Section
302 of ERISA and Section 412 of the Code with respect thereto; or (iv)
any change in the funding status of any Plan that would have or be
reasonably expected to have a Material Adverse Effect; together, with a
description of any such event or condition or a copy of any such notice
and a statement by the principal financial officer of the Parent
briefly setting forth the details regarding such event, condition, or
notice, and the action, if any, which has been or is being taken or is
proposed to be taken by the Credit Parties or any of their Subsidiaries
with respect thereto. Promptly upon request, the Credit Parties or any
of their Subsidiaries shall furnish the Administrative Agent and each
of the Lenders with such additional information concerning any Plan as
may be reasonably requested by the Administrative Agent, including, but
not limited to, copies of each annual report/return (Form 5500 series),
as well as all schedules and attachments thereto required to be filed
with the Department of Labor and/or the Internal Revenue Service
pursuant to ERISA and the Code, respectively, for each "plan year"
(within the meaning of Section 3(39) of ERISA).
(j) Environmental.
(i) Subsequent to a notice from any Governmental
Authority where the subject matter of such notice would have
or be reasonably expected to have a Material Adverse Effect,
or during the existence of an Event of Default, upon the
written request of Administrative Agent, the Credit Parties
will furnish or cause to be furnished to the Administrative
Agent, at the Credit Parties' expense, a report of an
environmental assessment of reasonable scope, form and depth,
including, where appropriate, invasive soil or groundwater
sampling, by a consultant reasonably acceptable to the
Administrative Agent addressing the subject of such notice or,
if during the existence of an Event of Default, regarding any
release or threat of release of Hazardous Materials on any
Real Property and the compliance by the Credit Parties with
Environmental Laws. If the Credit Parties fail to deliver such
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an environmental report within sixty (60) days after receipt
of such written request, then the Administrative Agent may
arrange for same, and the Credit Parties hereby grant to the
Administrative Agent and its representatives access to the
Real Properties and a license of a scope reasonably necessary
to undertake such an assessment (including, where appropriate,
invasive soil or groundwater sampling). The reasonable cost of
any assessment arranged for by the Administrative Agent
pursuant to this provision will be payable by the Credit
Parties on demand and added to the obligations secured by the
Collateral Documents.
(ii) Each Credit Party will conduct and complete all
investigations, studies, sampling, and testing and all
remedial, removal, and other actions required under the
Environmental Laws to address all Hazardous Materials on,
from, or affecting any Real Property to the extent necessary
to be in compliance with all Environmental Laws and all other
applicable federal, state and local laws, regulations, rules
and policies and with the orders and directives of all
Governmental Authorities exercising jurisdiction over such
real property to the extent any failure would have or be
reasonably expected to have a Material Adverse Effect.
(k) Amendments to Note Purchase Agreements and the 2003 Note
Purchase Agreement. Promptly upon receipt thereof, a copy of (i) any
amendments, modifications or supplements to any agreement or instrument
evidencing any obligation of the Parent under the Note Purchase
Agreements or any agreement or instrument related thereto or (ii) any
amendments, modifications or supplements to any agreement or instrument
evidencing any obligation of the Parent under the 2003 Note Purchase
Agreement or any agreement or instrument related thereto.
(l) Notices provided to Noteholders and 2003 Noteholders.
(i) At the time of delivery to the Noteholders
pursuant to the Note Purchase Agreements, copies of any notice
provided to the Noteholders (including without limitation any
notice required pursuant to Section 8.3 of the Note Purchase
Agreements) pursuant to the Note Purchase Agreements, to the
extent any such notice has not already been delivered to the
Lenders pursuant to the terms hereof.
(ii) At the time of delivery to the 2003 Noteholders
pursuant to the 2003 Note Purchase Agreement, copies of any
notice provided to the 2003 Noteholders (including without
limitation any notice required pursuant to Section 8.3 of the
2003 Note Purchase Agreement) pursuant to the 2003 Note
Purchase Agreement, to the extent any such notice has not
already been delivered to the Lenders pursuant to the terms
hereof.
(m) Other Information. With reasonable promptness upon any
such request, such other information regarding the business, properties
or financial condition of the Credit Parties and their Subsidiaries as
the Administrative Agent or any Lender may reasonably request.
The Borrowers hereby acknowledge that (a) the Administrative Agent will
make available to the Lenders and the Issuing Lender materials and/or
information provided by or on behalf of the Borrowers hereunder
(collectively, "Borrower Materials") by posting the Borrower Materials
on IntraLinks or another similar electronic system (the "Platform") and
(b) certain of the Lenders may be "public-side" Lenders (i.e., Lenders
that do not wish to receive material non-public information with
respect to the Borrowers or their securities) (each, a "Public
Lender"). The Borrowers hereby agree that (w) all Borrower Materials
that are to be made available to Public Lenders shall be clearly and
conspicuously marked "PUBLIC" which, at a minimum, shall mean that the
word "PUBLIC" shall appear prominently on the first page thereof; (x)
by marking Borrower Materials "PUBLIC," the Borrowers shall be deemed
63
to have authorized the Administrative Agent, the Issuing Lender and the
Lenders to treat such Borrower Materials as either publicly available
information or not material information (although it may be sensitive
and proprietary) with respect to the Borrowers or their securities for
purposes of United States Federal and state securities laws; (y) all
Borrower Materials marked "PUBLIC" are permitted to be made available
through a portion of the Platform designated "Public Investor;" and (z)
the Administrative Agent and the Arranger shall be entitled to treat
any Borrower Materials that are not marked "PUBLIC" as being suitable
only for posting on a portion of the Platform not designated "Public
Investor."
7.2 FINANCIAL COVENANTS.
(a) Leverage Ratio. The Leverage Ratio, as of the last day of
each fiscal quarter of the Parent, shall be less than or equal to 2.50
to 1.00.
(b) Fixed Charge Coverage Ratio. The Fixed Charge Coverage
Ratio, as of the last day of each fiscal quarter of the Parent, shall
be greater than or equal to 2.25 to 1.00; provided, however, that if
scheduled principal payments are due and payable with respect to both
the Senior Notes and the 2003 Senior Notes during the four fiscal
quarter period of the Parent included in any calculation of the Fixed
Charge Coverage Ratio, the Fixed Charge Coverage Ratio shall be greater
than or equal to 2.00 to 1.00 as of the last day of the applicable
fiscal quarter of the Parent.
(c) Minimum Consolidated Net Worth. The Consolidated Net Worth
shall at all times be equal to or greater than $300,000,000 increased
on a cumulative basis as of the end of each fiscal quarter of the
Credit Parties, commencing with the fiscal quarter ending December 29,
2004 by an amount equal to 50% of the Net Income (with no deduction for
net losses) for the fiscal quarter then ended plus an amount equal to
100% of the proceeds from any Equity Issuance.
7.3 PRESERVATION OF EXISTENCE AND FRANCHISES.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, do all things necessary to preserve and keep in full force and
effect its existence, rights, franchises and authority except as permitted by
Section 8.4.
7.4 BOOKS AND RECORDS.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, keep complete and accurate books and records of its
transactions in accordance with GAAP (including the establishment and
maintenance of appropriate reserves).
7.5 COMPLIANCE WITH LAW.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, comply with all laws, rules, regulations and orders, and all
applicable restrictions imposed by all Governmental Authorities, applicable to
it and its property (including, without limitation, Environmental Laws), unless
such noncompliance would not have or be reasonably expected to have a Material
Adverse Effect.
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7.6 PAYMENT OF TAXES, CLAIMS AND OTHER INDEBTEDNESS.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, pay, settle or discharge (a) all taxes, assessments and
governmental charges or levies imposed upon it, or upon its income or profits,
or upon any of its properties, before they shall become delinquent, (b) all
lawful claims (including claims for labor, materials and supplies) which, if
unpaid, might give rise to a Lien upon any of its properties and (c) except as
prohibited hereunder, all of its other Indebtedness as it shall become due;
provided, however, that a Credit Party or any of its Subsidiaries shall not be
required to pay any such tax, assessment, charge, levy, claim or Indebtedness
which is being contested in good faith by appropriate proceedings and as to
which adequate reserves therefor have been established in accordance with GAAP,
unless the failure to make any such payment (i) would give rise to an immediate
right to foreclose or collect on a Lien securing such amounts or (ii) would have
or be reasonably expected to have a Material Adverse Effect.
7.7 INSURANCE.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, at all times maintain in full force and effect insurance
(including worker's compensation insurance, liability insurance, casualty
insurance and business interruption insurance) from insurance companies
acceptable to the Administrative Agent, in such amounts, covering such risks and
liabilities and with such deductibles or self-insurance retentions as are in
accordance with normal industry practice.
7.8 MAINTENANCE OF PROPERTY.
Each of the Credit Parties will, and will cause each of its
Subsidiaries to, maintain and preserve its properties and equipment in good
repair, working order and condition, normal wear and tear excepted (subject to
casualty events), and will make, or cause to be made, in such properties and
equipment from time to time all repairs, renewals, replacements, extensions,
additions, betterments and improvements thereto as may be needed or proper, to
the extent and in the manner customary for companies in similar businesses.
7.9 COLLATERAL.
(a) If, subsequent to the Closing Date, a Credit Party shall
acquire any Capital Stock required to be delivered to the Collateral
Agent as Collateral hereunder or under any of the Collateral Documents,
the Parent shall immediately notify the Collateral Agent of same.
(b) Each Credit Party shall (within 30 days of such request)
take such action, as reasonably requested by the Collateral Agent and
at its own expense, to ensure that the Secured Parties have a perfected
Lien in all Collateral of the Credit Parties as set forth in the Pledge
Agreement (whether now owned or hereafter acquired), subject only to
Permitted Liens. Such actions to be required by the Collateral Agent
may include, but are not limited to, delivery of Capital Stock, stock
powers or other appropriate assignments in blank, UCC financing
statements and legal opinions with respect thereto which shall be
satisfactory to the Collateral Agent.
7.10 USE OF PROCEEDS.
The Credit Parties will use the proceeds of the Extensions of Credit
solely (a) to refinance the existing Indebtedness of the Credit Parties, (b) to
make Capital Expenditures, (c) to provide working capital for the Parent and its
Domestic Subsidiaries and (d) for general corporate purposes of the Credit
Parties (including, without limitation, the repurchase of Capital Stock of the
Parent pursuant to the Share Repurchase Program to the extent permitted
65
hereunder) and the payment of regularly scheduled payments with respect to the
Senior Notes and the 2003 Senior Notes.
7.11 PERFORMANCE OF OBLIGATIONS.
Each of the Credit Parties will, and will cause its Subsidiaries to,
perform in all respects all of its obligations under the terms of all
agreements, indentures, mortgages, security agreements or other debt instruments
to which it is a party or by which it is bound unless the failure to do so would
not have or be reasonably expected to have a Material Adverse Effect.
7.12 ADDITIONAL CREDIT PARTIES.
At the time any Person becomes a Subsidiary of a Credit Party,
the Parent shall so notify the Administrative Agent and promptly
thereafter (but in any event within 30 days after the date thereof)
shall cause such Person to (a) if it is a Domestic Subsidiary, execute
a Joinder Agreement in substantially the same form as Exhibit G, (b)
cause all of the Capital Stock of such Person (if it is a Domestic
Subsidiary) or 65% of the Capital Stock of such Person (if it is a
First Tier Foreign Subsidiary) to be delivered and pledged to the
Collateral Agent (together with undated stock powers signed in blank),
(c) if such Person is a Domestic Subsidiary and has any Subsidiaries,
deliver and pledge all of the Capital Stock of such Domestic
Subsidiaries owned by it and 65% of the stock of the First Tier Foreign
Subsidiaries owned by it (together with undated stock powers signed in
blank) to the Collateral Agent, (d) deliver such other documentation as
the Collateral Agent may reasonably request in connection with the
foregoing, including, without limitation, appropriate UCC-1 financing
statements, certified resolutions and other organizational and
authorizing documents of such Person and favorable opinions of counsel
to such Person (which shall cover, among other things, the legality,
validity, binding effect and enforceability of the documentation
referred to above), all in form, content and scope reasonably
satisfactory to the Collateral Agent and (d) provide (i) to the
Administrative Agent a new Schedule 6.15 which shall reflect the
information regarding such new Subsidiary required by Section 6.15 and
(ii) to the Collateral Agent, if applicable, a new Schedule 2(a) to the
appropriate Pledge Agreement which shall reflect the pledge of the
Capital Stock of such new Subsidiary.
7.13 AUDITS/INSPECTIONS.
Upon reasonable notice and during normal business hours, each Credit
Party will, and will permit each of its Subsidiaries to, permit representatives
appointed by the Administrative Agent, including, without limitation,
independent accountants, agents, attorneys, and appraisers to visit and inspect
its property, including its books and records, its accounts receivable and
inventory, its facilities and its other business assets, and to make photocopies
or photographs thereof and to write down and record any information such
representative obtains and shall permit the Administrative Agent or its
representatives to investigate and verify the accuracy of information provided
to the Lenders and to discuss all such matters with the officers, employees and
representatives of such Person.
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SECTION 8
NEGATIVE COVENANTS
Each Credit Party hereby covenants and agrees that so long as this
Credit Agreement is in effect and until the Loans and L/C Obligations, together
with interest, fees and other obligations then due and payable hereunder have
been paid in full and the Commitments and Letters of Credit hereunder shall have
terminated:
8.1 INDEBTEDNESS.
No Credit Party will, nor will it permit any of its Subsidiaries to,
contract, create, incur, assume or permit to exist any Indebtedness, except:
(a) Indebtedness arising under this Credit Agreement and the
other Credit Documents;
(b) Indebtedness existing as of the Closing Date and set forth
on Schedule 8.1(b) (and renewals, refinancings, replacements or
extensions thereof on terms and conditions no more favorable, in the
aggregate, to such creditor than such existing Indebtedness and in a
principal amount not in excess of that outstanding as of the date of
such renewal, refinancing, replacement or extension);
(c) purchase money Indebtedness (including obligations in
respect of Capital Leases and Synthetic Leases) to finance the purchase
of fixed assets (including equipment); provided that (i) the total of
all such Indebtedness for all such Persons taken together shall not
exceed an aggregate principal amount of $12,000,000 at any one time
outstanding (in addition to any such Indebtedness referred to in
subsection (b) above); (ii) such Indebtedness when incurred shall not
exceed the purchase price of the asset(s) financed; and (iii) no such
Indebtedness shall be refinanced for a principal amount in excess of
the principal balance outstanding thereon at the time of such
refinancing;
(d) Indebtedness arising from Hedging Agreements entered into
in the ordinary course of business and not for speculative purposes;
(e) Indebtedness in respect of current accounts payable and
accrued expenses incurred in the ordinary course of business and to the
extent not current, accounts payable and accrued expenses that are
subject to bona fide dispute;
(f) (i) Indebtedness of the Borrowers and the Guarantors under
the Note Purchase Agreements, the Senior Notes and the other financing
documents related thereto in an aggregate principal amount not to
exceed $75,000,000 and (ii) Indebtedness of the Borrowers and the
Guarantors under the 2003 Note Purchase Agreement, the 2003 Senior
Notes and the other financing documents related thereto in an aggregate
principal amount not to exceed $100,000,000 and (iii) any renewals,
refinancings, extensions, replacements or substitutions of any such
Indebtedness identified in subclauses (i) and (ii) above (collectively,
the "Notes Refinancing Indebtedness") so long as (A) the aggregate
principal amount of Indebtedness owing by the Borrowers and the
Guarantors pursuant to such Notes Refinancing Indebtedness and the
Indebtedness permitted by subclauses (i) and (ii) above shall not
exceed $175,000,000 in the aggregate at any one time and (B) the terms
and conditions of such Notes Refinancing Indebtedness are no less
favorable to the Borrowers and the Guarantors than the existing
67
Indebtedness evidenced by (x) the Note Purchase Agreements, the Senior
Notes and the other financing documents related thereto and (y) the
2003 Note Purchase Agreement, the 2003 Senior Notes and the other
financing document related thereto;
(g) Indebtedness owing from one Credit Party to another Credit
Party;
(h) Guaranty Obligations of the Parent arising from the
Parent's guarantee of loans taken out by participants in the Operating
Partner's Program the proceeds of which are used to purchase Capital
Stock of the Parent pursuant to the Operating Partners Program,
provided that such Guaranty Obligations of the Parent shall at no time
exceed $6,000,000 in the aggregate during the period from the Closing
Date to the Maturity Date; and
(i) Indebtedness arising from performance and standby letters
of credit not to exceed an aggregate maximum amount of $1,000,000 at
any one time.
8.2 LIENS.
No Credit Party will, nor will it permit its Subsidiaries to, contract,
create, incur, assume or permit to exist any Lien with respect to any of its
property or assets of any kind (whether real or personal, tangible or
intangible), whether now owned or after acquired, except for Permitted Liens.
8.3 NATURE OF BUSINESS.
No Credit Party will, nor will it permit its Subsidiaries to, alter the
character of its business from that conducted as of the Closing Date or engage
in any business other than the business conducted as of the Closing Date.
8.4 CONSOLIDATION AND MERGER.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction of merger or consolidation or liquidate, wind up or
dissolve itself (or suffer any liquidation or dissolution); provided that
notwithstanding the foregoing provisions of this Section 8.4, (i) any Credit
Party may be merged or consolidated with or into another Credit Party if (a) the
Administrative Agent is given prior written notice of such action and the Credit
Parties execute and deliver such documents, instruments, certificates and
opinions as the Administrative Agent may request, including, without limitation,
those necessary in order to maintain the perfection and priority of the Liens on
the Collateral and (b) after giving effect thereto no Default or Event of
Default exists; provided, that if the transaction is between the Parent and
another Credit Party the Parent must be the continuing or surviving entity and
(ii) any Immaterial Subsidiary of the Parent may liquidate, wind up or dissolve
itself.
8.5 SALE OR LEASE OF ASSETS.
No Credit Party will, nor will it permit its Subsidiaries to, convey,
sell, lease, transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business or assets whether now owned or
hereafter acquired, including, without limitation, inventory, receivables,
equipment, real property interests (whether owned or leasehold), and securities,
other than:
(a) any inventory sold or otherwise disposed of in the
ordinary course of business;
68
(b) the sale, lease or transfer by a Credit Party of any or
all of its assets to another Credit Party so long as the Non-Operating
Subsidiaries (after giving effect to such sale, lease or transfer)
shall not own, on a collective basis, property, plant and equipment
valued at more than five percent (5%) of the consolidated assets of the
Parent and its Subsidiaries on a consolidated basis;
(c) obsolete, slow-moving, idle or worn-out assets no longer
used or useful in its business or the trade in of equipment for
equipment in better condition or of better quality; and
(d) the sale of the real property and personal property
associated therewith identified on Schedule 8.5(d); and
(e) the sale of real property, including up to eleven (11)
restaurants, in any fiscal year provided that (i) no Default or Event
of Default exists before or after giving effect to any such sale, (ii)
each such restaurant or other real property is sold pursuant to the
terms and conditions of an arms-length contract for fair market value
and (iii) to the extent such dispositions permitted under this
subclause (e) exceed $50,000,000 in the aggregate during the period
from the Closing Date to the Maturity Date, the Revolving Committed
Amount shall be immediately permanently reduced by the amount by which
such dispositions permitted by this subclause (e) exceed $50,000,000 in
the aggregate during the period from the Closing Date to the Maturity
Date.
8.6 SALE LEASEBACKS.
The Credit Parties hereby agree that to the extent the Credit Parties
or any of their Subsidiaries directly or indirectly become or remain liable as
lessee or as guarantor or other surety with respect to any lease of any property
(whether real or personal or mixed), whether now owned or hereafter acquired,
(a) which such Credit Party or its Subsidiary has sold or transferred or is to
sell or transfer to any other Person other than a Credit Party or (b) which such
Credit Party or its Subsidiary intends to use for substantially the same purpose
as any other property which has been sold or is to be sold or transferred by
such Credit Party to any Person in connection with such lease in an amount
exceeding $6,000,000 in the aggregate during any fiscal year, the Revolving
Committed Amount shall be immediately permanently reduced by the amount by which
such sale leaseback transactions in any fiscal year exceed $6,000,000 in the
aggregate during such fiscal year.
8.7 INVESTMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, make any
Investments except for Permitted Investments.
8.8 RESTRICTED PAYMENTS.
(a) No Credit Party will, nor will it permit its Subsidiaries to,
directly or indirectly, (i) declare or pay any dividends or make any other
distribution (whether in cash, securities or other payments) upon any shares of
its Capital Stock of any class (other than dividends payable solely in Capital
Stock); provided that, any Subsidiary of the Parent may pay dividends to its
parent or (ii) purchase, redeem, make a sinking fund or similar payment or
otherwise acquire or retire or make any provisions for redemption, acquisition
or retirement of any shares of its Capital Stock of any class or any warrants or
options to purchase any such shares; provided, that, so long as at the time of
any such repurchase and after giving effect thereto, no Default or Event of
Default shall exist or be continuing, the Parent may repurchase shares of its
Capital Stock pursuant to the Share Repurchase Program so long as, immediately
after giving effect to any such repurchase, the aggregate amount of such
repurchases shall not exceed the sum of (A) (1) $22,295,500 increased on a
cumulative basis as of the end of each fiscal quarter of the Borrower by (2) an
69
amount equal to 50% of Net Income for such period (or minus 100% of Net Income
for such period if Net Income for such period if a loss) plus (B) the
Carryforward Restricted Payment Basket minus (C) the amount of the aggregate
Unused Restricted Payment Allowance allocated to the Carryforward Capital
Expenditure Basket as provided below.
(b) Within 90 days after the end of each fiscal year of the Parent,
with the delivery of the audited annual financial statements in respect of the
immediately preceding fiscal year of the Parent pursuant to Section 7.1(a), the
Parent shall notify the Administrative Agent of (i) the Unused Restricted
Payment Allowance for such immediately preceding fiscal year and (ii) whether or
not the Parent will allocate any portion of such Unused Restricted Payment
Allowance to the Carryforward Capital Expenditure Basket, whereupon the
Carryforward Capital Expenditure Basket shall be immediately increased by the
amounts allocated thereto. Notwithstanding the foregoing, the Carryforward
Capital Expenditure Basket may not be increased in any fiscal year by more than
$10,000,000.
8.9 TRANSACTIONS WITH AFFILIATES.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into any transaction or series of transactions, whether or not in the ordinary
course of business, with any officer, director, shareholder, Subsidiary or
Affiliate other than (a) any transaction between one Credit Party and another
Credit Party, (b) without limiting subclause (a) of this Section 8.9,
intercompany transactions expressly permitted by Section 8.1, Section 8.4,
Section 8.5, or Section 8.7 and (c) other transactions which are entered into on
terms and conditions substantially as favorable as would be obtainable in a
comparable arm's-length transaction with a Person other than an officer,
director, shareholder, Subsidiary or Affiliate.
8.10 FISCAL YEAR; ORGANIZATIONAL DOCUMENTS.
No Credit Party will, nor will it permit its Subsidiaries to, (a)
change its fiscal year or (b) in any manner that would reasonably be likely to
materially adversely affect the rights of the Lenders, change its articles or
certificate of incorporation, operating agreement, articles of organization or
its bylaws or (c) without providing ten (10) days prior written notice to the
Administrative Agent, change its name or state of formation.
8.11 NO LIMITATIONS.
No Credit Party will, nor will it permit its Subsidiaries to, directly
or indirectly, create or otherwise cause, incur, assume, suffer or permit to
exist or become effective any consensual encumbrance or restriction of any kind
on the ability of any such Person to (a) pay dividends or make any other
distribution on any of such Person's Capital Stock, (b) pay any Indebtedness
owed to any other Credit Party, (c) make loans or advances to any other Credit
Party, (d) sell, lease or transfer any of its properties or assets to any other
Credit Party or (e) act as a Credit Party and pledge its Collateral pursuant to
the Credit Documents or any renewals, refinancings, exchanges, refundings or
extensions thereof, except (in respect of any of the matters referred to in
subsections (a)-(d) above) for encumbrances or restrictions existing under or by
reason of (i) applicable law, (ii) this Credit Agreement and the other Credit
Documents, (iii) the Note Purchase Agreements as in effect on the Closing Date,
as amended in accordance with Section 8.15, (iv) the 2003 Note Purchase
Agreement as in effect on the Closing Date, as amended in accordance with
Section 8.15 and (v) customary non-assignment or net worth provisions in any
lease governing a leasehold interest.
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8.12 NO OTHER NEGATIVE PLEDGES.
No Credit Party will, nor will it permit its Subsidiaries to, enter
into, assume or become subject to any agreement prohibiting or otherwise
restricting the creation or assumption of any Lien upon its properties or
assets, whether now owned or hereafter acquired, or requiring the grant of any
security for such obligation if security is given for some other obligation
except (a) as set forth in the Credit Documents, (b) agreements entered into in
connection with Indebtedness permitted by Section 8.1(c) so long as such
agreements do not prohibit Liens in favor of the Secured Parties and the
restrictions contained in such agreements relate only to the asset or assets
acquired or constructed in connection therewith, (c) as set forth in Section
10.6 of the Note Purchase Agreement and (d) as set forth in Section 10.6 of the
2003 Note Purchase Agreement.
8.13 CAPITAL EXPENDITURES.
(a) The Credit Parties will not permit Capital Expenditures in any
fiscal year, commencing with the fiscal year ending December 29, 2004, to exceed
the sum of (i) the amount set forth below for the relevant fiscal year set forth
below (the "Initial Capital Expenditure Basket") plus (ii) the amount of net
cash proceeds received in such fiscal year from the sale of restaurants in
accordance with Section 8.5(e) plus (iii) the Carryforward Capital Expenditure
Basket:
----------------------------------- --------------------------------
FISCAL YEAR AMOUNT
----------------------------------- --------------------------------
2004 $90,000,000
----------------------------------- --------------------------------
2005 $94,000,000
----------------------------------- --------------------------------
2006 $98,000,000
----------------------------------- --------------------------------
2007 $102,000,000
----------------------------------- --------------------------------
2008 $106,000,000
----------------------------------- --------------------------------
2009 $110,000,000
----------------------------------- --------------------------------
(b) Within 90 days after the end of each fiscal year of the Parent,
with the delivery of the audited annual financial statements in respect of the
immediately preceding fiscal year of the Parent pursuant to Section 7.1(a), the
Parent shall notify the Administrative Agent of (i) the Unused Capital
Expenditure Allowance for such immediately preceding fiscal year and (ii) the
Parent's allocation of such Unused Capital Expenditure Allowance in whole or in
part to the Carryforward Capital Expenditure Basket and/or the Carryforward
Restricted Payment Basket, whereupon the Carryforward Capital Expenditure Basket
and/or the Carryforward Restricted Payment Basket shall be immediately increased
by the amounts allocated thereto. If the Parent fails to deliver such timely
notice to the Administrative Agent, the Unused Capital Expenditure Allowance
shall be allocated first to the Carryforward Restricted Payment Basket and then
to the Carryforward Capital Expenditure Basket. Notwithstanding the foregoing,
(A) the Carryforward Capital Expenditure Basket may not be increased in any
fiscal year by more than $10,000,000, (B) the Carryforward Restricted Payment
Basket may not be increased in any fiscal year by more than $25,000,000 and (C)
no increase in the Carryforward Restricted Payment Basket shall be permitted if
the aggregate amount of the Capital Expenditures made in the immediately
preceding fiscal year was less than $40,000,000.
8.14 OWNERSHIP OF SUBSIDIARIES.
The Parent shall at all times own, directly or indirectly, 100% of the
Capital Stock of any Subsidiary of the Parent; provided, that another Subsidiary
of the Parent may own Capital Stock in any Subsidiary of the Parent.
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8.15 MODIFICATION OF INDEBTEDNESS.
Other than with respect to (i) Indebtedness arising under this Credit
Agreement and the other Credit Documents and (ii) any Indebtedness owing from
one Credit Party to another Credit Party, no Credit Party will, nor will it
permit any of its Subsidiaries to, after the issuance thereof, amend or modify
(or permit the amendment or modification of) any of the terms of any
Indebtedness if such amendment or modification would add or change any terms in
a manner adverse to the issuer of such Indebtedness, or shorten the final
maturity or average life to maturity or require any payment to be made sooner
than originally scheduled or increase the interest rate applicable thereto or
change any subordination provision thereof; provided, that, the Parent may enter
into an amendment or modification of the Note Purchase Agreements or the 2003
Note Purchase Agreement in a manner adverse to the Parent so long as the Parent
agrees to make amendments or modifications to the Credit Documents in a manner
consistent with such amendments or modifications made to the Note Purchase
Agreements or the 2003 Note Purchase Agreement.
8.16 PREPAYMENT OF INDEBTEDNESS.
Other than with respect to (i) Indebtedness arising under this Credit
Agreement and the other Credit Documents and (ii) any Indebtedness owing from
one Credit Party to another Credit Party, no Credit Party will, nor will it
permit any of its Subsidiaries to, make (or give any notice with respect
thereto) any voluntary or optional payment or prepayment or redemption or
acquisition for value of (including without limitation, by way of depositing
money or securities with the trustee with respect thereto before due for the
purpose of paying when due), refund, refinance or exchange of any Indebtedness
except that (a) the Parent may make a voluntary or optional prepayment on (I)
the Senior Notes in accordance with Section 8.2 of the Note Purchase Agreements
and (II) the 2003 Senior Notes in accordance with Section 8.2 of the 2003 Note
Purchase Agreement; provided that (A) the Parent provides the Administrative
Agent with written notice of such prepayments five (5) Business Days prior to
the date of such prepayment and (B) the Revolving Committed Amount is
permanently reduced on a pro rata basis according to the aggregate unpaid
principal amount of the Senior Notes and the 2003 Senior Notes and the amount of
the Revolving Committed Amount on the date of such prepayment in accordance with
Section 3.4(b) and (b) the Parent may make a prepayment on (I) the Senior Notes
in accordance with Section 8.3 of the Note Purchase Agreements and (II) the 2003
Senior Notes in accordance with Section 8.3 of the 2003 Note Purchase Agreement;
provided that (A) the Parent provides the Administrative Agent with all notices
related to such prepayments required by Section 7.1(l) and (B) the Loans are
prepaid on a pro rata basis according to the aggregate unpaid principal amount
of the Senior Notes and the 2003 Senior Notes and the aggregate unpaid principal
amount of the Loans in accordance with Section 3.3(b)(ii).
SECTION 9
EVENTS OF DEFAULT
9.1 EVENTS OF DEFAULT.
An Event of Default shall exist upon the occurrence, and during the
continuance, of any of the following specified events (each an "Event of
Default"):
(a) Payment. Any Credit Party shall default in the payment (i)
when due of any principal of any of the Loans or any reimbursement
obligation arising from drawings under Letters of Credit or (ii) within
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three Business Days of when due of any interest on the Loans or any
fees or other amounts owing hereunder, under any of the other Credit
Documents or in connection herewith.
(b) Representations. Any representation, warranty or statement
made or deemed to be made by any Credit Party herein, in any of the
other Credit Documents, or in any statement or certificate delivered or
required to be delivered pursuant hereto or thereto shall prove untrue
in any material respect on the date as of which it was made or deemed
to have been made.
(c) Covenants. Any Credit Party shall:
(i) default in the due performance or observance of
any term, covenant or agreement contained in Sections 7.2,
7.3, 7.5, 7.10, 7.12 or Section 8;
(ii) default in the due performance or observance by
it of any term, covenant or agreement contained in Section 7.1
and such default shall continue unremedied for a period of
five Business Days;
(iii) default in the due performance or observance by
it of any term, covenant or agreement (other than those
referred to in subsections (a), (b) or (c)(i) or (ii) of this
Section 9.1) contained in this Credit Agreement and such
default shall continue unremedied for a period of at least 30
days after the earlier of a Credit Party becoming aware of
such default or notice thereof given by the Administrative
Agent.
(d) Other Credit Documents. (i) Any Credit Party shall default
in the due performance or observance of any term, covenant or agreement
in any of the other Credit Documents and such default shall continue
unremedied for a period of at least 30 days after the earlier of a
Credit Party becoming aware of such default or notice thereof given by
the Administrative Agent, or (ii) other than because of acts or failure
to act by the Lenders, the Administrative Agent or the Collateral
Agent, any Credit Document shall fail to be in full force and effect or
any Credit Party shall so assert or any Credit Document shall fail to
give the Collateral Agent and/or the Lenders the security interests,
liens, rights, powers and privileges purported to be created thereby.
(e) Guaranties. The guaranty given by the Credit Parties
hereunder or by any Additional Credit Party hereafter or any provision
thereof shall cease to be in full force and effect, or any guarantor
thereunder or any Person acting by or on behalf of such guarantor shall
deny or disaffirm such Guarantor's obligations under such guaranty.
(f) Bankruptcy, etc. The occurrence of any of the following:
(i) a court or governmental agency having jurisdiction in the premises
shall enter a decree or order for relief in respect of any Credit Party
or any of its Subsidiaries in an involuntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect,
or appoint a receiver, liquidator, assignee, custodian, trustee,
sequestrator or similar official of any Credit Party or any of its
Subsidiaries or for any substantial part of its property or ordering
the winding up or liquidation of its affairs; or (ii) an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect is commenced against any Credit Party or any
of its Subsidiaries and such petition remains unstayed and in effect
for a period of 60 consecutive days; or (iii) any Credit Party or any
of its Subsidiaries shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment or
taking possession by a receiver, liquidator, assignee, custodian,
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trustee, sequestrator or similar official of such Person or any
substantial part of its property or make any general assignment for the
benefit of creditors; or (iv) any Credit Party or any of its
Subsidiaries shall admit in writing its inability to pay its debts
generally as they become due or any action shall be taken by such
Person in furtherance of any of the aforesaid purposes.
(g) Defaults under Other Agreements.
(i) A Credit Party or any of its Subsidiaries shall
default in the due performance or observance (beyond the
applicable grace period with respect thereto) of any material
obligation or condition of any contract or lease to which it
is a party (including, without limitation, any Hedging
Agreement, but excluding the Credit Documents), if such
default would have or be reasonably expected to have a
Material Adverse Effect; or
(ii) With respect to any Indebtedness (other than
Indebtedness outstanding under this Credit Agreement) of a
Credit Party or any of its Subsidiaries in an aggregate
principal amount in excess of $5,000,000, (A) such Person
shall (x) default in any payment (beyond the applicable grace
period with respect thereto, if any) with respect to any such
Indebtedness, or (y) default (after giving effect to any
applicable grace period) in the observance or performance
relating to such Indebtedness or contained in any instrument
or agreement evidencing, securing or relating thereto, or any
other event or condition shall occur or condition exist, the
effect of which default or other event or condition is to
cause or permit the holder or holders of such Indebtedness (or
trustee or agent on behalf of such holders) to cause
(determined without regard to whether any notice or lapse of
time is required) any such Indebtedness to become due prior to
its stated maturity; or (B) any such Indebtedness shall be
declared due and payable, or required to be prepaid other than
by a regularly scheduled required prepayment prior to the
stated maturity thereof; or (C) any such Indebtedness shall
mature and remain unpaid.
(h) Judgments. One or more judgments, orders, or decrees
(including, without limitation, any judgment, order, or decree with
respect to any litigation disclosed pursuant to the Credit Documents)
shall be entered against any one or more of the Credit Parties and its
Subsidiaries involving a liability of $5,000,000 or more, in the
aggregate, (to the extent not paid or covered by insurance provided by
a carrier who has acknowledged coverage) and such judgments, orders or
decrees (i) are the subject of any enforcement proceeding commenced by
any creditor, (ii) shall continue unsatisfied, undischarged and
unstayed for a period ending on the first to occur of (A) the last day
on which such judgment, order or decree becomes final and unappealable
or (B) 60 days, or (iii) are stayed and are not discharged within 60
days after the expiration of such stay.
(i) ERISA. The occurrence of any of the following events or
conditions which would have or be reasonably expected to have a
Material Adverse Effect: (A) any "accumulated funding deficiency," as
such term is defined in Section 302 of ERISA and Section 412 of the
Code, whether or not waived, shall exist with respect to any Plan, or
any Lien shall arise on the assets of any Credit Party or any ERISA
Affiliate in favor of the PBGC or a Plan; (B) a Termination Event shall
occur with respect to a Single Employer Plan, which is likely to result
in the termination of such Plan for purposes of Title IV of ERISA; (C)
a Termination Event shall occur with respect to a Multiemployer Plan or
Multiple Employer Plan, which is likely to result in (i) the
termination of such Plan for purposes of Title IV of ERISA, or (ii) any
Credit Party or any ERISA Affiliate incurring any liability in
connection with a withdrawal from, reorganization of (within the
meaning of Section 4241 of ERISA), or insolvency (within the meaning of
Section 4245 of ERISA) of such Plan; or (D) any non-exempt prohibited
transaction (within the meaning of Section 406 of ERISA or Section 4975
of the Code) or breach of fiduciary responsibility shall occur which
may subject any Credit Party or any ERISA Affiliate to any liability
under Sections 406, 409, 502(i), or 502(l) of ERISA or Section 4975 of
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the Code, or under any agreement or other instrument pursuant to which
any Credit Party or any ERISA Affiliate has agreed or is required to
indemnify any person against any such liability.
(j) Ownership. There shall occur a Change of Control.
(k) Note Purchase Agreements. There shall occur a default or
an event of default under (i) any of the Note Purchase Agreements, (ii)
the Senior Notes or (iii) any other related agreement, document, or
instrument issued or delivered in connection with any of the Note
Purchase Agreements.
(l) 2003 Note Purchase Agreement. There shall occur a default
or an event of default under (i) the 2003 Note Purchase Agreement, (ii)
the 2003 Senior Notes or (iii) any other related agreement, document,
or instrument issued or delivered in connection with the 2003 Note
Purchase Agreement.
9.2 ACCELERATION; REMEDIES.
Upon the occurrence and during the continuance of an Event of Default
and at any time thereafter unless and until such Event of Default has been
waived in writing by the Required Lenders (or the Lenders as may be required
hereunder), the Administrative Agent shall, upon the request and direction of
the Required Lenders, by written notice to the Parent, take the following
actions without prejudice to the rights of the Agents or any Lender to enforce
its claims against the Credit Parties, except as otherwise specifically provided
for herein:
(a) Termination of Commitments. Declare the Commitments
terminated whereupon the Commitments shall be immediately terminated.
(b) Acceleration of Loans. Declare the unpaid principal of and
any accrued interest in respect of all Loans, any reimbursement
obligations arising from drawings under Letters of Credit and any and
all other indebtedness or obligations of any and every kind owing by a
Credit Party to any of the Lenders hereunder to be due whereupon the
same shall be immediately due and payable without presentment, demand,
protest or other notice of any kind, all of which are hereby waived by
the Credit Parties.
(c) Cash Collateral. Direct the Parent to pay (and the Parent
agrees that upon receipt of such notice or upon the occurrence of an
Event of Default under Section 9.1(f), it will immediately pay) to the
Administrative Agent additional cash to be held by the Administrative
Agent, for the benefit of the Lenders, in a cash collateral account as
additional security for the L/C Obligations in respect of subsequent
drawings under all then outstanding Letters of Credit in an amount
equal to the maximum aggregate amount which may be drawn under all
Letters of Credits then outstanding.
(d) Enforcement of Rights. Enforce any and all rights and
interests created and existing under the Credit Documents, including,
without limitation, all rights and remedies existing under the
Collateral Documents, all rights and remedies against a Guarantor and
all rights of set-off.
Notwithstanding the foregoing, upon the occurrence of an actual or deemed entry
of an order for relief with respect to any Borrower under the Bankruptcy Code of
the United States, the obligation of each Lender to make Loans and any
obligation of the Issuing Lenders to make L/C Credit Extensions shall
automatically terminate, the unpaid principal amount of all outstanding Loans
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and all interest and other amounts as aforesaid shall automatically become due
and payable, and the obligation of the Borrowers to Cash Collateralize the L/C
Obligations as aforesaid shall automatically become effective, in each case
without further act of the Administrative Agent or any Lender.
9.3 ALLOCATION OF PAYMENTS AFTER EVENT OF DEFAULT.
Notwithstanding any other provisions of this Credit Agreement, after
the occurrence and during the continuance of an Event of Default, all amounts
collected or received by any Agent or any Lender on account of amounts
outstanding under any of the Credit Documents or in respect of the Collateral
shall be paid over or delivered as follows:
FIRST, to the payment of all reasonable out-of-pocket costs
and expenses (including without limitation reasonable attorneys' fees)
of the Agents or any of the Lenders in connection with enforcing the
rights of the Lenders under the Credit Documents and any protective
advances made by any Agent or any of the Lenders with respect to the
Collateral under or pursuant to the terms of the Collateral Documents;
SECOND, to payment of any fees owed to the Agents, the Issuing
Lender or any Lender;
THIRD, to the payment of all accrued interest payable to the
Lenders hereunder and all other obligations (other than those
obligations to be paid pursuant to clause "FOURTH" below) which shall
have become due and payable under the Credit Documents and not repaid
pursuant to clauses "FIRST" and "SECOND" above;
FOURTH, to the payment of the outstanding principal amount of
the Loans and unreimbursed drawings under Letters of Credit, to the
payment or cash collateralization of the outstanding L/C Obligations
and to any principal amounts outstanding under Hedging Agreements
between a Credit Party and a Lender, pro rata as set forth below; and
FIFTH, the payment of the surplus, if any, to whoever may be
lawfully entitled to receive such surplus.
In carrying out the foregoing, (a) amounts received shall be applied in the
numerical order provided until exhausted prior to application to the next
succeeding category; (b) each of the Lenders shall receive an amount equal to
its pro rata share (based on the proportion that the then outstanding Loans, L/C
Obligations and obligations under Hedging Agreements held by such Lender bears
to the aggregate then outstanding Loans, L/C Obligations and obligations under
Hedging Agreements) of amounts available to be applied; and (c) to the extent
that any amounts available for distribution pursuant to clause "FOURTH" above
are attributable to the issued but undrawn amount of outstanding Letters of
Credit, such amounts shall be held by the Administrative Agent in a cash
collateral account and applied (x) first, to reimburse the Issuing Lender from
time to time for any drawings under such Letters of Credit and (y) then,
following the expiration of all Letters of Credit, to all other obligations of
the types described in clause "FOURTH" above in the manner provided in this
Section 9.3.
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SECTION 10
AGENCY PROVISIONS
10.1 APPOINTMENT AND AUTHORITY.
(a) Each of the Lenders and the Issuing Lender hereby irrevocably
appoints Bank of America to act on its behalf as the Administrative Agent and
the Collateral Agent hereunder and under the other Credit Documents and
authorizes the Administrative Agent and the Collateral Agent to take such
actions on its behalf and to exercise such powers as are delegated to the
Administrative Agent and the Collateral Agent by the terms hereof or thereof,
together with such actions and powers as are reasonably incidental thereto. The
provisions of this Section are solely for the benefit of the Administrative
Agent and the Collateral Agent, the Lenders and the Issuing Lender, and neither
the Borrowers nor any other Credit Party shall have rights as a third party
beneficiary of any of such provisions.
(b) Each Lender hereby consents to and approves the terms of the
Intercreditor Agreement, a copy of which is attached hereto as Schedule 10.1(b).
By execution hereof, the Lenders acknowledge the terms of the Intercreditor
Agreement and agree to be bound by the terms thereof and further authorize and
direct the Administrative Agent to enter into the Intercreditor Agreement on
behalf of all the Lenders.
10.2 RIGHTS AS A LENDER.
The Person serving as the Administrative Agent hereunder shall have the
same rights and powers in its capacity as a Lender as any other Lender and may
exercise the same as though it were not the Administrative Agent and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated or unless the
context otherwise requires, include the Person serving as the Administrative
Agent hereunder in its individual capacity. Such Person and its Affiliates may
accept deposits from, lend money to, act as the financial advisor or in any
other advisory capacity for and generally engage in any kind of business with
any Borrower or any Subsidiary or other Affiliate thereof as if such Person were
not the Administrative Agent hereunder and without any duty to account therefor
to the Lenders.
10.3 EXCULPATORY PROVISIONS.
The Administrative Agent and the Collateral Agent shall not have any
duties or obligations except those expressly set forth herein and in the other
Credit Documents. Without limiting the generality of the foregoing, the
Administrative Agent and the Collateral Agent:
(a) shall not be subject to any fiduciary or other implied
duties, regardless of whether a Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action
or exercise any discretionary powers, except (i) with respect to the
Administrative Agent, discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that the
Administrative Agent is required to exercise as directed in writing by
the Required Lenders (or such other number or percentage of the Lenders
as shall be expressly provided for herein or in the other Credit
Documents), provided that the Administrative Agent shall not be
required to take any action that, in its opinion or the opinion of its
counsel, may expose the Administrative Agent to liability or that is
contrary to any Credit Document or applicable law and (ii) with respect
to the Collateral Agent, discretionary rights and powers expressly
contemplated hereby or by the other Credit Documents that the
Collateral Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as
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shall be expressly provided for herein or in the other Credit
Documents), provided that the Collateral Agent shall not be required to
take any action that, in its opinion or the opinion of its counsel, may
expose the Collateral Agent to liability or that is contrary to any
Credit Document or applicable law; and
(c) shall not, except as expressly set forth herein and in the
other Credit Documents, have any duty to disclose, and shall not be
liable for the failure to disclose, any information relating to the
Borrowers or any of their Affiliates that is communicated to or
obtained by the Person serving as the Administrative Agent and the
Collateral Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or
not taken by it (i) with the consent or at the request of the Required Lenders
(or such other number or percentage of the Lenders as shall be necessary, or as
the Administrative Agent shall believe in good faith shall be necessary, under
the circumstances as provided in Sections 11.7 and 9.2) or (ii) in the absence
of its own gross negligence or willful misconduct. The Administrative Agent
shall be deemed not to have knowledge of any Default unless and until notice
describing such Default is given to the Administrative Agent by a Borrower, a
Lender or the Issuing Lender. The Collateral Agent shall not be liable for any
action taken or not taken by it (i) with the consent or at the request of the
Required Lenders (or such other number or percentage of the Lenders as shall be
necessary, or as the Collateral Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Sections 11.7 and 9.2) or (ii)
in the absence of its own gross negligence or willful misconduct. The Collateral
Agent shall be deemed not to have knowledge of any Default unless and until
notice describing such Default is given to the Collateral Agent by a Borrower, a
Lender or the Issuing Lender.
The Administrative Agent and the Collateral Agent shall not be
responsible for or have any duty to ascertain or inquire into (i) any statement,
warranty or representation made in or in connection with this Credit Agreement
or any other Credit Document, (ii) the contents of any certificate, report or
other document delivered hereunder or thereunder or in connection herewith or
therewith, (iii) the performance or observance of any of the covenants,
agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or
genuineness of this Credit Agreement, any other Credit Document or any other
agreement, instrument or document or (v) the satisfaction of any condition set
forth in Section 5 or elsewhere herein, other than to confirm receipt of items
expressly required to be delivered to the Administrative Agent or the Collateral
Agent, as applicable.
10.4 RELIANCE BY ADMINISTRATIVE AGENT.
Each of the Agents shall be entitled to rely upon, and shall not incur
any liability for relying upon, any notice, request, certificate, consent,
statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by
it to be genuine and to have been signed, sent or otherwise authenticated by the
proper Person. Each of the Agents also may rely upon any statement made to it
orally or by telephone and believed by it to have been made by the proper
Person, and shall not incur any liability for relying thereon. In determining
compliance with any condition hereunder to the making of a Loan, or the issuance
of a Letter of Credit, that by its terms must be fulfilled to the satisfaction
of a Lender or the Issuing Lender, the Administrative Agent may presume that
such condition is satisfactory to such Lender or the Issuing Lender unless the
Administrative Agent shall have received notice to the contrary from such Lender
or the Issuing Lender prior to the making of such Loan or the issuance of such
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Letter of Credit. Each of the Agents may consult with legal counsel (who may be
counsel for the Borrowers), independent accountants and other experts selected
by it, and shall not be liable for any action taken or not taken by it in
accordance with the advice of any such counsel, accountants or experts.
10.5 DELEGATION OF DUTIES.
Each of the Agents may perform any and all of its duties and exercise
its rights and powers hereunder or under any other Credit Document by or through
any one or more sub-agents appointed by such Agent. Each of the Agents and any
such sub-agent may perform any and all of its duties and exercise its rights and
powers by or through their respective Related Parties. The exculpatory
provisions of this Section shall apply to any such sub-agent and to the Related
Parties of the Agents and any such sub-agent, and shall apply to their
respective activities in connection with the syndication of the credit
facilities provided for herein as well as activities as the Agents.
10.6 RESIGNATION.
The Administrative Agent may at any time give notice of its resignation
to the Lenders, the Issuing Lender and the Parent. Upon receipt of any such
notice of resignation, the Required Lenders shall have the right, in
consultation with the Parent, to appoint a successor, which shall be a bank with
an office in the United States, or an Affiliate of any such bank with an office
in the United States. If no such successor shall have been so appointed by the
Required Lenders and shall have accepted such appointment within 30 days after
the retiring Administrative Agent gives notice of its resignation, then the
retiring Administrative Agent may on behalf of the Lenders and the Issuing
Lender, appoint a successor Administrative Agent meeting the qualifications set
forth above; provided that if the Administrative Agent shall notify the Parent
and the Lenders that no qualifying Person has accepted such appointment, then
such resignation shall nonetheless become effective in accordance with such
notice and (1) the retiring Administrative Agent shall be discharged from its
duties and obligations hereunder and under the other Credit Documents (except
that in the case of any collateral security held by the Administrative Agent on
behalf of the Lenders or the Issuing Lender under any of the Credit Documents,
the retiring Administrative Agent shall continue to hold such collateral
security until such time as a successor Administrative Agent is appointed) and
(2) all payments, communications and determinations provided to be made by, to
or through the Administrative Agent shall instead be made by or to each Lender
and the Issuing Lender directly, until such time as the Required Lenders appoint
a successor Administrative Agent as provided for above in this Section. Upon the
acceptance of a successor's appointment as Administrative Agent hereunder, such
successor shall succeed to and become vested with all of the rights, powers,
privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and
obligations hereunder or under the other Credit Documents (if not already
discharged therefrom as provided above in this Section). The fees payable by the
Borrowers to a successor Administrative Agent shall be the same as those payable
to its predecessor unless otherwise agreed between the Borrowers and such
successor. After the retiring Administrative Agent's resignation hereunder and
under the other Credit Documents, the provisions of this Section and Section
11.6 shall continue in effect for the benefit of such retiring Administrative
Agent, its sub-agents and their respective Related Parties in respect of any
actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
Any resignation by Bank of America as Administrative Agent pursuant to
this Section shall also constitute its resignation as Issuing Lender and
Swingline Lender. Upon the acceptance of a successor's appointment as
Administrative Agent hereunder, (a) such successor shall succeed to and become
vested with all of the rights, powers, privileges and duties of the retiring
Issuing Lender and Swingline Lender, (b) the retiring Issuing Lender and
Swingline Lender shall be discharged from all of their respective duties and
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obligations hereunder or under the other Credit Documents, and (c) the successor
Issuing Lender shall issue letters of credit in substitution for the Letters of
Credit, if any, outstanding at the time of such succession or make other
arrangement satisfactory to the retiring Issuing Lender to effectively assume
the obligations of the retiring Issuing Lender with respect to such Letters of
Credit.
10.7 NON-RELIANCE ON AGENTS AND OTHER LENDERS.
Each Lender and the Issuing Lender acknowledges that it has,
independently and without reliance upon the Agents or any other Lender or any of
their Related Parties and based on such documents and information as it has
deemed appropriate, made its own credit analysis and decision to enter into this
Credit Agreement. Each Lender and the Issuing Lender also acknowledges that it
will, independently and without reliance upon the Agents or any other Lender or
any of their Related Parties and based on such documents and information as it
shall from time to time deem appropriate, continue to make its own decisions in
taking or not taking action under or based upon this Credit Agreement, any other
Credit Document or any related agreement or any document furnished hereunder or
thereunder.
10.8 AGENTS IN THEIR INDIVIDUAL CAPACITY.
Anything herein to the contrary notwithstanding, the Arranger listed on
the cover page hereof shall not have any powers, duties or responsibilities
under this Credit Agreement or any of the other Credit Documents, except in its
capacity, as applicable, as the Administrative Agent, the Collateral Agent, a
Lender or the Issuing Lender hereunder.
10.9 ADMINISTRATIVE AGENT MAY FILE PROOF OF CLAIMS.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then
be due and payable as herein expressed or by declaration or otherwise and
irrespective of whether the Administrative Agent shall have made any demand on
the Borrowers) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the
principal and interest owing and unpaid in respect of the Loans, L/C
Obligations and all other Credit Party Obligations (other than
obligations under Hedging Agreements to which the Administrative Agent
is not a party) that are owing and unpaid and to file such other
documents as may be necessary or advisable in order to have the claims
of the Lenders, the Issuing Lenders and the Administrative Agent
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Lenders, the Issuing Lenders and the
Administrative Agent and their respective agents and counsel and all
other amounts due the Lenders, the Issuing Lenders and the
Administrative Agent under Sections 2.2(i) and (j), 3.1 and 11.6)
allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Lender and each Issuing Lender to make such payments to the Administrative
Agent and, in the event that the Administrative Agent shall consent to the
making of such payments directly to the Lenders and the Issuing Lender, to pay
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to the Administrative Agent any amount due for the reasonable compensation,
expenses, disbursements and advances of the Administrative Agent and its agents
and counsel, and any other amounts due the Administrative Agent under Sections
3.1 and 11.6.
Nothing contained herein shall be deemed to authorize the Administrative Agent
to authorize or consent to or accept or adopt on behalf of any Lender or any
Issuing Lender any plan of reorganization, arrangement, adjustment or
composition affecting the Credit Party Obligations or the rights of any Lender
or to authorize the Administrative Agent to vote in respect of the claim of any
Lender in any such proceeding.
SECTION 11
MISCELLANEOUS
11.1 NOTICES; EFFECTIVENESS; ELECTRONIC COMMUNICATION.
(a) Notices Generally. Except in the case of notices and other
communications expressly permitted to be given by telephone (and except
as provided in subsection (b) below), all notices and other
communications provided for herein shall be in writing and shall be
delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopier as follows, and all notices and
other communications expressly permitted hereunder to be given by
telephone shall be made to the applicable telephone number, as follows:
(i) if to any Borrower, the Administrative Agent, the
Collateral Agent, the Issuing Lender or the Swingline Lender,
to the address, telecopier number, electronic mail address or
telephone number specified for such Person on Schedule 11.1;
and
(ii) if to any other Lender, to the address,
telecopier number, electronic mail address or telephone number
specified in its Administrative Questionnaire.
Notices sent by hand or overnight courier service, or mailed by
certified or registered mail, shall be deemed to have been given when
received; notices sent by telecopier shall be deemed to have been given
when sent (except that, if not given during normal business hours for
the recipient, shall be deemed to have been given at the opening of
business on the next business day for the recipient). Notices delivered
through electronic communications to the extent provided in subsection
(b) below, shall be effective as provided in such subsection (b).
(b) Electronic Communications. Notices and other
communications to the Lenders and the Issuing Lender hereunder may be
delivered or furnished by electronic communication (including e-mail
and Internet or intranet websites) pursuant to procedures approved by
the Administrative Agent, provided that the foregoing shall not apply
to notices to any Lender or the Issuing Lender pursuant to Section 2 if
such Lender or the Issuing Lender, as applicable, has notified the
Administrative Agent that it is incapable of receiving notices under
such Section by electronic communication. The Administrative Agent or a
Borrower may, in its discretion, agree to accept notices and other
communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures
may be limited to particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and
other communications sent to an e-mail address shall be deemed received
upon the sender's receipt of an acknowledgement from the intended
recipient (such as by the "return receipt requested" function, as
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available, return e-mail or other written acknowledgement), provided
that if such notice or other communication is not sent during the
normal business hours of the recipient, such notice or communication
shall be deemed to have been sent at the opening of business on the
next business day for the recipient, and (ii) notices or communications
posted to an Internet or intranet website shall be deemed received upon
the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice
or communication is available and identifying the website address
therefor.
(c) Change of Address, Etc. Each of the Borrowers, the
Administrative Agent, the Collateral Agent, the Issuing Lender and the
Swingline Lender may change its address, telecopier or telephone number
for notices and other communications hereunder by notice to the other
parties hereto. Each other Lender may change its address, telecopier or
telephone number for notices and other communications hereunder by
notice to the Borrowers, the Administrative Agent, the Collateral
Agent, the Issuing Lender and the Swingline Lender.
(d) Reliance by Administrative Agent, Issuing Lender and
Lenders. The Administrative Agent, the Collateral Agent, the Issuing
Lender and the Lenders shall be entitled to rely and act upon any
notices (including telephonic Notices of Borrowing and Swingline Loan
Requests) purportedly given by or on behalf of the Borrowers even if
(i) such notices were not made in a manner specified herein, were
incomplete or were not preceded or followed by any other form of notice
specified herein, or (ii) the terms thereof, as understood by the
recipient, varied from any confirmation thereof. The Borrowers shall
indemnify the Administrative Agent, the Collateral Agent, the Issuing
Lender, each Lender and the Related Parties of each of them from all
losses, costs, expenses and liabilities resulting from the reliance by
such Person on each notice purportedly given by or on behalf of the
Borrower. All telephonic notices to and other telephonic communications
with the Administrative Agent may be recorded by the Administrative
Agent, and each of the parties hereto hereby consents to such
recording. All telephonic notices to and other telephonic
communications with the Collateral Agent may be recorded by the
Collateral Agent, and each of the parties hereto hereby consents to
such recording
11.2 RIGHT OF SET-OFF.
In addition to any rights now or hereafter granted under applicable law
or otherwise, and not by way of limitation of any such rights, upon the
occurrence of an Event of Default and the commencement of remedies described in
Section 9.2, each Lender is authorized at any time and from time to time,
without presentment, demand, protest or other notice of any kind (all of which
rights being hereby expressly waived), to set-off and to appropriate and apply
any and all deposits (general or special) and any other indebtedness at any time
held or owing by such Lender (including, without limitation, branches, agencies
or Affiliates of such Lender wherever located) to or for the credit or the
account of any Credit Party against obligations and liabilities of such Credit
Party to the Lenders hereunder, under the Notes, the other Credit Documents or
otherwise, irrespective of whether the Administrative Agent or the Lenders shall
have made any demand hereunder and although such obligations, liabilities or
claims, or any of them, may be contingent or unmatured or otherwise fully
secured, and any such set-off shall be deemed to have been made immediately upon
the occurrence of an Event of Default even though such charge is made or entered
on the books of such Lender subsequent thereto. The Credit Parties hereby agree
that any Person purchasing a participation in the Loans and Commitments
hereunder pursuant to Section 11.3(e) or 3.8 may exercise all rights of set-off
with respect to its participation interest as fully as if such Person were a
Lender hereunder. Each Lender hereby agrees that any set-off affected pursuant
to this Section 11.2 shall be subject to the terms of the Intercreditor
Agreement.
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11.3 SUCCESSORS AND ASSIGNS.
(a) Successors and Assigns Generally. The provisions of this
Credit Agreement shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and assigns permitted
hereby, except that none of the Credit Parties may assign or otherwise
transfer any of its rights or obligations hereunder without the prior
written consent of the Administrative Agent and each Lender and no
Lender may assign or otherwise transfer any of its rights or
obligations hereunder except (i) to an Eligible Assignee in accordance
with the provisions of subsection (b) of this Section, (ii) by way of
participation in accordance with the provisions of subsection (d) of
this Section, or (iii) by way of pledge or assignment of a security
interest subject to the restrictions of subsection (f) of this Section
(and any other attempted assignment or transfer by any party hereto
shall be null and void). Nothing in this Credit Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the
parties hereto, their respective successors and assigns permitted
hereby, Participants to the extent provided in subsection (d) of this
Section and, to the extent expressly contemplated hereby, the Related
Parties of each of the Administrative Agent, the Issuing Lender and the
Lenders) any legal or equitable right, remedy or claim under or by
reason of this Credit Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign
to one or more Eligible Assignees all or a portion of its rights and
obligations under this Credit Agreement (including all or a portion of
its Commitment and the Loans (including for purposes of this subsection
(b), participations in L/C Obligations and in Swingline Loans) at the
time owing to it); provided that
(i) except in the case of an assignment of the entire
remaining amount of the assigning Lender's Commitment and the
Loans at the time owing to it or in the case of an assignment
to a Lender or an Affiliate of a Lender or an Approved Fund
with respect to a Lender, the aggregate amount of the
Commitment (which for this purpose includes Loans outstanding
thereunder) or, if the Commitment is not then in effect, the
principal outstanding balance of the Loans of the assigning
Lender subject to each such assignment, determined as of the
date the Assignment and Assumption with respect to such
assignment is delivered to the Administrative Agent or, if
"Trade Date" is specified in the Assignment and Assumption, as
of the Trade Date, shall not be less than $5,000,000 unless
each of the Administrative Agent and, so long as no Event of
Default has occurred and is continuing, the Parent otherwise
consents (each such consent not to be unreasonably withheld or
delayed);
(ii) each partial assignment shall be made as an
assignment of a proportionate part of all the assigning
Lender's rights and obligations under this Credit Agreement
with respect to the Loans or the Commitment assigned, except
that this clause (ii) shall not apply to rights in respect of
Swingline Loans;
(iii) any assignment of a Commitment must be approved
by the Administrative Agent, the Issuing Lender and the
Swingline Lender unless the Person that is the proposed
assignee is itself a Lender (whether or not the proposed
assignee would otherwise qualify as an Eligible Assignee); and
(iv) the parties to each assignment shall execute and
deliver to the Administrative Agent an Assignment and
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Assumption, together with a processing and recordation fee of
$3,500, and the Eligible Assignee, if it shall not be a
Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
Subject to acceptance and recording thereof by the Administrative Agent
pursuant to subsection (c) of this Section, from and after the
effective date specified in each Assignment and Assumption, the
Eligible Assignee thereunder shall be a party to this Credit Agreement
and, to the extent of the interest assigned by such Assignment and
Assumption, have the rights and obligations of a Lender under this
Credit Agreement, and the assigning Lender thereunder shall, to the
extent of the interest assigned by such Assignment and Assumption, be
released from its obligations under this Credit Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning
Lender's rights and obligations under this Credit Agreement, such
Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 3.8, 3.12, 3.14, and 11.6 with
respect to facts and circumstances occurring prior to the effective
date of such assignment. Upon request, each Borrower (at its expense)
shall execute and deliver a Note to the assignee Lender. Any assignment
or transfer by a Lender of rights or obligations under this Credit
Agreement that does not comply with this subsection shall be treated
for purposes of this Credit Agreement as a sale by such Lender of a
participation in such rights and obligations in accordance with
subsection (d) of this Section.
(c) Register. The Administrative Agent, acting solely for this
purpose as an agent of the Borrowers, shall maintain at the
Administrative Agent's Office a copy of each Assignment and Assumption
delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Commitments of, and principal amounts
of the Loans and L/C Obligations owing to, each Lender pursuant to the
terms hereof from time to time (the "Register"). The entries in the
Register shall be conclusive, and the Borrowers, the Administrative
Agent and the Lenders may treat each Person whose name is recorded in
the Register pursuant to the terms hereof as a Lender hereunder for all
purposes of this Credit Agreement, notwithstanding notice to the
contrary. The Register shall be available for inspection by the Parent
and the Issuing Lender at any reasonable time and from time to time
upon reasonable prior notice. In addition, at any time that a request
for a consent for a material or substantive change to the Credit
Documents is pending, any Lender wishing to consult with other Lenders
in connection therewith may request and receive from the Administrative
Agent a copy of the Register.
(d) Participations. Any Lender may at any time, without the
consent of, or notice to, any Borrower or the Administrative Agent,
sell participations to any Person (other than a natural person or a
Borrower or any of such Borrower's Affiliates or Subsidiaries) (each, a
"Participant") in all or a portion of such Lender's rights and/or
obligations under this Credit Agreement (including all or a portion of
its Commitment and/or the Loans (including such Lender's participations
in L/C Obligations and/or Swingline Loans) owing to it); provided that
(i) such Lender's obligations under this Credit Agreement shall remain
unchanged, (ii) such Lender shall remain solely responsible to the
other parties hereto for the performance of such obligations and (iii)
the Borrower, the Administrative Agent, the Lenders and the Issuing
Lender shall continue to deal solely and directly with such Lender in
connection with such Lender's rights and obligations under this Credit
Agreement.
Any agreement or instrument pursuant to which a Lender sells such a
participation shall provide that such Lender shall retain the sole
right to enforce this Credit Agreement and to approve any amendment,
modification or waiver of any provision of this Credit Agreement;
provided that such agreement or instrument may provide that such Lender
will not, without the consent of the Participant, agree to any
amendment, waiver or other modification described in the first proviso
to Section 11.7 that affects such Participant. Subject to subsection
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(e) of this Section, the Borrowers agree that each Participant shall be
entitled to the benefits of Sections 3.8, 3.12, and 3.14 to the same
extent as if it were a Lender and had acquired its interest by
assignment pursuant to subsection (b) of this Section. To the extent
permitted by law, each Participant also shall be entitled to the
benefits of Section 11.2 as though it were a Lender, provided such
Participant agrees to be subject to Section 3.2 as though it were a
Lender.
(e) Limitations upon Participant Rights. A Participant shall
not be entitled to receive any greater payment under Section 3.8 or
3.12 than the applicable Lender would have been entitled to receive
with respect to the participation sold to such Participant, unless the
sale of the participation to such Participant is made with the Parent's
prior written consent. A Participant that would be a Foreign Lender if
it were a Lender shall not be entitled to the benefits of Section 3.13
unless the Borrower is notified of the participation sold to such
Participant and such Participant agrees, for the benefit of the
Borrowers, to comply with Section 3.13(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or
assign a security interest in all or any portion of its rights under
this Credit Agreement (including under its Note, if any) to secure
obligations of such Lender, including any pledge or assignment to
secure obligations to a Federal Reserve Bank; provided that no such
pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for
such Lender as a party hereto.
(g) Electronic Execution of Assignments. The words
"execution," "signed," "signature," and words of like import in any
Assignment and Assumption shall be deemed to include electronic
signatures or the keeping of records in electronic form, each of which
shall be of the same legal effect, validity or enforceability as a
manually executed signature or the use of a paper-based recordkeeping
system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global
and National Commerce Act, the New York State Electronic Signatures and
Records Act, or any other similar state laws based on the Uniform
Electronic Transactions Act.
(h) Resignation as Issuing Lender or Swingline Lender after
Assignment. Notwithstanding anything to the contrary contained herein,
if at any time Bank of America assigns all of its Commitment and Loans
pursuant to subsection (b) above, Bank of America may, (i) upon 30
days' notice to the Parent and the Lenders, resign as Issuing Lender
and/or (ii) upon 30 days' notice to the Parent, resign as Swingline
Lender. In the event of any such resignation as Issuing Lender or
Swingline Lender, the Parent shall be entitled to appoint from among
the Lenders a successor Issuing Lender or Swingline Lender hereunder;
provided, however, that no failure by the Parent to appoint any such
successor shall affect the resignation of Bank of America as Issuing
Lender or Swingline Lender, as the case may be. If Bank of America
resigns as Issuing Lender, it shall retain all the rights and
obligations of the Issuing Lender hereunder with respect to all Letters
of Credit outstanding as of the effective date of its resignation as
Issuing Lender and all L/C Obligations with respect thereto (including
the right to require the Lenders to make Base Rate Loans or fund risk
participations in Unreimbursed Amounts pursuant to Section 2.2(c)). If
Bank of America resigns as Swingline Lender, it shall retain all the
rights of the Swingline Lender provided for hereunder with respect to
Swingline Loans made by it and outstanding as of the effective date of
such resignation, including the right to require the Lenders to make
Base Rate Loans or fund risk participations in outstanding Swingline
Loans pursuant to Section 2.3(c).
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11.4 NO WAIVER; CUMULATIVE REMEDIES.
No failure by any Lender, the Issuing Lender or the Administrative
Agent to exercise, and no delay by any such Person in exercising, any right,
remedy, power or privilege hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right, remedy, power or privilege
hereunder preclude any other or further exercise thereof or the exercise of any
other right, remedy, power or privilege. The rights, remedies, powers and
privileges herein provided are cumulative and not exclusive of any rights,
remedies, powers and privileges provided by law.
11.5 TREATMENT OF CERTAIN INFORMATION; CONFIDENTIALITY.
Each of the Administrative Agent, the Collateral Agent, the Lenders and
the Issuing Lender agrees to maintain the confidentiality of the Information (as
defined below), except that Information may be disclosed (a) to its Affiliates
and to its and its Affiliates' respective partners, directors, officers,
employees, agents, advisors and representatives (it being understood that the
Persons to whom such disclosure is made will be informed of the confidential
nature of such Information and instructed to keep such Information
confidential), (b) to the extent requested by any regulatory authority
purporting to have jurisdiction over it (including any self-regulatory
authority, such as the National Association of Insurance Commissioners), (c) to
the extent required by applicable laws or regulations or by any subpoena or
similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies hereunder or under any other Credit Document or any
action or proceeding relating to this Credit Agreement or any other Credit
Document or the enforcement of rights hereunder or thereunder, (f) subject to an
agreement containing provisions substantially the same as those of this Section,
to (i) any assignee of or Participant in, or any prospective assignee of or
Participant in, any of its rights or obligations under this Credit Agreement or
(ii) any actual or prospective counterparty (or its advisors) to any swap or
derivative transaction relating to the Borrowers and their obligations, (g) with
the consent of the Parent or (h) to the extent such Information (x) becomes
publicly available other than as a result of a breach of this Section or (y)
becomes available to the Administrative Agent, the Collateral Agent, any Lender,
the Issuing Lender or any of their respective Affiliates on a nonconfidential
basis from a source other than the Borrower.
For purposes of this Section, "Information" means all information received from
the Borrowers or any Subsidiary relating to the Borrowers or any Subsidiary or
any of their respective businesses, other than any such information that is
available to the Administrative Agent, the Collateral Agent, any Lender or the
Issuing Lender on a nonconfidential basis prior to disclosure by the Borrower or
any Subsidiary, provided that, in the case of information received from the
Borrower or any Subsidiary after the date hereof, such information is clearly
identified at the time of delivery as confidential. Any Person required to
maintain the confidentiality of Information as provided in this Section shall be
considered to have complied with its obligation to do so if such Person has
exercised the same degree of care to maintain the confidentiality of such
Information as such Person would accord to its own confidential information.
11.6 EXPENSES; INDEMNITY; DAMAGES WAIVER.
(a) Costs and Expenses. The Borrower shall pay (i) all
reasonable out-of-pocket expenses incurred by the Administrative Agent,
the Collateral Agent and their Affiliates (including the reasonable
fees, charges and disbursements of counsel for the Administrative Agent
and the Collateral Agent), in connection with the syndication of the
credit facilities provided for herein, the preparation, negotiation,
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execution, delivery and administration of this Credit Agreement and the
other Credit Documents or any amendments, modifications or waivers of
the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all
reasonable out-of-pocket expenses incurred by the Issuing Lender in
connection with the issuance, amendment, renewal or extension of any
Letter of Credit or any demand for payment thereunder and (iii) all
out-of-pocket expenses incurred by the Administrative Agent and the
Collateral Agent, any Lender or the Issuing Lender (including the fees,
charges and disbursements of any counsel for the Administrative Agent,
any Lender or the Issuing Lender), in connection with the enforcement
or protection of its rights (A) in connection with this Credit
Agreement and the other Credit Documents, including its rights under
this Section, or (B) in connection with the Loans made or Letters of
Credit issued hereunder, including all such out-of-pocket expenses
incurred during any workout, restructuring or negotiations in respect
of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall
indemnify the Administrative Agent (and any sub-agent thereof), the
Collateral Agent, each Lender and the Issuing Lender, and each Related
Party of any of the foregoing Persons (each such Person being called an
"Indemnitee") against, and hold each Indemnitee harmless from, any and
all losses, claims, damages, liabilities and related expenses
(including the fees, charges and disbursements of any counsel for any
Indemnitee), incurred by any Indemnitee or asserted against any
Indemnitee by any third party or by a Borrower or any other Credit
Party arising out of, in connection with, or as a result of (i) the
execution or delivery of this Credit Agreement, any other Credit
Document or any agreement or instrument contemplated hereby or thereby,
the performance by the parties hereto of their respective obligations
hereunder or thereunder or the consummation of the transactions
contemplated hereby or thereby, (ii) any Loan or Letter of Credit or
the use or proposed use of the proceeds therefrom (including any
refusal by the Issuing Lender to honor a demand for payment under a
Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit),
(iii) any actual or alleged presence or release of Hazardous Materials
on or from any property owned or operated by a Borrower or any of its
Subsidiaries, or any Environmental Liability related in any way to a
Borrower or any of its Subsidiaries, or (iv) any actual or prospective
claim, litigation, investigation or proceeding relating to any of the
foregoing, whether based on contract, tort or any other theory, whether
brought by a third party or by the Borrowers or any other Credit Party,
and regardless of whether any Indemnitee is a party thereto, in all
cases, whether or not caused by or arising, in whole or in part, out of
the comparative, contributory or sole negligence of the Indemnitee;
provided that such indemnity shall not, as to any Indemnitee, be
available to the extent that such losses, claims, damages, liabilities
or related expenses (x) are determined by a court of competent
jurisdiction by final and nonappealable judgment to have resulted from
the gross negligence or willful misconduct of such Indemnitee or (y)
result from a claim brought by a Borrower or any other Credit Party
against an Indemnitee for breach in bad faith of such Indemnitee's
obligations hereunder or under any other Credit Document, if such
Borrower or such Credit Party has obtained a final and nonappealable
judgment in its favor on such claim as determined by a court of
competent jurisdiction.
(c) Reimbursement by Lenders. To the extent that the Borrowers
for any reason fail to indefeasibly pay any amount required under
subsection (a) or (b) of this Section to be paid by it to the
Administrative Agent (or any sub-agent thereof), the Collateral Agent,
the Issuing Lender or any Related Party of any of the foregoing, each
Lender severally agrees to pay to the Administrative Agent (or any such
sub-agent), the Issuing Lender or such Related Party, as the case may
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be, such Lender's Applicable Percentage (determined as of the time that
the applicable unreimbursed expense or indemnity payment is sought) of
such unpaid amount, provided that the unreimbursed expense or
indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative
Agent (or any such sub-agent) or the Issuing Lender in its capacity as
such, or against any Related Party of any of the foregoing acting for
the Administrative Agent (or any such sub-agent) or Issuing Lender in
connection with such capacity. The obligations of the Lenders under
this subsection (c) are subject to the provisions of Section 3.2(d).
(d) Waiver of Consequential Damages, Etc. To the fullest
extent permitted by applicable law, the Borrowers shall not assert, and
hereby waive, any claim against any Indemnitee, on any theory of
liability, for special, indirect, consequential or punitive damages (as
opposed to direct or actual damages) arising out of, in connection
with, or as a result of, this Credit Agreement, any other Credit
Document or any agreement or instrument contemplated hereby, the
transactions contemplated hereby or thereby, any Loan or Letter of
Credit or the use of the proceeds thereof. No Indemnitee referred to in
subsection (b) above shall be liable for any damages arising from the
use by unintended recipients of any information or other materials
distributed by it through telecommunications, electronic or other
information transmission systems in connection with this Credit
Agreement or the other Credit Documents or the transactions
contemplated hereby or thereby.
(e) Payments. All amounts due under this Section shall be
payable not later than ten Business Days after demand therefor.
(f) Survival. The agreements in this Section shall survive the
resignation of the Administrative Agent, the Collateral Agent and the
Issuing Lender, the replacement of any Lender, the termination of the
Commitments and the repayment, satisfaction or discharge of all the
other Credit Party Obligations.
11.7 AMENDMENTS, WAIVERS AND CONSENTS.
No amendment or waiver of any provision of this Credit Agreement or any
other Credit Document, and no consent to any departure by any Borrower or any
other Credit Party therefrom, shall be effective unless in writing signed by the
Required Lenders, the Parent and the applicable Credit Party, as the case may
be, and acknowledged by the Administrative Agent, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no such amendment, waiver or
consent shall:
(a) extend or increase the Commitment of any Lender (or
reinstate any Commitment terminated pursuant to Section 9.2) without
the written consent of such Lender (it being understood and agreed that
a waiver of any condition precedent set forth in Section 5.2 or of any
Default or Event of Default or a mandatory reduction in Commitments is
not considered an extension or increase in Commitments of any Lender);
(b) postpone any date fixed by this Credit Agreement or any
other Credit Document for any payment of principal, interest, fees or
other amounts due to the Lenders (or any of them) hereunder or under
any other Credit Document without the written consent of each Lender
directly affected thereby;
(c) reduce the principal of, or the rate of interest specified
herein on, any Revolving Loan or L/C Borrowing, or any fees or other
amounts payable hereunder or under any other Credit Document without
the written consent of each Lender directly affected thereby; provided,
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however, that only the consent of the Required Lenders shall be
necessary to amend the definition of "Default Rate" or to waive any
obligation of any Borrower to pay interest at the Default Rate;
(d) change Section 3.2 or Section 9.3 in a manner that would
alter the pro rata sharing of payments or the order of application of
payments required thereby without the written consent of each Lender
directly affected thereby;
(e) change any provision of this Section 11.7 or the
definition of "Required Lenders" or any other provision hereof
specifying the number or percentage of Lenders required to amend, waive
or otherwise modify any rights hereunder or make any determination or
grant any consent hereunder without the written consent of each Lender
directly affected thereby;
(f) (i) release any Borrower or, except in connection with a
merger or consolidation permitted under Section 8.4 or a Disposition
permitted under Section 8.5, all or substantially all of the
Guarantors, from its or their obligations under the Credit Documents
without the written consent of each Lender directly affected thereby;
or (ii) except in connection with a Disposition permitted under Section
8.5, release all or substantially all of the Collateral without the
written consent of each Lender directly affected thereby;
and, provided further, that (i) no amendment, waiver or consent shall,
unless in writing and signed by the applicable Issuing Lender in addition to the
Lenders required above, affect the rights or duties of such Issuing Lender under
this Credit Agreement or any Letter of Credit Application relating to any Letter
of Credit issued or to be issued by it; (ii) no amendment, waiver or consent
shall, unless in writing and signed by the Administrative Agent in addition to
the Lenders required above, affect the rights or duties of the Administrative
Agent under this Credit Agreement or any other Credit Document; (iii) no
amendment, waiver or consent shall, unless in writing and signed by the
Collateral Agent in addition to the Lenders required above, affect the rights or
duties of the Collateral Agent under this Credit Agreement or any other Credit
Document; and (iv) the Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto.
Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder,
except that the Commitment of such Lender may not be increased or extended
without the consent of such Lender.
Notwithstanding the fact that the consent of all the Lenders is required in
certain circumstances as set forth above, (A) each Lender is entitled to vote as
such Lender sees fit on any reorganization plan that affects the Loans or the
Letters of Credit, and each Lender acknowledges that the provisions of Section
1126(c) of the Bankruptcy Code supersede the unanimous consent provisions set
forth herein and (B) the Required Lenders may consent to allow a Credit Party to
use cash collateral in the context of a bankruptcy or insolvency proceeding.
11.8 COUNTERPARTS/TELECOPY.
This Credit Agreement may be executed in any number of counterparts,
each of which where so executed and delivered shall be an original, but all of
which shall constitute one and the same instrument. Delivery of executed
counterparts by telecopy shall be as effective as an original and shall
constitute a representation that an original will be delivered.
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11.9 HEADINGS.
The headings of the sections and subsections hereof are provided for
convenience only and shall not in any way affect the meaning or construction of
any provision of this Credit Agreement.
11.10 DEFAULTING LENDER.
Each Lender understands and agrees that if such Lender is a Defaulting
Lender than notwithstanding the provisions of Section 11.7 it shall not be
entitled to vote on any matter requiring the consent of the Required Lenders or
to object to any matter requiring the consent of all the Lenders; provided,
however, that all other benefits and obligations under the Credit Documents
shall apply to such Defaulting Lender.
11.11 SURVIVAL OF INDEMNIFICATION AND REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any other
Credit Document or other document delivered pursuant hereto or thereto or in
connection herewith or therewith shall survive the execution and delivery hereof
and thereof. Such representations and warranties have been or will be relied
upon by the Administrative Agent, the Collateral Agent and each Lender,
regardless of any investigation made by the Administrative Agent, the Collateral
Agent or any Lender or on their behalf and notwithstanding that the
Administrative Agent, the Collateral Agent or any Lender may have had notice or
knowledge of any Default at the time of any issuance of Loans or extension of
any Letter of Credit, and shall continue in full force and effect as long as any
Loan or any other Credit Party Obligation hereunder shall remain unpaid or
unsatisfied or any Letter of Credit shall remain outstanding.
11.12 GOVERNING LAW; JURISDICTION.
(a) THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER
SHALL BE GOVERNED BY AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH
THE LAWS OF THE STATE OF SOUTH CAROLINA. Any legal action or proceeding
with respect to this Credit Agreement or any other Credit Document may
be brought in the courts of the State of South Carolina or of the
United States for the District of South Carolina, and, by execution and
delivery of this Credit Agreement, each Credit Party hereby irrevocably
accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of such courts. Each Credit Party
further irrevocably consents to the service of process out of any of
the aforementioned courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage
prepaid, to it at the address for notices pursuant to Section 11.1,
such service to become effective 10 days after such mailing. Nothing
herein shall affect the right of a Lender to serve process in any other
manner permitted by law or to commence legal proceedings or to
otherwise proceed against a Credit Party in any other jurisdiction.
Each Credit Party agrees that a final judgment in any action or
proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided
by law; provided that nothing in this Section 11.12(a) is intended to
impair a Credit Party's right under applicable law to appeal or seek a
stay of any judgment.
(b) Each Credit Party hereby irrevocably waives any objection
which it may now or hereafter have to the laying of venue of any of the
aforesaid actions or proceedings arising out of or in connection with
this Credit Agreement or any other Credit Document brought in the
courts referred to in subsection (a) hereof and hereby further
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irrevocably waives and agrees not to plead or claim in any such court
that any such action or proceeding brought in any such court has been
brought in an inconvenient forum.
11.13 WAIVER OF JURY TRIAL; WAIVER OF CONSEQUENTIAL DAMAGES.
EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO THE FULLEST EXTENT
PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
CREDIT AGREEMENT OR ANY OTHER CREDIT DOCUMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY). EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND
(B) ACKNOWLEDGES THAT IT AND THE OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER
INTO THIS CREDIT AGREEMENT AND THE OTHER CREDIT DOCUMENTS BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
11.14 PAYMENTS SET ASIDE.
To the extent that any payment by or on behalf of the Borrowers is made
to the Administrative Agent, the Issuing Lender or any Lender, or the
Administrative Agent, the Issuing Lender or any Lender exercises its right of
setoff, and such payment or the proceeds of such setoff or any part thereof is
subsequently invalidated, declared to be fraudulent or preferential, set aside
or required (including pursuant to any settlement entered into by the
Administrative Agent, the Issuing Lender or such Lender in its discretion) to be
repaid to a trustee, receiver or any other party, in connection with any
proceeding under any Debtor Relief Law or otherwise, then (a) to the extent of
such recovery, the obligation or part thereof originally intended to be
satisfied shall be revived and continued in full force and effect as if such
payment had not been made or such setoff had not occurred, and (b) each Lender
and the Issuing Lender severally agrees to pay to the Administrative Agent upon
demand its applicable share (without duplication) of any amount so recovered
from or repaid by the Administrative Agent, plus interest thereon from the date
of such demand to the date such payment is made at a rate per annum equal to the
Federal Funds Rate from time to time in effect. The obligations of the Lenders
and the Issuing Lender under clause (b) of the preceding sentence shall survive
the payment in full of the Credit Party Obligations and the termination of this
Credit Agreement.
11.15 SEVERABILITY.
If any provision of any of the Credit Documents is determined to be
illegal, invalid or unenforceable, such provision shall be fully severable and
the remaining provisions shall remain in full force and effect and shall be
construed without giving effect to the illegal, invalid or unenforceable
provisions.
11.16 FURTHER ASSURANCES.
The Credit Parties agree, upon the request of an Agent, to promptly
take such actions, as reasonably requested, as is necessary to carry out the
intent of this Credit Agreement and the other Credit Documents, including, but
not limited to, such actions as are necessary to ensure that the Collateral
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Agent, for the benefit of the Secured Parties, has a perfected security interest
in the Collateral subject to no Liens other than Permitted Liens.
11.17 ENTIRETY.
This Credit Agreement together with the other Credit Documents and the
Fee Letter represent the entire agreement of the parties hereto and thereto, and
supersede all prior agreements and understandings, oral or written, if any,
including any commitment letters or correspondence relating to the Credit
Documents or the transactions contemplated herein and therein.
11.18 BINDING EFFECT; CONTINUING AGREEMENT.
(a) This Credit Agreement shall become effective at such time
when all of the conditions set forth in Section 5.1 have been satisfied
or waived by the Administrative Agent (with the consent of the Required
Lenders) and the Administrative Agent shall have received copies hereof
(telefaxed or otherwise) which, when taken together, bear the
signatures of the Borrowers, the Guarantors and the Lenders, and
thereafter this Credit Agreement shall be binding upon and inure to the
benefit of the Borrowers, the Guarantors, the Agents and each Lender
and their respective successors and assigns.
(b) This Credit Agreement shall be a continuing agreement and
shall remain in full force and effect until all Loans, L/C Obligations,
interest, fees and other Credit Party Obligations (other than any
obligations which by the terms thereof are stated to survive the
termination of the Credit Documents) have been paid in full and all
Commitments and Letters of Credit have been terminated. Upon
termination, the Credit Parties shall have no further obligations
(other than the indemnification provisions that survive) under the
Credit Documents and the Collateral Agent shall, at the request and
expense of the Parent, deliver all Collateral in its possession to the
Parent and release all Liens on Collateral; provided that should any
payment, in whole or in part, of the Credit Party Obligations be
rescinded or otherwise required to be restored or returned by an Agent
or any Lender, whether as a result of any proceedings in bankruptcy or
reorganization or otherwise, then the Credit Documents shall
automatically be reinstated and all Liens of the Lenders shall reattach
to the Collateral and all amounts required to be restored or returned
and all costs and expenses incurred by an Agent or Lender in connection
therewith shall be deemed included as part of the Credit Party
Obligations.
11.19 USA PATRIOT ACT NOTICE.
Each Lender that is subject to the Act (as hereinafter defined) and the
Administrative Agent (for itself and not on behalf of any Lender) hereby
notifies the Borrowers that pursuant to the requirements of the USA Patriot Act
(Title III of Pub. L. 107-56 (signed into law October 26, 2001)) (the "Act"), it
is required to obtain, verify and record information that identifies each
Borrower, which information includes the name and address of the Borrowers and
other information that will allow such Lender or the Administrative Agent, as
applicable, to identify each Borrower in accordance with the Act.
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Each of the parties hereto has caused a counterpart of this Credit
Agreement to be duly executed and delivered as of the date first above written.
BORROWERS: RYAN'S RESTAURANT GROUP, INC.,
- ---------
a South Carolina corporation
By: /s/ Fred T. Grant, Jr.
-----------------------------------------
Name: Fred T. Grant, Jr.
Title: Senior Vice President - Finance
FIRE MOUNTAIN RESTAURANTS, INC.,
a Delaware corporation
By: /s/ Fred T. Grant, Jr.
-----------------------------------------
Name: Fred T. Grant, Jr.
Title: Treasurer
GUARANTORS: BIG R PROCUREMENT COMPANY, LLC,
- ----------
a Delaware limited liability company
By: RYAN'S RESTAURANT GROUP, INC.
a South Carolina corporation,
its sole manager
By: /s/ Fred T. Grant, Jr.
--------------------------------------
Name: Fred T. Grant, Jr.
Title: Senior Vice President - Finance
RYAN'S PROPERTIES, INC.,
a Delaware corporation
By: /s/ Fred T. Grant, Jr.
-----------------------------------------
Name: Fred T. Grant, Jr.
Title: Treasurer
RYMARK HOLDINGS, INC.,
a Delaware corporation
By: /s/ Fred T. Grant, Jr.
-----------------------------------------
Name: Fred T. Grant, Jr.
Title: Treasurer
FIRE MOUNTAIN PROPERTIES, LLC,
a Delaware limited liability company
By: FIRE MOUNTAIN RESTAURANTS, INC.,
a Delaware corporation, its sole manager
By: /s/ Fred T. Grant, Jr.
-------------------------------------
Name: Fred T. Grant, Jr.
Title: Treasurer
ADMINISTRATIVE AGENT: BANK OF AMERICA, N.A.,
- --------------------- in its capacity as Administrative Agent and
Collateral Agent
By: /s/ John W. Pocalyko
-----------------------------------------
Name: John W. Pocalyko
Title: Managing Director
LENDERS: BANK OF AMERICA, N.A.,
- ------- in its capacity as a Lender
By: /s/ John W. Pocalyko
-----------------------------------------
Name: John W. Pocalyko
Title: Managing Director
WACHOVIA BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Stephen C. Koelsch
-----------------------------------------
By: Stephen C. Koelsch
Title: Vice President
REGIONS FINANCIAL CORPORATION,
as a Lender
By: /s/ Elaine B. Passman
-----------------------------------------
By: Elaine B. Passman
Title: Assistant Vice President
Corporate Banking
SUNTRUST BANK,
as a Lender
By: /s/ Susan M. Hall
------------------------------------------
By: Susan M. Hall
Title: Managing Director
US BANK, NATIONAL ASSOCIATION,
as a Lender
By: /s/ Russell S. Rogers
------------------------------------------
By: Russell S. Rogers
Title: Vice President
BRANCH BANKING AND TRUST CO. OF SOUTH
CAROLINA,
as a Lender
By: /s/ Troy R. Weaver
------------------------------------------
By: Troy R. Weaver
Title: Vice President
CAROLINA FIRST BANK,
as a Lender
By: /s/ Charles D. Chamberlain
-----------------------------------------
By: Charles D. Chamberlain
Title: Executive Vice President
FIRST TENNESSEE BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ John C. Fox
------------------------------------------
By: John C. Fox
Title: Executive Vice President
FIFTH THIRD BANK,
as a Lender
By: /s/ Brad Noel
------------------------------------------
By: Brad Noel
Title: AVP
HIBERNIA NATIONAL BANK,
as a Lender
By: /s/ Donna J. Richardson
------------------------------------------
By: Donna J. Richardson
Title: Assistant Vice President