REVOLVING CREDIT AGREEMENT
dated as of October 11, 2000
among
RUBY TUESDAY, INC.
as Borrower
THE LENDERS FROM TIME TO TIME PARTY HERETO
and
SUNTRUST BANK
as Administrative Agent, Issuing Bank and
Swingline Lender
====================================================================
SUNTRUST EQUITABLE SECURITIES CORPORATION
as Lead Arranger and Book Manager
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS; CONSTRUCTION..........................................1
Section 1.1 Definitions...........................................1
Section 1.2 Classifications of Loans and Borrowings..............25
Section 1.3 Accounting Terms and Determination...................25
Section 1.4 Terms Generally......................................26
ARTICLE II AMOUNT AND TERMS OF THE COMMITMENTS..............................27
Section 2.1 General Description of Facilities....................27
Section 2.2 Revolving Loans......................................27
Section 2.3 Procedure for Revolving Borrowings...................27
Section 2.4 Increase of Aggregate Revolving Commitment Amount....28
Section 2.5 Swingline Commitment.................................29
Section 2.6 Procedure for Swingline Borrowing; Etc...............29
Section 2.7 Funding of Borrowings................................31
Section 2.8 Interest Elections...................................32
Section 2.9 Optional Reduction and Termination of Commitments....33
Section 2.10 Repayment of Loans...................................34
Section 2.10 Evidence of Indebtedness.............................34
Section 2.11 Optional Prepayments.................................35
Section 2.12 Interest on Loans....................................36
Section 2.13 Fees.................................................37
Section 2.14 Computation of Interest and Fees.....................38
Section 2.15 Inability to Determine Interest Rates................38
Section 2.16 Illegality...........................................39
Section 2.17 Increased Costs......................................39
Section 2.18 Funding Indemnity....................................41
Section 2.19 Taxes................................................42
Section 2.20 Payments Generally; Pro Rata Treatment; Sharing of
Set-offs..........................44
Section 2.21 Mitigation of Obligations; Replacement of Lenders....46
Section 2.22 Letters of Credit....................................47
ARTICLE III CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT.............54
Section 3.1 Conditions To Effectiveness..........................54
Section 3.2 Each Credit Event....................................56
Section 3.3 Delivery of Documents................................57
ARTICLE IV REPRESENTATIONS AND WARRANTIES...................................57
Section 4.1 Existence; Power.....................................57
Section 4.2 Organizational Power; Authorization..................57
Section 4.3 Governmental Approvals; No Conflicts.................58
Section 4.4 Financial Statements.................................58
Section 4.5 Litigation and Environmental Matters.................58
Section 4.6 Compliance with Laws and Agreements..................59
Section 4.7 Investment Company Act, Etc..........................59
Section 4.8 Taxes................................................59
Section 4.9 Margin Regulations...................................60
Section 4.10 ERISA................................................60
Section 4.11 Ownership of Property................................60
Section 4.12 Disclosure...........................................61
Section 4.13 Labor Relations......................................61
Section 4.14 Subsidiaries.........................................61
ARTICLE V AFFIRMATIVE COVENANTS.............................................62
Section 5.1 Financial Statements and Other Information...........62
Section 5.2 Notices of Material Events...........................64
Section 5.3 Existence; Conduct of Business.......................64
Section 5.4 Compliance with Laws, Etc............................65
Section 5.5 Payment of Obligations...............................65
Section 5.6 Books and Records....................................65
Section 5.7 Visitation, Inspection, Etc..........................65
Section 5.8 Maintenance of Properties; Insurance.................66
Section 5.9 Use of Proceeds and Letters of Credit................66
Section 5.10 Additional Subsidiaries..............................66
Section 5.11 Additional Guaranties................................67
ARTICLE VI FINANCIAL COVENANTS..............................................67
Section 6.1 Minimum Fixed Charge Coverage Ratio..................67
Section 6.2 Maximum Adjusted Total Debt to EBITDAR Ratio.........67
Section 6.3 Maximum Adjusted Total Debt to Adjusted Total
Capitalization Ratio...................67
ARTICLE VII NEGATIVE COVENANTS..............................................68
Section 7.1 Indebtedness.........................................68
Section 7.2 Negative Pledge......................................69
Section 7.3 Fundamental Changes..................................70
Section 7.4 Investments, Loans, Etc..............................71
Section 7.5 Restricted Payments..................................72
Section 7.6 Sale of Assets.......................................73
Section 7.7 Transactions with Affiliates.........................74
Section 7.8 Restrictive Agreements...............................74
Section 7.9 Sale and Leaseback Transactions......................74
Section 7.10 Hedging Agreements...................................75
Section 7.11 Amendment to Material Documents......................75
Section 7.12 Accounting Changes...................................75
Section 7.13 ERISA................................................76
ARTICLE VIII EVENTS OF DEFAULT..............................................76
Section 8.1 Events of Default....................................76
ARTICLE IX THE ADMINISTRATIVE AGENT.........................................79
Section 9.1 Appointment of Administrative Agent..................79
Section 9.2 Nature of Duties of Administrative Agent.............80
Section 9.3 Lack of Reliance on the Administrative Agent.........81
Section 9.4 Certain Rights of the Administrative Agent...........81
Section 9.5 Reliance by Administrative Agent.....................82
Section 9.6 The Administrative Agent in its Individual Capacity..82
Section 9.7 Successor Administrative Agent.......................82
Section 9.8 Authorization to Execute other Loan Documents........83
ARTICLE X MISCELLANEOUS 83
Section 10.1 Notices..............................................83
Section 10.2 Waiver; Amendments...................................85
Section 10.3 Expenses; Indemnification............................86
Section 10.4 Successors and Assigns...............................88
Section 10.5 Governing Law; Jurisdiction; Consent to Service of
Process...........................92
Section 10.6 WAIVER OF JURY TRIAL.................................93
Section 10.7 Right of Setoff......................................93
Section 10.8 Counterparts; Integration............................94
Section 10.9 Survival.............................................94
Section 10.10 Severability.........................................94
Section 10.11 Confidentiality......................................95
Section 10.12 Interest Rate Limitation.............................95
Schedules
Schedule 1.1 .........-........Applicable Margin and Applicable Commitment
Fee Percentage
Schedule 4.14 .........-........Subsidiaries
Schedule 7.1 .........-........Outstanding Indebtedness
Schedule 7.2 .........-........Existing Liens
Schedule 7.4 .........-........Existing Investments
Exhibits
Exhibit A .........- .......Revolving Credit Note
Exhibit B .........-........Swingline Note
Exhibit C .........- .......Form of Assignment and Acceptance
Exhibit D .........-........Form of Subsidiary Guaranty Agreement
Exhibit E .........- .......Form of Indemnity, Subrogation and
Contribution Agreement
Exhibit 2.3 .........-........Notice of Revolving Borrowing
Exhibit 2.5 .........-........Notice of Swingline Borrowing
Exhibit 2.7 .........-........Form of Continuation/Conversion
Exhibit 3.1(b)(iv).........-........Form of Secretary's Certificate of Ruby
Tuesday, Inc.
Exhibit 3.1(b)(vii)........-........Form of Officer's Certificate
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REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT AGREEMENT (this "Agreement") is made and entered into
as of October 11, 2000, by and among RUBY TUESDAY, INC., a Georgia corporation
(the "Borrower"), the several banks and other financial institutions from time
to time party hereto (the "Lenders"), and SUNTRUST BANK, in its capacity as
Administrative Agent for the Lenders (the "Administrative Agent"), as Issuing
Bank (the "Issuing Bank"), and as Swingline Lender (the "Swingline Lender").
W I T N E S S E T H:
WHEREAS, the Borrower has requested (a) that the Lenders establish a
$87,500,000 revolving credit facility, (b) that the Issuing Bank establish a
$10,000,000 swingline subcommitment, and (c) that the Swingline Lender establish
a $15,000,000 letter of credit subcommitment;
WHEREAS, subject to the terms and conditions of this Agreement, the Lenders
severally, to the extent of their respective Commitments as defined herein, are
willing to severally establish the requested revolving credit facility, the
swingline commitment and the letter of credit commitment for the benefit of the
Borrower;
NOW, THEREFORE, in consideration of the premises and the mutual covenants
herein contained, the Borrower, the Lenders, the Administrative Agent, the
Issuing Bank and the Swingline Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1 Definitions. In addition to the other terms
defined herein, the following terms used herein shall have the meanings herein
specified (to be equally applicable to both the singular and plural forms of the
terms defined):
"Adjusted LIBO Rate" shall mean, with respect to each Interest
Period for a Eurodollar Borrowing, the rate per annum obtained by dividing (i)
LIBOR for such Interest Period by (ii) a percentage equal to 1.00 minus the
Eurodollar Reserve Percentage.
"Adjusted Total Capital" shall mean, as of any date of
determination, the sum of (i) Adjusted Total Debt as of such date and (ii)
Consolidated Net Worth as of such date.
"Adjusted Total Debt" shall mean, as of any date of
determination, (i) all Indebtedness of the Borrower and its Subsidiaries on a
consolidated basis, including without limitation all Loans and LC Exposure, but
excluding all `Indebtedness of the type described in subsection (xi) of the
definition of Indebtedness and excluding any Synthetic Lease Obligations to the
extent that such Synthetic Lease Obligations are included in clause (ii) below,
plus (ii) to the extent not included in clause (i), the present value of all
lease obligations arising under operating leases of Borrower and its
Subsidiaries as determined in accordance with GAAP, applying a discount rate of
ten percent (10%).
"Adjusted Total Debt to Adjusted Total Capital Ratio" shall
mean, as of any date of determination, the ratio of (i) Adjusted Total Debt as
of such date to (ii) Adjusted Total Capital as of such date.
"Adjusted Total Debt to EBITDAR Ratio" shall mean, as of any
date of determination, the ratio of (i) Adjusted Total Debt as of such date to
(ii) Consolidated EBITDAR as of such date, measured for the four Fiscal Quarter
period ending on such date.
"Administrative Agent" shall have the meaning assigned to
such term in the opening paragraph hereof.
"Administrative Questionnaire" shall mean, with respect to
each Lender, an administrative questionnaire in the form prepared by the
Administrative Agent and submitted to the Administrative Agent duly completed by
such Lender.
"Affiliate" shall mean, as to any Person, any other Person
that directly, or indirectly through one or more intermediaries, Controls, is
Controlled by, or is under common Control with, such Person.
"Aggregate Revolving Commitment Amount" shall mean the
aggregate principal amount of the Revolving Commitments of all Lenders from time
to time. On the Closing Date, the Aggregate Revolving Commitment Amount equals
$87,500,000.
"Aggregate Revolving Commitments" shall mean, collectively,
all Revolving Commitments of all Lenders at any time outstanding.
"American Cafe" shall mean "American Cafe", "Silverspoon" or
"Mozzarella's American Cafe", an operating concept of the Borrower.
"Applicable Commitment Fee Percentage" shall mean, as of any
date, the percentage per annum determined by reference to the applicable
Adjusted Total Debt to EBITDAR Ratio in effect on such date as set forth on
Schedule 1.1 attached hereto; provided, that a change in the Applicable
Commitment Fee Percentage resulting from a change in the Adjusted Total Debt to
EBITDAR Ratio shall be effective on the second Business Day after the date the
Borrower is required to deliver the financial statements required by Section
5.1(a) or (b) and the compliance certificate required by Section 5.1 (c);
provided, further, that if at any time the Borrower shall have failed to deliver
such financial statements and such certificate, the Applicable Percentage shall
be at Level V until such time as such financial statements and certificate are
delivered, at which time the Applicable Percentage shall be determined as
provided above. Notwithstanding the foregoing, the Applicable Commitment Fee
Percentage from the Closing Date until the first financial statement and
compliance certificate are required to be delivered shall be at Level IV.
"Applicable Lending Office" shall mean, for each Lender and
for each Type of Loan, the "Lending Office" of such Lender (or an Affiliate of
such Lender) designated for such Type of Loan in the Administrative
Questionnaire submitted by such Lender or such other office of such Lender (or
an Affiliate of such Lender) as such Lender may from time to time specify to the
Administrative Agent and the Borrower as the office by which its Loans of such
Type are to be made and maintained.
"Applicable Margin" shall mean, as of any date, the percentage
per annum determined by reference to the applicable Adjusted Total Debt to
EBITDAR Ratio in effect on such date as set forth on Schedule 1.1 attached
hereto; provided, that a change in the Applicable Margin resulting from a change
in such ratio shall be effective on the second Business Day after which the
Borrower is required to deliver the financial statements required by Section
5.1(a) or (b) and the compliance certificate required by Section 5.1(c);
provided, further, that if at any time the Borrower shall have failed to deliver
such financial statements and such certificate, the Applicable Margin shall be
at Level V until such time as such financial statements and certificate are
delivered, at which time the Applicable Margin shall be determined as provided
above. Notwithstanding the foregoing, the Applicable Margin from the Closing
Date until the first financial statement and compliance certificate are required
to be delivered shall be at Level IV.
"Approved Fund" means any Person (other than a natural Person)
that is (or will be) engaged in making, purchasing, holding or otherwise
investing in commercial loans and similar extensions of credit in the ordinary
course of its business and 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.
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee (with the consent of any
party whose consent is required by Section 10.4(b)) and accepted by the
Administrative Agent, in the form of Exhibit C attached hereto or any other form
approved by the Administrative Agent.
"Availability Period" shall mean the period from the Closing
Date to the Revolving Commitment Termination Date.
"Base Rate" shall mean the higher of (i) the rate which the
Administrative Agent announces from time to time as its prime lending rate, as
in effect from time to time, or (ii) the Federal Funds Rate, as in effect from
time to time, plus one-half of one percent (1/2%) per annum. The Administrative
Agent's prime lending rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged to any customer. The
Administrative Agent may make commercial loans or other loans at rates of
interest at, above, or below the Administrative Agent's prime lending rate. Each
change in the Administrative Agent's prime lending rate or the Federal Funds
Rate shall be effective from and including the date such change is publicly
announced as being effective and without notice to the Borrower.
"Borrower" shall have the meaning in the introductory
paragraph hereof.
"Borrowing" shall mean a borrowing consisting of (i) Loans of
the same Class and Type, made, converted or continued on the same date and in
case of Eurodollar Loans, as to which a single Interest Period is in effect, or
(ii) a Swingline Loan.
"Business Day" shall mean (i) any day other than a Saturday,
Sunday or other day on which commercial banks in Atlanta, Georgia are authorized
or required by law to close and (ii) if such day relates to a Borrowing of, a
payment or prepayment of principal or interest on, a conversion of or into, or
an Interest Period for, a Eurodollar Loan or a notice with respect to any of the
foregoing, any day on which dealings in Dollars are carried on in the London
interbank market.
"Capital Expenditures" shall mean for any period, without
duplication, (a) the additions to property, plant and equipment and other
capital expenditures of the Borrower and its Subsidiaries that are (or would be)
set forth on a consolidated statement of cash flows of the Borrower for such
period prepared in accordance with GAAP and (b) Capital Lease Obligations
incurred by the Borrower and its Subsidiaries during such period.
"Capital Lease Obligations" of any Person shall mean all
obligations of such Person to pay rent or other amounts under any lease (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and the amount of such obligations shall be the capitalized amount thereof
determined in accordance with GAAP.
"Change in Control" shall mean the occurrence of one or more
of the following events: (a) any sale, lease, exchange or other transfer (in a
single transaction or a series of related transactions) of all or substantially
all of the assets of the Borrower to any Person or "group" (within the meaning
of the Securities Exchange Act of 1934 and the rules of the Securities and
Exchange Commission thereunder in effect on the date hereof), (b) the
acquisition of ownership, directly or indirectly, beneficially or of record, by
any Person or "group" (within the meaning of the Securities Exchange Act of 1934
and the rules of the Securities and Exchange Commission thereunder as in effect
on the date hereof) of 30% or more of the outstanding shares of the voting stock
of the Borrower; or (c) occupation of a majority of the seats (other than vacant
seats) on the board of directors of the Borrower by Persons who were neither (i)
nominated by the current board of directors or (ii) appointed by directors so
nominated.
"Change in Law" shall mean (i) the adoption of any applicable
law, rule or regulation after the date of this Agreement, (ii) any change in any
applicable law, rule or regulation, or any change in the interpretation or
application thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by any Lender (or its Applicable Lending Office)
or the Issuing Bank (or for purposes of Section 2.20(b), by such Lender's or the
Issuing Bank's holding company, if applicable) with any request, guideline or
directive (whether or not having the force of law) of any Governmental Authority
made or issued after the date of this Agreement.
"Class", when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, are
Revolving Loans, Swingline Loans and when used in reference to any Commitment,
refers to whether such Commitment is a Revolving Commitment or a Swingline
Commitment.
"Closing Date" shall mean the date on which the conditions
precedent set forth in Section 3.1 and Section 3.2 have been satisfied or waived
in accordance with Section 10.2.
"Code" shall mean the Internal Revenue Code of 1986, as
amended and in effect from time to time.
"Commitment" shall mean a Revolving Commitment, a Swingline
Commitment or a LC Commitment or any combination thereof (as the context shall
permit or require).
"Consolidated Companies" shall mean, collectively, the
Borrower and any of its Subsidiaries, and "Consolidated Company" shall mean,
individually, the Borrower or any of its Subsidiaries.
"Consolidated EBITDA" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense determined on a consolidated basis in accordance with GAAP,
(iii) depreciation and amortization determined on a consolidated basis in
accordance with GAAP and (iv) all other non-cash charges determined on a
consolidated basis in accordance with GAAP, in each case for such period.
"Consolidated EBITDAR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated
EBITDA plus (b) Consolidated Lease Expense, in each case for such period.
"Consolidated EBITR" shall mean, for the Borrower and its
Subsidiaries for any period, an amount equal to the sum of (a) Consolidated Net
Income for such period plus (b) to the extent deducted in determining
Consolidated Net Income for such period, (i) Consolidated Interest Expense, (ii)
income tax expense determined on a consolidated basis in accordance with GAAP,
(iii) all other non-cash charges, determined on a consolidated basis in
accordance with GAAP, and (iv) Consolidated Lease Expense, in each case for such
period.
"Consolidated Fixed Charges" shall mean, for the Borrower and
its Subsidiaries for any period, the sum (without duplication) of (a)
Consolidated Interest Expense for such period and (d) Consolidated Lease Expense
for such period.
"Consolidated Interest Expense" shall mean, for the Borrower
and its Subsidiaries for any period determined on a consolidated basis in
accordance with GAAP, the sum of (i) total interest expense, including without
limitation the interest component of any payments in respect of Capital Leases
Obligations capitalized or expensed during such period (whether or not actually
paid during such period) plus (ii) the net amount payable (or minus the net
amount receivable) under Hedging Agreements during such period (whether or not
actually paid or received during such period).
"Consolidated Lease Expense" shall mean, for any period, the
aggregate amount of fixed and contingent rental and operating lease expense
payable by the Borrower and its Subsidiaries with respect to leases of real and
personal property (excluding Capital Lease Obligations) determined on a
consolidated basis in accordance with GAAP for such period.
"Consolidated Net Income" shall mean, for any period, the net
income (or loss) of the Borrower and its Subsidiaries for such period determined
on a consolidated basis in accordance with GAAP, but excluding therefrom (to the
extent otherwise included therein) (i) any extraordinary gains or losses, (ii)
any gains attributable to write-ups of assets, (iii) any equity interest of the
Borrower or any Subsidiary of the Borrower in the unremitted earnings of any
Person that is not a Subsidiary and (iv) any income (or loss) of any Person
accrued prior to the date it becomes a Subsidiary or is merged into or
consolidated with the Borrower or any Subsidiary on the date that such Person's
assets are acquired by the Borrower or any Subsidiary.
"Consolidated Net Worth" shall mean, as of any date, (i) the
total assets of the Borrower and its Subsidiaries that would be reflected on the
Borrower's consolidated balance sheet as of such date prepared in accordance
with GAAP, after eliminating all amounts properly attributable to minority
interests, if any, in the stock and surplus of Subsidiaries, minus the sum of
(i) the total liabilities of the Borrower and its Subsidiaries that would be
reflected on the Borrower's consolidated balance sheet as of such date prepared
in accordance with GAAP and (ii) the amount of any write-up in the book value of
any assets resulting from a revaluation thereof or any write-up in excess of the
cost of such assets acquired reflected on the consolidated balance sheet of the
Borrower as of such date prepared in accordance with GAAP.
"Contractual Obligation" of any Person shall mean any
provision of any security issued by such Person or of any agreement, instrument
or undertaking under which such Person is obligated or by which it or any of the
property in which it has an interest is bound.
"Control" shall mean the power, directly or indirectly, either
to (i) vote 5% or more of securities having ordinary voting power for the
election of directors (or persons performing similar functions) of a Person or
(ii) direct or cause the direction of the management and policies of a Person,
whether through the ability to exercise voting power, by contract or otherwise.
The terms "Controlling", "Controlled by", and "under common Control with" have
meanings correlative thereto.
"Default" shall mean any condition or event that, with the
giving of notice or the lapse of time or both, would constitute an Event of
Default.
"Default Interest" shall have the meaning set forth in Section
2.13(c).
"Dollar(s)" and the sign "$" shall mean lawful money of the
United States of America.
"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 the Administrative Agent, the Issuing Bank, and unless (x)
such Person is taking delivery of an assignment in connection with physical
settlement of a credit derivatives transaction or (y) an Event of Default has
occurred and is continuing, the Borrower (each such approval not to be
unreasonably withheld or delayed). If the consent of the Borrower to an
assignment or to an Eligible Assignee is required hereunder (including a consent
to an assignment which does not meet the minimum assignment thresholds specified
in paragraph (b)(i) of Section 10.4), the Borrower shall be deemed to have given
its consent five Business Days after the date notice thereof has actually been
delivered by the assigning Lender (through the Administrative Agent) to the
Borrower, unless such consent is expressly refused by the Borrower prior to such
fifth Business Day.
"Environmental Laws" shall mean all laws, rules, regulations,
codes, ordinances, orders, decrees, judgments, injunctions, notices or binding
agreements issued, promulgated or entered into by or with any Governmental
Authority, relating in any way to the environment, preservation or reclamation
of natural resources, the management, Release or threatened Release of any
Hazardous Material.
"Environmental Liability" shall mean any liability, contingent
or otherwise (including any liability for damages, costs of environmental
investigation and remediation, costs of administrative oversight, fines, natural
resource damages, penalties or indemnities), of the Borrower or any Subsidiary
directly or indirectly resulting from or based upon (a) any actual or alleged
violation of any Environmental Law, (b) the generation, use, handling,
transportation, storage, treatment or disposal of any Hazardous Materials, (c)
any actual or alleged exposure to any Hazardous Materials, (d) the Release or
threatened Release of any Hazardous Materials or (e) any contract, agreement or
other consensual arrangement pursuant to which liability is assumed or imposed
with respect to any of the foregoing.
"ERISA" shall mean the Employee Retirement Income Security Act
of 1974, as amended from time to time, and any successor statute.
"ERISA Affiliate" shall mean any trade or business (whether or
not incorporated), which, together with the Borrower, is treated as a single
employer under Section 414(b) or (c) of the Code or, solely for the purposes of
Section 302 of ERISA and Section 412 of the Code, is treated as a single
employer under Section 414 of the Code.
"ERISA Event" shall mean (a) any "reportable event", as
defined in Section 4043 of ERISA or the regulations issued thereunder with
respect to a Plan (other than an event for which the 30-day notice period is
waived); (b) the existence with respect to any Plan of an "accumulated funding
deficiency" (as defined in Section 412 of the Code or Section 302 of ERISA),
whether or not waived; (c) the filing pursuant to Section 412(d) of the Code or
Section 303(d) of ERISA of an application for a waiver of the minimum funding
standard with respect to any Plan; (d) the incurrence by the Borrower or any of
its ERISA Affiliates of any liability under Title IV of ERISA with respect to
the termination of any Plan; (e) the receipt by the Borrower or any ERISA
Affiliate from the PBGC or a plan administrator appointed by the PBGC of any
notice relating to an intention to terminate any Plan or Plans or to appoint a
trustee to administer any Plan; (f) the incurrence by the Borrower or any of its
ERISA Affiliates of any liability with respect to the withdrawal or partial
withdrawal from any Plan or Multiemployer Plan; or (g) the receipt by the
Borrower or any ERISA Affiliate of any notice, or the receipt by any
Multiemployer Plan from the Borrower or any ERISA Affiliate of any notice,
concerning the imposition of Withdrawal Liability or a determination that a
Multiemployer Plan is, or is expected to be, insolvent or in reorganization,
within the meaning of Title IV of ERISA.
"Eurodollar" when used in reference to any Loan or Borrowing,
refers to whether such Loan, or the Loans comprising such Borrowing, bears
interest at a rate determined by reference to the Adjusted LIBO Rate.
"Eurodollar Reserve Percentage" shall mean the aggregate of
the maximum reserve percentages (including, without limitation, any emergency,
supplemental, special or other marginal reserves) expressed as a decimal
(rounded upwards to the next 1/100th of 1%) in effect on any day to which the
Administrative Agent is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal Reserve System
(or any Governmental Authority succeeding to any of its principal functions)
with respect to eurocurrency funding (currently referred to as "eurocurrency
liabilities" under Regulation D). Eurodollar Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements without
benefit of or credit for proration, exemptions or offsets that may be available
from time to time to any Lender under Regulation D. The Eurodollar Reserve
Percentage shall be adjusted automatically on and as of the effective date of
any change in any reserve percentage.
"Event of Default" shall have the meaning provided in Article
VIII.
"Excluded Taxes" shall mean with respect to the Administrative
Agent, any Lender, the Issuing Bank or any other recipient of any payment to be
made by or on account of any obligation of the Borrower hereunder, (a) income or
franchise taxes imposed on (or measured by) its net income by the United States
of America, or by the jurisdiction 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 of America or any similar tax imposed
by any other jurisdiction in which any Lender is located and (c) in the case of
a Foreign Lender, any withholding tax that (i) is imposed on amounts payable to
such Foreign Lender at the time such Foreign Lender becomes a party to this
Agreement, (ii) is imposed on amounts payable to such Foreign Lender at any time
that such Foreign Lender designates a new lending office, other than taxes that
have accrued prior to the designation of such lending office that are otherwise
not Excluded Taxes, and (iii) is attributable to such Foreign Lender's failure
to comply with Section 2.21(e).
"Federal Funds Rate" shall mean, for any day, the rate per
annum (rounded upwards, if necessary, to the next 1/100th of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
member banks of the Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the next succeeding
Business Day or if such rate is not so published for any Business Day, the
Federal Funds Rate for such day shall be the average rounded upwards, if
necessary, to the next 1/100th of 1% of the quotations for such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by the Administrative Agent.
"Fee Letter" shall mean that certain fee letter, dated as of
August 3, 2000, executed by SunTrust Equitable Securities Corporation and
SunTrust Bank and accepted by Borrower.
"Fiscal Quarter" shall mean any fiscal quarter of the Borrower
or the Consolidated Companies, as applicable.
"Fixed Charge Coverage Ratio" shall mean, as of any date of
determination, the ratio of (a) Consolidated EBITR to (b) Consolidated Fixed
Charges, in each case measured for the four Fiscal Quarter period ending on such
date.
"Foreign Lender" shall mean any Lender that is not a United
States person under Section 7701(a)(3) of the Code.
"Foreign Subsidiary" shall mean any Subsidiary that is
organized under the laws of a jurisdiction other than one of the fifty states of
the United States or the District of Columbia.
"Franchise Partner Program" shall mean the optional financing
and business structuring program offered by the Borrower to a limited number of
qualified restaurant operators, such operators to be determined by the Borrower
in its sole discretion, which provided such restaurant operators a business
structure for organizing, owning and funding the establishment and operation of
restaurants doing business under operating concepts owned by the Borrower.
"GAAP" shall mean generally accepted accounting principles in
the United States applied on a consistent basis and subject to the terms of
Section 1.3.
"Governmental Authority" shall mean the government of the
United States of America, any other nation or any political subdivision thereof,
whether state or local, and any agency, authority, instrumentality, regulatory
body, court, central bank or other entity exercising executive, legislative,
judicial, taxing, regulatory or administrative powers or functions of or
pertaining to government.
"Guarantor" shall mean each Subsidiary Loan Party now or
hereafter a party to the Subsidiary Guaranty Agreement or any Subsidiary that
becomes a party to the Subsidiary Guaranty Agreement pursuant to Section 5.11,
and their respective successors and permitted assigns.
"Guaranty" of or by any Person (the "guarantor") shall mean
any obligation, contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of Guaranteeing any Indebtedness or other obligation of any
other Person (the "primary obligor ") in any manner, whether directly or
indirectly and including any obligation, direct or indirect, of the guarantor
(a) to purchase or pay (or advance or supply funds for the purchase or payment
of) such Indebtedness or other obligation or to purchase (or to advance or
supply funds for the purchase of) any security for the payment thereof, (b) to
purchase or lease property, securities or services for the purpose of assuring
the owner of such Indebtedness or other obligation of the payment thereof, (c)
to maintain working capital, equity capital or any other financial statement
condition or liquidity of the primary obligor so as to enable the primary
obligor to pay such Indebtedness or other obligation or (d) as an account party
in respect of any letter of credit or letter of guaranty issued in support of
such Indebtedness or obligation; provided, that the term "Guaranty" shall not
include endorsements for collection or deposits in the ordinary course of
business. The amount of any Guaranty shall be deemed to be an amount equal to
the stated or determinable amount of the primary obligation in respect of which
Guaranty is made or, if not so stated or determinable, the maximum reasonably
anticipated liability in respect thereof (assuming such Person is required to
perform thereunder) as determined by such Person in good faith. The term
"Guarantee" used as a verb has a corresponding meaning.
"Hazardous Materials" means all explosive or radioactive
substances or wastes and all hazardous or toxic substances, wastes or other
pollutants, including petroleum or petroleum distillates, asbestos or asbestos
containing materials, polychlorinated biphenyls, radon gas, infectious or
medical wastes and all other substances or wastes of any nature regulated
pursuant to any Environmental Law.
"Hedging Agreements" shall mean interest rate swap, cap or
collar agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts, commodity agreements and other
similar agreements or arrangements designed to protect against fluctuations in
interest rates, currency values or commodity values, in each case to which any
Borrower or any Subsidiary is a party.
"Hostile Acquisition" shall mean any Investment resulting in
control of a Person involving a tender offer or proxy contest that has not been
recommended or approved by the board of directors of the Person that is the
subject of the Investment prior to the first public announcement or disclosure
relating to such Investment.
"Indebtedness" of any Person shall mean, without duplication
(i) all obligations of such Person for borrowed money, (ii) all obligations of
such Person evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person in respect of the deferred purchase price
of property or services (other than trade payables incurred in the ordinary
course of business; provided, that for purposes of Section 8.1(f), trade
payables overdue by more than 120 days shall be included in this definition
except to the extent that any of such trade payables are being disputed in good
faith and by appropriate measures), (iv) all obligations of such Person under
any conditional sale or other title retention agreement(s) relating to property
acquired by such Person, (v) all Capital Lease Obligations of such Person, (vi)
all obligations, contingent or otherwise, of such Person in respect of letters
of credit, acceptances or similar extensions of credit, (vii) all Guarantees of
such Person of the type of Indebtedness described in clauses (i) through (vi)
above, (viii) all Indebtedness of a third party secured by any Lien on property
owned by such Person, whether or not such Indebtedness has been assumed by such
Person, (ix) all obligations of such Person, contingent or otherwise, to
purchase, redeem, retire or otherwise acquire for value any common stock of such
Person, (x) Off-Balance Sheet Liabilities and (xi) all obligations under Hedging
Agreements. The Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture in which such Person is a general partner or a
joint venturer, except to the extent that the terms of such Indebtedness provide
that such Person is not liable therefor.
"Indemnified Taxes" shall mean Taxes other than Excluded Taxes.
"Indemnity and Contribution Agreement" shall mean the
Indemnity, Subrogation and Contribution Agreement as amended, restated,
supplemented or otherwise modified from time to time substantially in the form
of Exhibit E, among the Borrower, the Subsidiary Loan Parties and the
Administrative Agent.
"Information Memorandum" shall mean the Confidential
Information Memorandum dated August 2000 relating to the Borrower and the
transactions contemplated by this Agreement and the other Loan Documents.
"Interest Period" shall mean (i) with respect to any
Eurodollar Borrowing, a period of one, two, three or six months, and (ii) with
respect to a Swingline Loan, a period of such duration not to exceed 10 days, as
the Borrower may request and the Swingline Lender may agree in accordance with
Section 2.6; provided, that:
(i) the initial Interest Period for such Borrowing shall commence on the
date of such Borrowing (including the date of any conversion from a
Borrowing of another Type), and each Interest Period occurring
thereafter in respect of such Borrowing shall commence on the day on
which the next preceding Interest Period expires;
(ii) if any Interest Period would otherwise end on a day other than a
Business Day, such Interest Period shall be extended to the next
succeeding Business Day, unless such Business Day falls in another
calendar month, in which case such Interest Period would end on the
next preceding Business Day;
(iii) any Interest Period which begins on the last Business Day of a calendar
month or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period shall end on
the last Business Day of the calendar month in which such Interest
Period ends ; and
(iv) no Interest Period may extend beyond the Revolving Commitment
Termination Date.
"Issuing Bank" shall mean SunTrust Bank or any other Lender,
each in its capacity as an issuer of Letters of Credit pursuant to Section 2.23.
"LC Commitment" shall mean that portion of the Aggregate
Revolving Commitment Amount that may be used by the Borrower for the issuance of
Letters of Credit in an aggregate face amount not to exceed $15,000,000.
"LC Disbursement" shall mean a payment made by the Issuing
Bank pursuant to a Letter of Credit.
"LC Documents" shall mean the Letters of Credit and all
applications, agreements and instruments relating to the Letters of Credit.
"LC Exposure" shall mean, at any time, the sum of (i) the
aggregate undrawn amount of all outstanding Letters of Credit at such time, plus
(ii) the aggregate amount of all LC Disbursements that have not been reimbursed
by or on behalf of the Borrower at such time. The LC Exposure of any Lender
shall be its Pro Rata Share of the total LC Exposure at such time.
"Lenders" shall have the meaning assigned to such term in the
opening paragraph of this Agreement and shall include, where appropriate, the
Swingline Lender.
"Letter of Credit" shall mean any letter of credit issued
pursuant to Section 2.23 by the Issuing Bank for the account of the Borrower
pursuant to the LC Commitment.
"LIBOR" shall mean, for any applicable Interest Period with
respect to any Eurodollar Loan, the British Bankers' Association Interest
Settlement Rate per annum for deposits in Dollars for a period equal to such
Interest Period appearing on the display designated as Page 3750 on the Dow
Jones Markets Service (or such other page on that service or such other service
designated by the British Banker's Association for the display of such
Association's Interest Settlement Rates for Dollar deposits) as of 11:00 a.m.
(London, England time) on the day that is two Business Days prior to the first
day of the Interest Period or if such Page 3750 is unavailable for any reason at
such time, the rate which appears on the Reuters Screen ISDA Page as of such
date and such time; provided, that if the Administrative Agent determines that
the relevant foregoing sources are unavailable for the relevant Interest Period,
LIBOR shall mean the rate of interest determined by the Administrative Agent to
be the average (rounded upward, if necessary, to the nearest 1/100th of 1%) of
the rates per annum at which deposits in Dollars are offered to the
Administrative Agent two (2) Business Days preceding the first day of such
Interest Period by leading banks in the London interbank market as of 10:00 a.m.
for delivery on the first day of such Interest Period, for the number of days
comprised therein and in an amount comparable to the amount of the Eurodollar
Loan of the Administrative Agent.
"Lien" shall mean any mortgage, pledge, security interest,
lien (statutory or otherwise), charge, encumbrance, hypothecation, assignment,
deposit arrangement, or other arrangement having the practical effect of the
foregoing or any preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever (including any
conditional sale or other title retention agreement and any capital lease having
the same economic effect as any of the foregoing).
"L&N" shall mean "L&N Seafood" or L&N Seafood Grill", which
are operating concepts of Borrower.
"Loan Documents" shall mean, collectively, this Agreement, the
Notes (if any), the LC Documents, the Fee Letter, all Notices of Borrowing, the
Subsidiary Guaranty Agreement, the Indemnity and Contribution Agreement, all
Notices of Conversion/Continuation and any and all other instruments,
agreements, documents and writings executed in connection with any of the
foregoing.
"Loan Parties" shall mean the Borrower and the Subsidiary Loan
Parties.
"Loans" shall mean all Revolving Loans and Swingline Loans in
the aggregate or any of them, as the context shall require.
"Margin Regulations" shall mean Regulation T, Regulation U and
Regulation X of the Board of Governors of the Federal Reserve System, as the
same may be in effect from time to time.
"Material Adverse Effect" shall mean, with respect to any
event, act, condition or occurrence of whatever nature (including any adverse
determination in any litigation, arbitration, or governmental investigation or
proceeding), whether singularly or in conjunction with any other event or
events, act or acts, condition or conditions, occurrence or occurrences whether
or not related, a material adverse change in, or a material adverse effect on,
(i) the business, results of operations, financial condition, assets,
liabilities or prospects of the Borrower and its Subsidiaries taken as a whole,
(ii) the ability of the Loan Parties to perform any of their respective
obligations under the Loan Documents, (iii) the rights and remedies of the
Administrative Agent, the Issuing Bank, Swingline Bank, and the Lenders under
any of the Loan Documents or (iv) the legality, validity or enforceability of
any of the Loan Documents.
"Material Indebtedness" shall mean Indebtedness (other than
the Loans and Letters of Credit) or obligations in respect of one or more
Hedging Agreements, of any one or more of the Borrower and the Subsidiaries in
an aggregate principal amount exceeding $2,500,000. For purposes of determining
Material Indebtedness, the "principal amount" of the obligations of the Borrower
or any Subsidiary in respect to any Hedging Agreement at any time shall be the
maximum aggregate amount (giving effect to any netting agreements) that the
Borrower or such Subsidiary would be required to pay if such Hedging Agreement
were terminated at such time.
"Material Subsidiary" shall mean (i) each Loan Party other
than the Borrower, and (ii) each other Subsidiary of the Borrower, now existing
or hereafter established or acquired, that at any time prior to the Maturity
Date, has or acquires total assets in excess of $5,000,000, or that accounted
for or produced more than 5% of the Consolidated Net Income (Loss) of the
Borrower on a consolidated basis during any of the three most recently completed
Fiscal Years of the Borrower, or that is otherwise material to the operations or
business of the Borrower or another Material Subsidiary.
"Multiemployer Plan" shall have the meaning set forth in
Section 4001(a)(3) of ERISA.
"Notes" shall mean, collectively, the Revolving Credit Notes
and the Swingline Note.
"Notices of Borrowing" shall mean, collectively, the Notices
of Revolving Borrowing and the Notices of Swingline Borrowing.
"Notice of Conversion/Continuation" shall mean the notice
given by the Borrower to the Administrative Agent in respect of the conversion
or continuation of an outstanding Borrowing as provided in Section 2.8(b)
hereof.
"Notice of Revolving Borrowing" shall have the meaning as set
forth in Section 2.3(a).
"Notice of Swingline Borrowing" shall have the meaning as set
forth in Section 2.6(a).
"Obligations" shall mean all amounts owing by the Borrower to
the Administrative Agent, the Issuing Bank or any Lender (including the
Swingline Lender) pursuant to or in connection with this Agreement or any other
Loan Document, including without limitation, all principal, interest (including
any interest accruing after the filing of any petition in bankruptcy or the
commencement of any insolvency, reorganization or like proceeding relating to
the Borrower, whether or not a claim for post-filing or post-petition interest
is allowed in such proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses (including all
fees and expenses of counsel to the Administrative Agent and any Lender
(including the Swingline Lender) incurred pursuant to this Agreement or any
other Loan Document), whether direct or indirect, absolute or contingent,
liquidated or unliquidated, now existing or hereafter arising hereunder or
thereunder, and all obligations arising under Hedging Agreements relating to the
foregoing to the extent permitted hereunder, and all obligations and liabilities
incurred in connection with collecting and enforcing the foregoing, together
with all renewals, extensions, modifications or refinancings thereof.
"Off-Balance Sheet Liabilities" of any Person shall mean (i)
any repurchase obligation or liability of such Person with respect to accounts
or notes receivable sold by such Person, (ii) any liability of such Person under
any sale and leaseback transactions which do not create a liability on the
balance sheet of such Person, (iii) any Synthetic Lease Obligation or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheet of such Person in accordance with GAAP.
"OSHA" shall mean the Occupational Safety and Health Act of
1970, as amended from time to time, and any successor statute.
"Other Taxes" shall mean any and 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 from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Participant" shall have the meaning set forth in Section
10.4(c).
"Payment Office" shall mean the office of the Administrative
Agent located at 303 Peachtree St., N.E., 25th Floor, Atlanta, Georgia 30308, or
such other location as to which the Administrative Agent shall have given
written notice to the Borrower and the other Lenders.
"PBGC" shall mean the Pension Benefit Guaranty Corporation
referred to and defined in ERISA, and any successor entity performing similar
functions.
"Permitted Encumbrances" shall mean
(i) Liens imposed by law for taxes not yet due or which are being contested
in good faith by appropriate proceedings and with respect to which
adequate reserves are being maintained in accordance with GAAP;
(ii) statutory Liens of landlords and Liens of carriers, warehousemen,
mechanics, materialmen and other Liens imposed by law created in the
ordinary course of business for amounts not yet due or which are being
contested in good faith by appropriate proceedings and with respect to
which adequate reserves are being maintained in accordance with GAAP;
(iii) pledges and deposits made in the ordinary course of business in
compliance with workers' compensation, unemployment insurance and other
social security laws or regulations;
(iv) deposits to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature, in each case in the ordinary course
of business;
(v) judgment and attachment liens not giving rise to an Event of Default or
Liens created by or existing from any litigation or legal proceeding
that are currently being contested in good faith by appropriate
proceedings and with respect to which adequate reserves are being
maintained in accordance with GAAP; and
(vi) easements, zoning restrictions, rights-of-way and similar encumbrances
on real property imposed by law or arising in the ordinary course of
business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or
materially interfere with the ordinary conduct of business of the
Borrower and its Subsidiaries taken as a whole;
provided, that the term "Permitted Encumbrances" shall not include any
Lien securing Indebtedness.
"Permitted Investments" shall mean:
(i) direct obligations of, or obligations the principal of and interest on
which are unconditionally Guaranteed by, the United States (or by any
agency thereof to the extent such obligations are backed by the full
faith and credit of the United States), in each case maturing within
one year from the date of acquisition thereof;
(ii) commercial paper having the highest rating, at the time of acquisition
thereof, of S&P or Moody's and in either case maturing within six
months from the date of acquisition thereof;
(iii) certificates of deposit, bankers' acceptances and time deposits
maturing within 180 days of the date of acquisition thereof issued or
Guaranteed by or placed with, and money market deposit accounts issued
or offered by, any domestic office of any commercial bank organized
under the laws of the United States or any state thereof which has a
combined capital and surplus and undivided profits of not less than
$500,000,000;
(iv) fully collateralized repurchase agreements with a term of not more than
30 days for securities described in clause (i) above and entered into
with a financial institution satisfying the criteria described in
clause (iii) above; and
(v) mutual funds investing solely in any one or more of the Permitted
Investments described in clauses (i)
through (iv) above.
"Permitted Liens" means all Liens permitted under Section 7.2.
"Person" shall mean any individual, partnership, firm,
corporation, association, joint venture, limited liability company, trust or
other entity, or any Governmental Authority.
"Plan" means any employee pension benefit plan (other than a
Multiemployer Plan) subject to the provisions of Title IV of ERISA or Section
412 of the Code or Section 302 of ERISA, and in respect of which the Borrower or
any ERISA Affiliate is (or, if such plan were terminated, would under Section
4069 of ERISA be deemed to be) an "employer" as defined in Section 3(5) of
ERISA.
"Pro Rata Share" shall mean with respect to any Lender at any
time, a percentage, the numerator of which shall be such Lender's Commitment (or
if such Commitments have been terminated or expired or the Loans have been
declared to be due and payable, such Lender's Loan funded under such
Commitment), and the denominator of which shall be the sum of such Commitments
of all Lenders (or if such Commitments have been terminated or expired or the
Loans have been declared to be due and payable, all Loans of all Lenders funded
under such Commitments).
"Regulation D" shall mean Regulation D of the Board of
Governors of the Federal Reserve System, as the same may be in effect from time
to time, and any successor regulations.
"Related Parties" shall mean, with respect to any specified
Person, such Person's Affiliates and the respective directors, officers,
employees, agents and advisors of such Person and such Person's Affiliates.
"Release" means any release, spill, emission, leaking,
dumping, injection, pouring, deposit, disposal, discharge, dispersal, leaching
or migration into the environment (including ambient air, surface water,
groundwater, land surface or subsurface strata) or within any building,
structure, facility or fixture.
"Required Lenders" shall mean, at any time, Lenders holding at
least 51% of the aggregate Commitments or, if the Commitments are no longer in
effect, Lenders holding at least 51% of the aggregate outstanding Loans.
"Requirement of Law" for any Person shall mean the articles or
certificate of incorporation and bylaws or other organizational or governing
documents of such Person, and any law, treaty, rule or regulation, or
determination of a Governmental Authority, in each case applicable to or binding
upon such Person or any of its property or to which such Person or any of its
property is subject.
"Responsible Officer" shall mean any of the president, the
chief executive officer, the chief operating officer, the chief financial
officer, the treasurer or a vice president of the Borrower or such other
representative of the Borrower as may be designated in writing by any one of the
foregoing with the consent of the Administrative Agent; and, with respect to the
financial covenants only, the chief financial officer or the treasurer of the
Borrower.
"Restricted Payment" shall have the meaning set forth in
Section 7.5.
"Revolving Commitment" shall mean, with respect to each
Lender, the obligation of such Lender to make Revolving Loans to the Borrower
and to participate in Letters of Credit (subject to the terms herein) and
Swingline Loans in an aggregate principal amount not exceeding the amount set
forth with respect to such Lender on the signature pages to this Agreement, or
in the case of a Person becoming a Lender after the Closing Date, the amount of
the assigned "Revolving Commitment" as provided in the Assignment and Acceptance
Agreement executed by such Person as an assignee, as the same may be changed
pursuant to terms hereof.
"Revolving Commitment Termination Date" shall mean the earlier
of (i) October 10, 2005, or (ii) the date on which all amounts outstanding under
this Agreement have been declared or have automatically become due and payable
(whether by acceleration or otherwise).
"Revolving Credit Exposure" shall mean, with respect to any
Lender at any time, the sum of the outstanding principal amount of such Lender's
Revolving Loans, such Lender's LC Exposure and such Lender's Swingline Exposure.
"Revolving Credit Note" shall mean a promissory note of the
Borrower payable to the order of a requesting Lender in the principal amount of
such Lender's Revolving Commitment, in substantially the form of Exhibit A.
"Revolving Loan" shall mean a loan made by a Lender (other
than the Swingline Lender) to the Borrower under its Revolving Commitment, which
may either be a Base Rate Loan or a Eurodollar Loan.
"Subsidiary" shall mean, with respect to any Person (the
"parent"), any corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be consolidated
with those of the parent in the parent's consolidated financial statements if
such financial statements were prepared in accordance with GAAP as of such date,
as well as any other corporation, partnership, joint venture, limited liability
company, association or other entity of which securities or other ownership
interests representing more than 50% of the equity or more than 50% of the
ordinary voting power, or in the case of a partnership, more than 50% of the
general partnership interests are, as of such date, are directly or indirectly
owned, controlled (intentionally lowercase) or held by the parent. Unless
otherwise indicated, all references to "Subsidiary" hereunder shall mean a
Subsidiary of the Borrower.
"Subsidiary Guaranty Agreement" shall mean the Subsidiary
Guaranty Agreement as amended, restated, supplemented or otherwise modified from
time to time, substantially in the form of Exhibit D, made by the Subsidiary
Loan Parties in favor of the Administrative Agent for the benefit of the
Lenders.
"Subordinated Debt" shall mean all Indebtedness of Borrower
subordinated to all obligations of Borrower or any other Loan Party arising
under this Agreement, the Notes, and the Guaranty Agreement, created, incurred
or assumed on terms and conditions satisfactory in all respects to the
Administrative Agent and the Required Lenders, including without limitation,
with respect to interest rates, payment terms, maturities, amortization
schedules, covenants, defaults, remedies, and subordination provisions, as
evidenced by the written approval of the Administrative Agent and Required
Lenders.
"Subsidiary Loan Party" shall mean any Material Subsidiary
that is not a Foreign Subsidiary.
"Swingline Commitment" shall mean the commitment of the
Swingline Lender to make Swingline Loans in an aggregate principal amount at any
time outstanding not to exceed $10,000,000.
"Swingline Exposure" shall mean, with respect to each Lender,
the principal amount of the Swingline Loans in which such Lender is legally
obligated either to make a Base Rate Loan or to purchase a participation in
accordance with Section 2.6, which shall equal such Lender's Pro Rata Share of
all outstanding Swingline Loans.
"Swingline Lender" shall mean SunTrust Bank and its
successors.
"Swingline Loan" shall mean a loan made to the Borrower by the
Swingline Lender under the Swingline Commitment.
"Swingline Note" shall mean the promissory note of the
Borrower payable to the order of the Swingline Lender in the principal amount of
the Swingline Commitment, substantially the form of Exhibit B.
"Swingline Rate" shall have the meaning assigned to such term
in Section 2.6.
"Synthetic Lease" means a lease transaction under which the
parties intend that (i) the lease will be treated as an "operating lease" by the
lessee pursuant to Statement of Financial Accounting Standards No. 13, as
amended and (ii) the lessee will be entitled to various tax and other benefits
ordinarily available to owners (as opposed to lessees) of like property.
"Synthetic Lease Obligations" shall mean, with respect to any
Person, the sum of (i) all remaining rental obligations of such Person as lessee
under Synthetic Leases which are attributable to principal and, without
duplication, (ii) all rental and purchase price payment obligations of such
Person under such Synthetic Leases assuming such Person exercises the option to
purchase the lease property at the end of the lease term.
"Taxes" shall mean any and all present or future taxes,
levies, imposts, duties, deductions, charges or withholdings imposed by any
Governmental Authority.
"Tia's" shall mean Tia's Mexican Restaurants", an operating
concept of Tia's, LLC, a Delaware limited liability company, a wholly owned
subsidiary of Borrower.
"Type", when used in reference to a Loan or Borrowing, refers
to whether the rate of interest on such Loan, or on the Loans comprising such
Borrowing, is determined by reference to the Adjusted LIBO Rate or the Base
Rate.
"Withdrawal Liability" shall mean liability to a Multiemployer
Plan as a result of a complete or partial withdrawal from such Multiemployer
Plan, as such terms are defined in Part I of Subtitle E of Title IV of ERISA.
Section 1.2 Classifications of Loans and Borrowings.
For purposes of this Agreement,
Loans may be classified and referred to by Class (e.g. a "Revolving Loan" or
"Swingline Loan") or by Type (e.g.
a "Eurodollar Loan" or "Base Rate Loan") or by Class and Type (e.g.
"Revolving Eurodollar Loan"). Borrowings
also may be classified and referred to by Class (e.g. "Revolving
Borrowing") or by Type (e.g. "Eurodollar
Borrowing") or by Class and Type (e.g. " Revolving Eurodollar Borrowing").
Section 1.3 Accounting Terms and Determination. Unless
otherwise defined or specified herein, all accounting terms used herein shall be
interpreted, all accounting determinations hereunder shall be made, and all
financial statements required to be delivered hereunder shall be prepared, in
accordance with GAAP as in effect from time to time, applied on a basis
consistent (except for such changes approved by the Borrower's independent
public accountants) with the most recent audited consolidated financial
statement of the Borrower delivered pursuant to Section 5.1(a); provided, that
if the Borrower notifies the Administrative Agent that the Borrower wishes to
amend any covenant in Article VI to eliminate the effect of any change in GAAP
on the operation of such covenant (or if the Administrative Agent notifies the
Borrower that the Required Lenders wish to amend Article VI for such purpose),
then the Borrower's compliance with such covenant shall be determined on the
basis of GAAP in effect immediately before the relevant change in GAAP became
effective, until either such notice is withdrawn or such covenant is amended in
a manner satisfactory to the Borrower and the Required Lenders.
Section 1.4 Terms Generally. The definitions of terms herein
shall apply equally to the singular and plural forms of the terms defined.
Whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase "without limitation".
The word "will" shall be construed to have the same meaning and effect as the
word "shall". In the computation of periods of time from a specified date to a
later specified date, the word "from" means "from and including" and the word
"to" means "to but excluding". Unless the context requires otherwise (i) any
definition of or reference to any agreement, instrument or other document herein
shall be construed as referring to such agreement, instrument or other document
as it was originally executed or as it may from time to time be amended,
supplemented or otherwise modified (subject to any restrictions on such
amendments, supplements or modifications set forth herein), (ii) any reference
herein to any Person shall be construed to include such Person's successors and
permitted assigns, (iii) the words "hereof", "herein" and "hereunder" and words
of similar import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles,
Sections, Exhibits and Schedules to this Agreement and (v) all references to a
specific time shall be construed to refer to the time in the city and state of
the Administrative Agent's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENTS
Section 2.1 General Description of Facilities. Subject to and
upon the terms and conditions herein set forth, (i) the Lenders hereby establish
in favor of the Borrower a revolving credit facility pursuant to which the
Lenders severally agree (to the extent of such Lender's Revolving Commitment) to
make Revolving Loans to the Borrower in accordance with Section 2.2, (ii) the
Issuing Bank agrees to issue Letters of Credit in accordance with Section 2.23,
(iii) the Swingline Lender agrees to make Swingline Loans in accordance with
Section 2.5, (iv) each Lender agrees to purchase a participation interest in the
Letters of Credit and the Swingline Loans pursuant to the terms and conditions
hereof; provided, that in no event shall the aggregate principal amount of all
outstanding Revolving Loans, Swingline Loans and outstanding LC Exposure exceed
at any time the Aggregate Revolving Commitment Amount from time to time in
effect.
Section 2.2 Revolving Loans. Subject to the terms and
conditions set forth herein, each Lender severally agrees to make Revolving
Loans to the Borrower, from time to time during the Availability Period, in an
aggregate principal amount outstanding at any time that will not result in (i)
such Lender's Revolving Credit Exposure exceeding such Lender's Revolving
Commitment or (ii) the aggregate Revolving Credit Exposures of all Lenders
exceeding the Aggregate Revolving Commitment Amount. During the Availability
Period, the Borrower shall be entitled to borrow, prepay and reborrow Revolving
Loans in accordance with the terms and conditions of this Agreement; provided,
that the Borrower may not borrow or reborrow should there exist a Default or
Event of Default.
Section 2.3 Procedure for Revolving Borrowings.
The Borrower shall give the Administrative Agent written
notice (or telephonic notice promptly confirmed in writing) of each Revolving
Borrowing substantially in the form of Exhibit 2.3 attached hereto (a "Notice of
Revolving Borrowing") (x) prior to 11:00 a.m. one (1) Business Day prior to the
requested date of each Base Rate Borrowing and (y) prior to 11:00 a.m. three (3)
Business Days prior to the requested date of each Eurodollar Borrowing. Each
Notice of Revolving Borrowing shall be irrevocable and shall specify: (i) the
aggregate principal amount of such Borrowing, (ii) the date of such Borrowing
(which shall be a Business Day), (iii) the Type of such Revolving Loan
comprising such Borrowing and (iv) in the case of a Eurodollar Borrowing, the
duration of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period). Each Revolving Borrowing shall
consist entirely of Base Rate Loans or Eurodollar Loans, as the Borrower may
request. The aggregate principal amount of each Eurodollar Borrowing shall be
not less than $5,000,000 or a larger multiple of $1,000,000, and the aggregate
principal amount of each Base Rate Borrowing shall not be less than $1,000,000
or a larger multiple of $100,000; provided, that Base Rate Loans made pursuant
to Section 2.6 or Section 2.23 may be made in lesser amounts as provided
therein. At no time shall the total number of Eurodollar Borrowings outstanding
at any time exceed six. Promptly following the receipt of a Notice of Revolving
Borrowing in accordance herewith, the Administrative Agent shall advise each
Lender of the details thereof and the amount of such Lender's Revolving Loan to
be made as part of the requested Revolving Borrowing.
Section 2.4 Increase of Aggregate Revolving Commitment
Amount.
(a) So long as no Event of Default has occurred and is
continuing, Borrower may, at any time by written notice to the Administrative
Agent, who shall promptly notify the Lenders, request that the Aggregate
Revolving Commitment Amount be increased up to an amount not to exceed
$100,000,000 (the "Requested Commitment Amount"). No Lender (or any successor
thereto) shall have any obligation to increase its Revolving Commitment or its
other obligations under this Agreement and the other Credit Documents, and any
decision by a Lender to increase its Revolving Commitment shall be made in its
sole discretion independently from any other Lender.
(b) The Borrower shall have the right to obtain commitments
from existing Lenders or new banks or financial institutions in an aggregate
amount such that the existing Revolving Commitments, plus the aggregate
principal amount of the new commitments by the Lenders or new banks or financial
institutions does not exceed the Requested Commitment Amount; provided, however,
that (1) the new banks or financial institutions must be acceptable to the
Administrative Agent, which acceptance will not be unreasonably withheld or
delayed, and (2) the new banks or financial institutions must become parties to
this Agreement pursuant to a joinder agreement in form and substance
satisfactory to the Administrative Agent, pursuant to which (x) they shall be
granted all of the rights that existing Lenders have under this Agreement and
the other Credit Documents and (y) they shall assume the same liabilities and
obligations that the existing Lenders have under this Agreement.
Section 2.5 Swingline Commitment. Subject to the terms and
conditions set forth herein, the Swingline Lender agrees to make Swingline Loans
to the Borrower during the Availability Period in an aggregate principal amount
outstanding at any time not to exceed the lesser of (i) the Swingline Commitment
then in effect and (ii) the difference between the Aggregate Revolving
Commitment Amount and the aggregate Revolving Credit Exposures of all Lenders;
provided that the Swingline Lender shall not be required to make a Swingline
Loan to refinance an outstanding Swingline Loan. The Borrower shall be entitled
to borrow, repay and reborrow Swingline Loans in accordance with the terms and
conditions of this Agreement.
Section 2.6 Procedure for Swingline Borrowing; Etc. The
Borrower shall give the Administrative Agent written notice (or telephonic
notice promptly confirmed in writing) of each Swingline Borrowing ("Notice of
Swingline Borrowing") prior to 1:00 p.m. on the requested date of each Swingline
Borrowing. Each Notice of Swingline Borrowing shall be irrevocable and shall
specify: (i) the principal amount of such Swingline Loan, (ii) the date of such
Swingline Loan (which shall be a Business Day) and (iii) the account of the
Borrower to which the proceeds of such Swingline Loan should be credited. The
Administrative Agent will promptly advise the Swingline Lender of each Notice of
Swingline Borrowing. Each Swingline Loan shall accrue interest at the Base Rate
or any other interest rate as agreed between the Borrower and the Swingline
Lender (the "Swingline Rate") and shall have an Interest Period (subject to the
definition thereof) as agreed between the Borrower and the Lender. The aggregate
principal amount of each Swingline Loan shall be not less than $100,000 or a
larger multiple of $50,000, or such other minimum amounts agreed to by the
Swingline Lender and the Borrower. The Swingline Lender will make the proceeds
of each Swingline Loan available to the Borrower in Dollars in immediately
available funds at the account specified by the Borrower in the applicable
Notice of Swingline Borrowing not later than 3:00 p.m. on the requested date of
such Swingline Loan. The Administrative Agent will notify the Lenders on a
quarterly basis if any Swingline Loans occurred during such quarter.
(a) The Swingline Lender, at any time and from time to time in
its sole discretion, may, on behalf of the Borrower (which hereby irrevocably
authorizes and directs the Swingline Lender to act on its behalf), give a Notice
of Revolving Borrowing to the Administrative Agent requesting the Lenders
(including the Swingline Lender) to make a Base Rate Loan in an amount equal to
the unpaid principal amount of any Swingline Loan. Each Lender will make the
proceeds of its Base Rate Loan included in such Borrowing available to the
Administrative Agent for the account of the Swingline Lender in accordance with
Section 2.7, which will be used solely for the repayment of such Swingline Loan.
(b) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Swingline Lender) shall purchase an undivided participating interest in such
Swingline Loan in an amount equal to its Pro Rata Share thereof on the date that
such Base Rate Borrowing should have occurred. On the date of such required
purchase, each Lender shall promptly transfer, in immediately available funds,
the amount of its participating interest to the Administrative Agent for the
account of the Swingline Lender. If such Swingline Loan bears interest at a rate
other than the Base Rate, such Swingline Loan shall automatically become a Base
Rate Loan on the effective date of any such participation and interest shall
become payable on demand.
(c) Each Lender's obligation to make a Base Rate Loan pursuant
to Section 2.6(b) or to purchase the participating interests pursuant to Section
2.6(c) shall be absolute and unconditional and shall not be affected by any
circumstance, including without limitation (i) any setoff, counterclaim,
recoupment, defense or other right that such Lender or any other Person may have
or claim against the Swingline Lender, the Borrower or any other Person for any
reason whatsoever, (ii) the existence of a Default or an Event of Default or the
termination of any Lender's Revolving Commitment, (iii) the existence (or
alleged existence) of any event or condition which has had or could reasonably
be expected to have a Material Adverse Effect, (iv) any breach of this Agreement
or any other Loan Document by the Borrower, the Administrative Agent or any
Lender or (v) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing. 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. Until such time as such Lender makes its required payment,
the Swingline Lender shall be deemed to continue to have outstanding Swingline
Loans in the amount of the unpaid participation for all purposes of the Loan
Documents. In addition, 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 the amount of such Lender's
participation interest in such Swingline Loans that such Lender failed to fund
pursuant to this Section, until such amount has been purchased in full.
Section 2.7 Funding of Borrowings.
(a) Each Lender will make available each Loan to be made by it
hereunder on the proposed date thereof by wire transfer in immediately available
funds by 11:00 a.m. to the Administrative Agent at the Payment Office; provided
that the Swingline Loans will be made as set forth in Section 2.6. The
Administrative Agent will make such Loans available to the Borrower by promptly
crediting the amounts that it receives, in like funds by the close of business
on such proposed date, to an account maintained by the Borrower with the
Administrative Agent or at the Borrower's option, by effecting a wire transfer
of such amounts to an account designated by the Borrower to the Administrative
Agent.
(b) Unless the Administrative Agent shall have been notified
by any Lender prior to 5 p.m. one (1) Business Day prior to the date of a
Borrowing in which such Lender is participating that such Lender will not make
available to the Administrative Agent such Lender's share of such Borrowing, the
Administrative Agent may assume that such Lender has made such amount available
to the Administrative Agent on such date, and the Administrative Agent, in
reliance on such assumption, may make available to the Borrower on such date a
corresponding amount. If such corresponding amount is not in fact made available
to the Administrative Agent by such Lender on the date of such Borrowing, the
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender together with interest at the Federal Funds Rate for up
to two (2) days and thereafter at the rate specified for such Borrowing. If such
Lender does not pay such corresponding amount forthwith upon the Administrative
Agent's demand therefor, the Administrative Agent shall promptly notify the
Borrower, and the Borrower shall immediately pay such corresponding amount to
the Administrative Agent together with interest at the rate specified for such
Borrowing. Nothing in this subsection shall be deemed to relieve any Lender from
its obligation to fund its Pro Rata Share of any Borrowing hereunder or to
prejudice any rights which the Borrower may have against any Lender as a result
of any default by such Lender hereunder.
(c) All Revolving Borrowings shall be made by the Lenders on
the basis of their respective Pro Rata Shares. No Lender shall be responsible
for any default by any other Lender in its obligations hereunder, and each
Lender shall be obligated to make its Loans provided to be made by it hereunder,
regardless of the failure of any other Lender to make its Loans hereunder.
Section 2.8 Interest Elections.
(a) Each Borrowing initially shall be of the Type specified in
the applicable Notice of Borrowing, and in the case of a Eurodollar Borrowing,
shall have an initial Interest Period as specified in such Notice of Borrowing.
Thereafter, the Borrower may elect to convert such Borrowing into a different
Type or to continue such Borrowing, and in the case of a Eurodollar Borrowing,
may elect Interest Periods therefor, all as provided in this Section. The
Borrower may elect different options with respect to different portions of the
affected Borrowing, in which case each such portion shall be allocated ratably
among the Lenders holding Loans comprising such Borrowing, and the Loans
comprising each such portion shall be considered a separate Borrowing. This
Section shall NOT apply to Swingline Borrowings, which may not be converted or
continued.
(b) To make an election pursuant to this Section, the Borrower
shall give the Administrative Agent prior written notice (or telephonic notice
promptly confirmed in writing) of each Borrowing substantially in the form of
Exhibit 2.8 hereto (a "Notice of Conversion/Continuation") that is to be
converted or continued, as the case may be, (x) prior to 11:00 a.m. one (1)
Business Day prior to the requested date of a conversion into a Base Rate
Borrowing and (y) prior to 11:00 a.m. three (3) Business Days prior to a
continuation of or conversion into a Eurodollar Borrowing. Each such Notice of
Conversion/Continuation shall be irrevocable and shall specify (i) the Borrowing
to which such Notice of Continuation/Conversion applies and if different options
are being elected with respect to different portions thereof, the portions
thereof that are to be allocated to each resulting Borrowing (in which case the
information to be specified pursuant to clauses (iii) and (iv) shall be
specified for each resulting Borrowing); (ii) the effective date of the election
made pursuant to such Notice of Continuation/Conversion, which shall be a
Business Day, (iii) whether the resulting Borrowing is to be a Base Rate
Borrowing or a Eurodollar Borrowing; and (iv) if the resulting Borrowing is to
be a Eurodollar Borrowing, the Interest Period applicable thereto after giving
effect to such election, which shall be a period contemplated by the definition
of "Interest Period". If any such Notice of Continuation/Conversion requests a
Eurodollar Borrowing but does not specify an Interest Period, the Borrower shall
be deemed to have selected an Interest Period of one month. The principal amount
of any resulting Borrowing shall satisfy the minimum borrowing amount for
Eurodollar Borrowings and Base Rate Borrowings set forth in Section 2.3.
(c) If, on the expiration of any Interest Period in respect of
any Eurodollar Borrowing, the Borrower shall have failed to deliver a Notice of
Conversion/ Continuation, then, unless such Borrowing is repaid as provided
herein, the Borrower shall be deemed to have elected to convert such Borrowing
to a Base Rate Borrowing. No Borrowing may be converted into, or continued as, a
Eurodollar Borrowing if a Default or an Event of Default exists, unless the
Administrative Agent and each of the Lenders shall have otherwise consented in
writing. No conversion of any Eurodollar Loans shall be permitted except on the
last day of the Interest Period in respect thereof.
(d) Upon receipt of any Notice of Conversion/Continuation, the
Administrative Agent shall promptly notify each Lender of the details thereof
and of such Lender's portion of each resulting Borrowing.
Section 2.9 Optional Reduction and Termination of
Commitments.
(a) Unless previously terminated, all Revolving
Commitments shall terminate on the Revolving Commitment Termination Date.
(b) Upon at least three (3) Business Days' prior written
notice (or telephonic notice promptly confirmed in writing) to the
Administrative Agent (which notice shall be irrevocable), the Borrower may
reduce the Aggregate Revolving Commitments in part or terminate the Aggregate
Revolving Commitments in whole; provided, however, that (i) any partial
reduction shall apply to reduce proportionately and permanently the Revolving
Commitment of each Lender, (ii) any partial reduction pursuant to this Section
2.9 shall be in an amount of at least $5,000,000 and any larger multiple of
$1,000,000, and (iii) no such reduction shall be permitted which would reduce
the Aggregate Revolving Commitments to an amount less than the outstanding
Revolving Credit Exposures of all Lenders. Any such reduction in the Aggregate
Revolving Commitments shall result in a proportionate reduction (rounded to the
next lowest integral multiple of $100,000) in the Swingline Commitment and the
LC Commitment.
Section 2.10 Repayment of Loans.
(a) The outstanding principal amount of all Revolving Loans
shall be due and payable (together with accrued and unpaid interest thereon) on
the Revolving Commitment Termination Date.
(b) The principal amount of each Swingline Borrowing shall be
due and payable (together with accrued and unpaid interest thereon) on the
earlier of (i) the last day of the Interest Period applicable to such Borrowing
and (ii) the Revolving Commitment Termination Date.
Section 2.11 Evidence of Indebtedness. Each Lender shall
maintain in accordance with its usual practice appropriate records evidencing
the indebtedness of the Borrower to such Lender resulting from each Loan made by
such Lender from time to time, including the amounts of principal and interest
payable thereon and paid to such Lender from time to time under this Agreement.
The Administrative Agent shall maintain appropriate records in which shall be
recorded (i) the Revolving Commitment of each Lender, (ii) the amount of each
Loan made hereunder by each Lender, the Class and Type thereof and the Interest
Period applicable thereto, (iii) the date of each continuation thereof pursuant
to Section 2.8, (iv) the date of each conversion of all or a portion thereof to
another Type pursuant to Section 2.8, (v) the date and amount of any principal
or interest due and payable or to become due and payable from the Borrower to
each Lender hereunder in respect of such Loans and (vi) both the date and amount
of any sum received by the Administrative Agent hereunder from the Borrower in
respect of the Loans and each Lender's Pro Rata Share thereof. The entries made
in such records shall be prima facie evidence of the existence and amounts of
the obligations of the Borrower therein recorded; provided, however, that the
failure or delay of any Lender or the Administrative Agent in maintaining or
making entries into any such record or any error therein shall not in any manner
affect the obligation of the Borrower to repay the Loans (both principal and
unpaid accrued interest) of such Lender in accordance with the terms of this
Agreement.
(a) At the request of any Lender (including the Swingline
Lender) at any time, the Borrower agrees that it will execute and deliver to
such Lender a Revolving Credit Note and, in the case of the Swingline Lender
only, a Swingline Note, payable to the order of such Lender.
Section 2.12 Optional Prepayments.
(a) The Borrower shall have the right at any time and from
time to time to prepay any Borrowing, in whole or in part, without premium or
penalty, by giving irrevocable written notice (or telephonic notice promptly
confirmed in writing) to the Administrative Agent no later than (i) in the case
of prepayment of any Eurodollar Borrowing, 12:00 noon not less than three (3)
Business Days prior to any such prepayment, (ii) in the case of any prepayment
of any Base Rate Borrowing, not less than one Business Day prior to the date of
such prepayment, and (iii) in the case of Swingline Borrowings, prior to 12:00
noon on the date of such prepayment. Each such notice shall be irrevocable and
shall specify the proposed date of such prepayment and the principal amount of
each Borrowing or portion thereof to be prepaid. Upon receipt of any such
notice, the Administrative Agent shall promptly notify each Lender of the
contents thereof and of such Lender's Pro Rata Share of any such prepayment. If
such notice is given, the aggregate amount specified in such notice shall be due
and payable on the date designated in such notice, together with accrued
interest to such date on the amount so prepaid; provided, that if a Eurodollar
Borrowing is prepaid on a date other than the last day of an Interest Period
applicable thereto, the Borrower shall also pay all amounts required pursuant to
Section 2.20. Each partial prepayment of any Loan (other than a Swingline Loan)
shall be in a minimum amount of $5,000,000 and in integral multiples of
$1,000,000, and each partial payment of any Swingline Loan shall be in a minimum
amount of $100,000 and integral multiples of $50,000. Each prepayment of a
Borrowing shall be applied ratably to the Loans comprising such Borrowing.
Section 2.13 Interest on Loans
(a) The Borrower shall pay interest on each Base Rate Loan at
the Base Rate in effect from time to time, and the Borrower shall pay interest
on each Eurodollar Loan at the Adjusted LIBO Rate for the applicable Interest
Period in effect for such Loan, plus the Applicable Margin in effect from time
to time.
(b) The Borrower shall pay interest on each Swingline
Loan at the Swingline Rate.
(c) If an Event of Default has occurred or is continuing, and
at any time after acceleration of the Loans pursuant to the last paragraph of
Section 8.1, the Borrower shall pay interest ("Default Interest") with respect
to all Eurodollar Loans at the rate otherwise applicable for the then-current
Interest Period plus an additional 2% per annum until the last day of such
Interest Period, and thereafter, and with respect to all Base Rate Loans
(including all Swingline Loans) and all other Obligations hereunder (other than
Loans), at an all-in rate in effect for Base Rate Loans, plus an additional 2%
per annum.
(d) Interest on the principal amount of all Loans shall accrue
from and including the date such Loans are made to but excluding the date of any
repayment thereof. Interest on all outstanding Base Rate Loans shall be payable
quarterly in arrears on the last day of each Fiscal Quarter and on the Revolving
Commitment Termination Date. Interest on all outstanding Eurodollar Loans shall
be payable on the last day of each Interest Period applicable thereto, and, in
the case of any Eurodollar Loans having an Interest Period in excess of three
months or 90 days, respectively, on each day which occurs every three months or
90 days, as the case may be, after the initial date of such Interest Period, and
on the Revolving Commitment Termination Date. Interest on each Swingline Loans
shall be payable quarterly in arrears on the last day of each Fiscal Quarter,
and on the Revolving Commitment Termination Date. Interest on any Loan which is
converted into a Loan of another Type or which is repaid or prepaid shall be
payable on the date of such conversion or on the date of any such repayment or
prepayment (on the amount repaid or prepaid) thereof. All Default Interest shall
be payable on demand.
(e) The Administrative Agent shall determine each interest
rate applicable to the Loans hereunder and shall promptly notify the Borrower
and the Lenders of such rate in writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and binding for all
purposes, absent manifest error.
Section 2.14 Fees.
(a) The Borrower shall pay to the Administrative Agent for its
own account fees in the amounts and at the times previously agreed upon by the
Borrower and the Administrative Agent in the Fee Letter.
(b) The Borrower agrees to pay to the Administrative Agent for
the account of each Lender a commitment fee, which shall accrue at the
Applicable Commitment Fee Percentage (determined daily in accordance with
Schedule 1.1) on the daily amount of the unused Revolving Commitment of such
Lender during the Availability Period; provided, however, that if such Lender
continues to have any Revolving Credit Exposure after the Revolving Commitment
Termination Date, then the commitment fee shall continue to accrue on the daily
amount of such Lender's Revolving Credit Exposure from and after the Revolving
Commitment Termination Date to the date that all of such Lender's Revolving
Credit Exposure has been paid in full. Accrued commitment fees shall be payable
in arrears on the last day of each Fiscal Quarter and on the Revolving
Commitment Termination Date, commencing on the first such date after the Closing
Date; provided, further, however, that any commitment fees accruing after the
Revolving Commitment Termination Date shall be payable on demand. For purposes
of computing commitment fees with respect to the Revolving Commitments, the
Revolving Commitment of each Lender shall be deemed used to the extent of the
outstanding Revolving Loans and LC Exposure, but not Swingline Exposure, of such
Lender.
(c) The Borrower agrees to pay (i) to the Administrative
Agent, for the account of each Lender, a letter of credit fee with respect to
such Lender's participation in each Letter of Credit, which shall accrue at the
Applicable Margin for Eurodollar Loans then in effect on the average daily
amount of such Lender's LC Exposure (excluding any portion thereof attributable
to unreimbursed LC Disbursements) attributable to such Letter of Credit during
the period from and including the date of issuance of such Letter of Credit to
but excluding the date on which such Letter expires or is drawn in full
(including without limitation any LC Exposure that remains outstanding after the
Revolving Commitment Termination Date) and (ii) to the Issuing Bank for its own
account a fronting fee, which shall accrue at the rate of 0.125% per annum on
the average daily amount of the LC Exposure (excluding any portion thereof
attributable to unreimbursed LC Disbursements) during the Availability Period
(or until the date that such Letter of Credit is irrevocably cancelled,
whichever is later), as well as the Issuing Bank's standard fees with respect to
issuance, amendment, renewal or extension of any Letter of Credit or processing
of drawings thereunder. Accrued letter of credit fees and fronting fees shall be
due and payable quarterly in arrears on the last day of each Fiscal Quarter,
commencing with the last day of the Fiscal Quarter in which the first Letter of
Credit is issued, and ending on the Revolving Commitment Termination Date, and
thereafter accrued letter of credit fees and fronting fees shall be payable on
demand.
Section 2.15 Computation of Interest and Fees.
All computations of interest and fees hereunder shall be made
on the basis of a year of 360 days for the actual number of days (including the
first day but excluding the last day) occurring in the period for which such
interest or fees are payable (to the extent computed on the basis of days
elapsed). Each determination by the Administrative Agent of an interest amount
or fee hereunder shall be made in good faith and, except for manifest error,
shall be final, conclusive and binding for all purposes.
Section 2.16 Inability to Determine Interest Rates. If
prior to the commencement of any Interest Period for any Eurodollar Borrowing,
(i) the Administrative Agent shall have determined
(which determination shall be conclusive and binding upon the
Borrower) that, by reason of circumstances affecting the
relevant interbank market, adequate means do not exist for
ascertaining LIBOR for such Interest Period, or
(ii) the Administrative Agent shall have received
notice from the Required Lenders that the Adjusted LIBO Rate
does not adequately and fairly reflect the cost to such
Lenders (or Lender, as the case may be) of making, funding or
maintaining their (or its, as the case may be) Eurodollar
Loans for such Interest Period,
the Administrative Agent shall give written notice (or telephonic notice,
promptly confirmed in writing) to the Borrower and to the Lenders as soon as
practicable thereafter. In the case of Eurodollar Loans, until the
Administrative Agent shall notify the Borrower and the Lenders that the
circumstances giving rise to such notice no longer exist, (i) the obligations of
the Lenders to make Eurodollar Revolving Loans or to continue or convert
outstanding Loans as or into Eurodollar Loans shall be suspended and (ii) all
such affected Loans shall be converted into Base Rate Loans on the last day of
the then current Interest Period applicable thereto unless the Borrower prepays
such Loans in accordance with this Agreement. Unless the Borrower notifies the
Administrative Agent at least one Business Day before the date of any Eurodollar
Revolving Borrowing for which a Notice of Revolving Borrowing has previously
been given that it elects not to borrow on such date, then such Revolving
Borrowing shall be made as a Base Rate Borrowing.
Section 2.17 Illegality. If any Change in Law shall make it
unlawful or impossible for any Lender to make, maintain or fund any Eurodollar
Loan and such Lender shall so notify the Administrative Agent, the
Administrative Agent shall promptly give notice thereof to the Borrower and the
other Lenders, whereupon until such Lender notifies the Administrative Agent and
the Borrower that the circumstances giving rise to such suspension no longer
exist, the obligation of such Lender to make Eurodollar Revolving Loans, or to
continue or convert outstanding Loans as or into Eurodollar Loans, shall be
suspended. In the case of the making of a Eurodollar Revolving Borrowing, such
Lender's Revolving Loan shall be made as a Base Rate Loan as part of the same
Revolving Borrowing for the same Interest Period and if the affected Eurodollar
Loan is then outstanding, such Loan shall be converted to a Base Rate Loan
either (i) on the last day of the then current Interest Period applicable to
such Eurodollar Loan if such Lender may lawfully continue to maintain such Loan
to such date or (ii) immediately if such Lender shall determine that it may not
lawfully continue to maintain such Eurodollar Loan to such date. Notwithstanding
the foregoing, the affected Lender shall, prior to giving such notice to the
Administrative Agent, designate a different Applicable Lending Office if such
designation would avoid the need for giving such notice and if such designation
would not otherwise be disadvantageous to such Lender in the good faith exercise
of its discretion.
Section 2.18 Increased Costs.
(a) If any Change in Law shall:
(i) impose, modify or deem applicable any reserve,
special deposit or similar requirement that is not otherwise
included in the determination of the Adjusted LIBO Rate
hereunder against assets of, deposits with or for the account
of, or credit extended by, any Lender (except any such reserve
requirement reflected in the Adjusted LIBO Rate) or the
Issuing Bank;
(ii) impose on any Lender or on the Issuing Bank or
the eurodollar interbank market any other condition affecting
this Agreement or any Eurodollar Loans made by such Lender or
any Letter of Credit or any participation therein; or
(iii) change the basis of taxation of the overall net
income or overall gross income by the United States or any
foreign jurisdiction or any political subdivision of either
thereof under the laws of which any Lender is organized or has
its lending office.
and the result of the foregoing is to increase the cost to such Lender of
making, converting into, continuing or maintaining a Eurodollar Loan or to
increase the cost to such Lender or the Issuing Bank of participating in or
issuing any Letter of Credit or to reduce the amount received or receivable by
such Lender or the Issuing Bank hereunder (whether of principal, interest or any
other amount), then the Borrower shall promptly pay, upon written notice from
and demand by such Lender on the Borrower (with a copy of such notice and demand
to the Administrative Agent), to the Administrative Agent for the account of
such Lender, within five Business Days after the date of such notice and demand,
additional amount or amounts sufficient to compensate such Lender or the Issuing
Bank, as the case may be, for such additional costs incurred or reduction
suffered.
(b) If any Lender or the Issuing Bank shall have determined
that on or after the date of this Agreement any Change in Law regarding capital
requirements has or would have the effect of reducing the rate of return on such
Lender's or the Issuing Bank's capital (or on the capital of such Lender's or
the Issuing Bank's parent corporation) as a consequence of its obligations
hereunder or under or in respect of any Letter of Credit to a level below that
which such Lender or the Issuing Bank or such Lender's or the Issuing Bank's
parent corporation could have achieved but for such Change in Law (taking into
consideration such Lender's or the Issuing Bank's policies or the policies of
such Lender's or the Issuing Bank's parent corporation with respect to capital
adequacy) then, from time to time, within five (5) Business Days after receipt
by the Borrower of written demand by such Lender (with a copy thereof to the
Administrative Agent), the Borrower shall pay to such Lender such additional
amounts as will compensate such Lender or the Issuing Bank or such Lender's or
the Issuing Bank's parent corporation for any such reduction suffered.
(c) A certificate of a Lender or the Issuing Bank setting
forth the amount or amounts necessary to compensate such Lender or the Issuing
Bank or such Lender's or the Issuing Bank's parent corporation, as the case may
be, specified in paragraph (a) or (b) of this Section shall be delivered to the
Borrower (with a copy to the Administrative Agent) and shall be conclusive,
absent manifest error. The Borrower shall pay any such Lender or the Issuing
Bank, as the case may be, such amount or amounts within 10 days after receipt
thereof.
(d) Failure or delay on the part of any Lender or the Issuing
Bank to demand compensation pursuant to this Section shall not constitute a
waiver of such Lender's or the Issuing Bank's right to demand such compensation.
Section 2.19 Funding Indemnity. In the event of (a) the
payment of any principal of a Eurodollar Loan other than on the last day of the
Interest Period applicable thereto (including as a result of an Event of
Default), (b) the conversion or continuation of a Eurodollar Loan other than on
the last day of the Interest Period applicable thereto, or (c) the failure by
the Borrower to borrow, prepay, convert or continue any Eurodollar Loan on the
date specified in any applicable notice (regardless of whether such notice is
withdrawn or revoked) then, in any such event, the Borrower shall compensate
each Lender, within five (5) Business Days after written demand from such
Lender, for any loss, cost or expense attributable to such event. In the case of
a Eurodollar Loan, such loss, cost or expense shall be deemed to include an
amount determined by such Lender to be the excess, if any, of (A) the amount of
interest that would have accrued on the principal amount of such Eurodollar Loan
if such event had not occurred at the Adjusted LIBO Rate applicable to such
Eurodollar Loan for the period from the date of such event to the last day of
the then current Interest Period therefor (or in the case of a failure to
borrow, convert or continue, for the period that would have been the Interest
Period for such Eurodollar Loan) over (B) the amount of interest that would
accrue on the principal amount of such Eurodollar Loan for the same period if
the Adjusted LIBO Rate were set on the date such Eurodollar Loan was prepaid or
converted or the date on which the Borrower failed to borrow, convert or
continue such Eurodollar Loan. A certificate as to any additional amount payable
under this Section 2.19 submitted to the Borrower by any Lender (with a copy to
the Administrative Agent) shall be conclusive, absent manifest error.
Section 2.20 Taxes.
(a) Any and all payments by or on account of any obligation of
the Borrower hereunder shall be made free and clear of and without deduction for
any Indemnified Taxes or Other Taxes; provided, however, that if the Borrower
shall be required to deduct any Indemnified Taxes or 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, any Lender or the
Issuing Bank (as the case may be) shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the Borrower shall
make such deductions and (iii) the Borrower shall pay the full amount deducted
to the relevant Governmental Authority in accordance with applicable law.
(b) In addition, the Borrower shall pay any Other Taxes to the
relevant Governmental Authority in accordance with applicable law.
(c) The Borrower shall indemnify the Administrative Agent,
each Lender and the Issuing Bank, within five (5) Business Days after written
demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
paid by the Administrative Agent, such Lender or the Issuing Bank, as the case
may be, on or with respect to any payment by or on account of any obligation of
the Borrower hereunder (including Indemnified Taxes or Other Taxes imposed or
asserted on or attributable to amounts payable under this Section) 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 the
Borrower by a Lender or the Issuing Bank, or by the Administrative Agent on its
own behalf or on behalf of a Lender or the Issuing Bank, shall be conclusive
absent manifest error.
(d) As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the 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) Any Foreign Lender that is entitled to an exemption from
or reduction of withholding tax under the Code or any treaty to which the United
States is a party, with respect to payments under this Agreement shall deliver
to the Borrower (with a copy to the Administrative Agent), at the time or times
prescribed by applicable law, such properly completed and executed documentation
prescribed by applicable law or reasonably requested by the Borrower as will
permit such payments to be made without withholding or at a reduced rate.
Without limiting the generality of the foregoing, each Foreign Lender agrees
that it will deliver to the Administrative Agent and the Borrower (or in the
case of a Participant, to the Lender from which the related participation shall
have been purchased), as appropriate, two (2) duly completed copies of (i)
Internal Revenue Service Form W-8 ECI, or any successor form thereto, certifying
that the payments received from the Borrower hereunder are effectively connected
with such Foreign Lender's conduct of a trade or business in the United States;
or (ii) Internal Revenue Service Form W-8 BEN, or any successor form thereto,
certifying that such Foreign Lender is entitled to benefits under an income tax
treaty to which the United States is a party which reduces the rate of
withholding tax on payments of interest; or (iii) Internal Revenue Service Form
W-8 BEN, or any successor form prescribed by the Internal Revenue Service,
together with a certificate (A) establishing that the payment to the Foreign
Lender qualifies as "portfolio interest" exempt from U.S. withholding tax under
Code section 871(h) or 881(c), and (B) stating that (1) the Foreign Lender is
not a bank for purposes of Code section 881(c)(3)(A), or the obligation of the
Borrower hereunder is not, with respect to such Foreign Lender, a loan agreement
entered into in the ordinary course of its trade or business, within the meaning
of that section; (2) the Foreign Lender is not a 10% shareholder of the Borrower
within the meaning of Code section 871(h)(3) or 881(c)(3)(B); and (3) the
Foreign Lender is not a controlled foreign corporation that is related to the
Borrower within the meaning of Code section 881(c)(3)(C); or (iv) such other
Internal Revenue Service forms as may be applicable to the Foreign Lender,
including Forms W-8 IMY or W-8 EXP. Each such Foreign Lender shall deliver to
the Borrower and the Administrative Agent such forms on or before the date that
it becomes a party to this Agreement (or in the case of a Participant, on or
before the date such Participant purchases the related participation). In
addition, each such Foreign Lender shall deliver such forms promptly upon the
obsolescence or invalidity of any form previously delivered by such Foreign
Lender. Each such Foreign Lender shall promptly notify the Borrower and the
Administrative Agent at any time that it determines that it is no longer in a
position to provide any previously delivered certificate to the Borrower (or any
other form of certification adopted by the Internal Revenue Service for such
purpose).
Section 2.21 Payments Generally; Pro Rata Treatment;
Sharing of Set-offs.
(a) The Borrower shall make each payment required to be made
by it hereunder (whether of principal, interest, fees or reimbursement of LC
Disbursements, or of amounts payable under Section 2.19 2.18, 2.19 or 2.20, or
otherwise) prior to 12:00 noon, on the date when due, in immediately available
funds, free and clear of any defenses, rights of set-off, counterclaim, or
withholding or deduction of taxes. Any amounts received after such time on any
date may, in the discretion of the Administrative Agent, be deemed to have been
received on the next succeeding Business Day for purposes of calculating
interest thereon. All such payments shall be made to the Administrative Agent at
the Payment Office, except payments to be made directly to the Issuing Bank or
Swingline Lender as expressly provided herein and except that payments pursuant
to Sections 2.18, 2.19 and 2.20 and 10.3 shall be made directly to the Persons
entitled thereto. The Administrative Agent shall distribute any such payments
received by it for the account of any other Person to the appropriate recipient
promptly following receipt thereof. If any payment hereunder shall be due on a
day that is not a Business Day, the date for payment shall be extended to the
next succeeding Business Day, and, in the case of any payment accruing interest,
interest thereon shall be made payable for the period of such extension. All
payments hereunder shall be made in Dollars.
(b) If at any time insufficient funds are received by and
available to the Administrative Agent to pay fully all amounts of principal,
unreimbursed LC Disbursements, interest and fees then due hereunder, such funds
shall be applied (i) first, towards payment of interest and fees then due
hereunder, ratably among the parties entitled thereto in accordance with the
amounts of interest and fees then due to such parties, and (ii) second, towards
payment of principal and unreimbursed LC Disbursements then due hereunder,
ratably among the parties entitled thereto in accordance with the amounts of
principal and unreimbursed LC Disbursements then due to such parties.
(c) If any Lender shall, by exercising any right of set-off or
counterclaim or otherwise, obtain payment in respect of any principal of or
interest on any of its Revolving Loans or participations in LC Disbursements or
Swingline Loans that would result in such Lender receiving payment of a greater
proportion of the aggregate amount of its Revolving Loans and participations in
LC Disbursements and Swingline Loans and accrued interest thereon than the
proportion received by any other Lender, then the Lender receiving such greater
proportion shall purchase (for cash at face value) participations in the
Revolving Loans and participations in LC Disbursements and Swingline Loans of
other Lenders to the extent necessary so that the benefit of all such payments
shall be shared by the Lenders ratably in accordance with the aggregate amount
of principal of and accrued interest on their respective Revolving Loans and
participations in LC Disbursements and Swingline Loans; provided, that (i) if
any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the
purchase price restored to the extent of such recovery, without interest, and
(ii) the provisions of this paragraph shall not be construed to apply to any
payment made by the Borrower pursuant to and in accordance with the express
terms of this Agreement or any payment obtained by a Lender as consideration for
the assignment of or sale of a participation in any of its Loans or
participations in LC Disbursements or Swingline Loans to any assignee or
participant, other than to the Borrower or any Subsidiary or Affiliate thereof
(as to which the provisions of this paragraph shall apply). The Borrower
consents to the foregoing and agrees, to the extent it may effectively do so
under applicable law, that any Lender acquiring a participation pursuant to the
foregoing arrangements may exercise against the Borrower rights of set-off and
counterclaim with respect to such participation as fully as if such Lender were
a direct creditor of the Borrower in the amount of such participation.
(d) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to the
Administrative Agent for the account of the Lenders or the Issuing Bank
hereunder that the Borrower will not make such payment, the Administrative Agent
may assume that the 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 Bank, as the case may be, the amount or amounts due. In such event,
if the Borrower has not in fact made such payment, then each of the Lenders or
the Issuing Bank, as the case may be, severally agrees to repay to the
Administrative Agent forthwith on demand the amount so distributed to such
Lender or Issuing Bank 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 Effective Rate
and a rate determined by the Administrative Agent in accordance with banking
industry rules on interbank compensation.
(e) If any Lender shall fail to make any payment required to
be made by it pursuant to Section 2.6(b), 2.8(b), 2.21(d), 2.23(d), or 10.3(d),
then the Administrative Agent may, in its discretion (notwithstanding any
contrary provision hereof), apply any amounts thereafter received by the
Administrative Agent for the account of such Lender to satisfy such Lender's
obligations under such Sections until all such unsatisfied obligations are fully
paid.
Section 2.22 Mitigation of Obligations; Replacement of
Lenders.
(a) If any Lender requests compensation under Section 2.18, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 2.20,
then such Lender shall use reasonable efforts to designate a different lending
office for funding or booking its Loans hereunder or to assign its rights and
obligations hereunder to another of its offices, branches or affiliates, if, in
the sole judgment of such Lender, such designation or assignment (i) would
eliminate or reduce amounts payable under Section 2.18 or Section 2.20, as the
case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such
Lender. The Borrower hereby agrees to pay all costs and expenses incurred by any
Lender in connection with such designation or assignment.
(b) If any Lender requests compensation under Section 2.18, or
if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority of the account of any Lender pursuant to Section 2.20, or
if any Lender defaults in its obligation to fund Loans hereunder, then the
Borrower may, at its sole expense and effort, upon notice to such Lender and the
Administrative Agent, require such Lender to assign and delegate, without
recourse (in accordance with and subject to the restrictions set forth in
Section 10.4(b)) all its interests, rights and obligations under this Agreement
to an assignee that shall assume such obligations (which assignee may be another
Lender); provided, that (i) the Borrower shall have received the prior written
consent of the Administrative Agent, which consent shall not be unreasonably
withheld, (ii) such Lender shall have received payment of an amount equal to the
outstanding principal amount of all Loans owed to it, accrued interest thereon,
accrued fees and all other amounts payable to it hereunder, from the assignee
(in the case of such outstanding principal and accrued interest) and from the
Borrower (in the case of all other amounts) and (iii) in the case of a claim for
compensation under Section 2.18 or payments required to be made pursuant to
Section 2.20, such assignment will result in a reduction in future claims for
such compensation or payments. A Lender shall not be required to make any such
assignment and delegation if, prior thereto, as a result of a waiver by such
Lender or otherwise, the circumstances entitling the Borrower to require such
assignment and delegation cease to apply.
Section 2.23 Letters of Credit.
(a) During the Availability Period, the Issuing Bank, in
reliance upon the agreements of the other Lenders pursuant to Section 2.23(d),
agrees to issue, at the request of the Borrower, Letters of Credit for the
account of the Borrower on the terms and conditions hereinafter set forth;
provided, however, that (i) each Letter of Credit shall expire on the earlier of
(A) the date one year after the date of issuance of such Letter of Credit (or in
the case of any renewal or extension thereof, one year after such renewal or
extension) and (B) the date that is five (5) Business Days prior to the
Revolving Commitment Termination Date; (ii) each Letter of Credit shall be in a
stated amount of at least $250,000; and (iii) the Borrower may not request any
Letter of Credit, if, after giving effect to such issuance (A) the aggregate LC
Exposure would exceed the LC Commitment or (B) the aggregate LC Exposure, plus
the aggregate outstanding Revolving Loans and Swing Loans of all Lenders would
exceed the Aggregate Revolving Commitment Amount. 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 Bank without recourse a
participation in such Letter of Credit equal to such Lender's Pro Rata Share of
the aggregate amount available to be drawn under such Letter of Credit. Each
issuance of a Letter of Credit shall be deemed to utilize the Revolving
Commitment of each Lender by an amount equal to the amount of such
participation.
(b) To request the issuance of a Letter of Credit (or any
amendment, renewal or extension of an outstanding Letter of Credit), the
Borrower shall give the Issuing Bank and the Administrative Agent irrevocable
written notice at least three (3) Business Days prior to the requested date of
such issuance specifying the date (which shall be a Business Day) such Letter of
Credit is to be issued (or amended, extended or renewed, as the case may be),
the expiration date of such Letter of Credit, the amount of such Letter of
Credit, the name and address of the beneficiary thereof and such other
information as shall be necessary to prepare, amend, renew or extend such Letter
of Credit. In addition to the satisfaction of the conditions in Article III, the
issuance of such Letter of Credit (or any amendment which increases the amount
of such Letter of Credit) will be subject to the further conditions that such
Letter of Credit shall be in such form and contain such terms as the Issuing
Bank shall approve and that the Borrower shall have executed and delivered any
additional applications, agreements and instruments relating to such Letter of
Credit as the Issuing Bank shall reasonably require; provided, however, that in
the event of any conflict between such applications, agreements or instruments
and this Agreement, the terms of this Agreement shall control.
(c) At least two Business Days prior to the issuance of any
Letter of Credit, the Issuing Bank will confirm with the Administrative Agent
(by telephone or in writing) that the Administrative Agent has received such
notice and if not, the Issuing Bank will provide the Administrative Agent with a
copy thereof. Unless the Issuing Bank has received notice from the
Administrative Agent on or before the Business Day immediately preceding the
date the Issuing Bank is to issue the requested Letter of Credit (1) directing
the Issuing Bank not to issue the Letter of Credit because such issuance is not
then permitted hereunder because of the limitations set forth in Section 2.23(a)
or that one or more conditions specified in Article III are not then satisfied,
then, subject to the terms and conditions hereof, the Issuing Bank shall, on the
requested date, issue such Letter of Credit in accordance with the Issuing
Bank's usual and customary business practices.
(d) The Issuing Bank shall examine all documents purporting to
represent a demand for payment under a Letter of Credit promptly following its
receipt thereof. The Issuing Bank shall notify the Borrower and the
Administrative Agent of such demand for payment and whether the Issuing Bank has
made or will make a LC Disbursement thereunder; provided, however, that any
failure to give or delay in giving such notice shall not relieve the Borrower of
its obligation to reimburse the Issuing Bank and the Lenders with respect to
such LC Disbursement. The Borrower shall be irrevocably and unconditionally
obligated to reimburse the Issuing Bank for any LC Disbursements paid by the
Issuing Bank in respect of such drawing, without presentment, demand or other
formalities of any kind. Unless the Borrower shall have notified the Issuing
Bank and the Administrative Agent prior to 11:00 a.m. on the Business Day
immediately prior to the date on which such drawing is honored that the Borrower
intends to reimburse the Issuing Bank for the amount of such drawing in funds
other than from the proceeds of Revolving Loans, the Borrower shall be deemed to
have timely given a Notice of Revolving Borrowing to the Administrative Agent
requesting the Lenders to make a Base Rate Borrowing on the date on which such
drawing is honored in an exact amount due to the Issuing Bank; provided,
however, that for purposes solely of such Borrowing, the conditions precedents
set forth in Section 3.2 hereof shall not be applicable. The Administrative
Agent shall notify the Lenders of such Borrowing in accordance with Section 2.3,
and each Lender shall make the proceeds of its Base Rate Loan included in such
Borrowing available to the Administrative Agent for the account of the Issuing
Bank in accordance with Section 2.7. The proceeds of such Borrowing shall be
applied directly by the Administrative Agent to reimburse the Issuing Bank for
such LC Disbursement.
(e) If for any reason a Base Rate Borrowing may not be (as
determined in the sole discretion of the Administrative Agent), or is not, made
in accordance with the foregoing provisions, then each Lender (other than the
Issuing Bank) shall be obligated to fund the participation that such Lender
purchased pursuant to subsection (a) in an amount equal to its Pro Rata Share of
such LC Disbursement on and as of the date which such Base Rate Borrowing should
have occurred. Each Lender's obligation to fund its participation shall be
absolute and unconditional and shall not be affected by any circumstance,
including without limitation (i) any setoff, counterclaim, recoupment, defense
or other right that such Lender or any other Person may have against the Issuing
Bank or any other Person for any reason whatsoever, (ii) the existence of a
Default or an Event of Default or the termination of the Aggregate Revolving
Commitments, (iii) any adverse change in the condition (financial or otherwise)
of the Borrower or any of its Subsidiaries, (iv) any breach of this Agreement by
the Borrower or any other Lender, (v) any amendment, renewal or extension of any
Letter of Credit or (vi) any other circumstance, happening or event whatsoever,
whether or not similar to any of the foregoing. On the date that such
participation is required to be funded, each Lender shall promptly transfer, in
immediately available funds, the amount of its participation to the
Administrative Agent for the account of the Issuing Bank. Whenever, at any time
after the Issuing Bank has received from any such Lender the funds for its
participation in a LC Disbursement, the Issuing Bank (or the Administrative
Agent on its behalf) receives any payment on account thereof, the Administrative
Agent or the Issuing Bank, as the case may be, will distribute to such Lender
its Pro Rata Share of such payment; provided, however, that if such payment is
required to be returned for any reason to the Borrower or to a trustee,
receiver, liquidator, custodian or similar official in any bankruptcy
proceeding, such Lender will return to the Administrative Agent or the Issuing
Bank any portion thereof previously distributed by the Administrative Agent or
the Issuing Bank to it.
(f) To the extent that any Lender shall fail to pay any amount
required to be paid pursuant to paragraph (d) of this Section 2.23 on the due
date therefor, such Lender shall pay interest to the Issuing Bank (through the
Administrative Agent) on such amount from such due date to the date such payment
is made at a rate per annum equal to the Federal Funds Rate; provided, however,
that if such Lender shall fail to make such payment to the Issuing Bank within
three (3) Business Days of such due date, then, retroactively to the due date,
such Lender shall be obligated to pay interest on such amount at the Default
Rate.
(g) If any Event of Default shall occur and be continuing, on
the Business Day that the Borrower receives notice from the Administrative Agent
or the Required Lenders demanding the deposit of cash collateral pursuant to
this paragraph, the Borrower shall deposit in an account with the Administrative
Agent, in the name of the Administrative Agent and for the benefit of the
Lenders, an amount in cash equal to the LC Exposure as of such date plus any
accrued and unpaid interest thereon; provided, that the obligation to deposit
such cash collateral shall become effective immediately, and such deposit shall
become immediately due and payable, without demand or notice of any kind, upon
the occurrence of any Event of Default with respect to the Borrower described in
clause (g) or (h) of Section 8.1. Such deposit shall be held by the
Administrative Agent as collateral for the payment and performance of the
obligations of the Borrower under this Agreement. The Administrative Agent shall
have exclusive dominion and control, including the exclusive right of
withdrawal, over such account. Borrower agrees to execute any documents and/or
certificates to effectuate the intent of this paragraph. Other than any interest
earned on the investment of such deposits, which investments shall be made at
the option and sole discretion of the Administrative Agent and at the Borrower's
risk and expense, such deposits shall not bear interest. Interest and profits,
if any, on such investments shall accumulate in such account. Moneys in such
account shall applied by the Administrative Agent to reimburse the Issuing Bank
for LC Disbursements for which it had not been reimbursed and to the extent so
applied, shall be held for the satisfaction of the reimbursement obligations of
the Borrower for the LC Exposure at such time or, if the maturity of the Loans
has been accelerated, with the consent of the Required Lenders, be applied to
satisfy other obligations of the Borrower under this Agreement. If the Borrower
is required to provide an amount of cash collateral hereunder as a result of the
occurrence of an Event of Default, such amount (to the extent not so applied as
aforesaid) shall be returned to the Borrower with three Business Days after all
Events of Default have been cured or waived.
(h) Promptly following the end of each fiscal quarter, the
Issuing Bank shall deliver (through the Administrative Agent) to each Lender and
the Borrower a report describing the aggregate Letters of Credit outstanding at
the end of such fiscal quarter. Upon the request of any Lender from time to
time, the Issuing Bank shall deliver to such Lender any other information
reasonably requested by such Lender with respect to each Letter of Credit then
outstanding.
(i) The Borrower's obligation to reimburse LC Disbursements
hereunder shall be absolute, unconditional and irrevocable and shall be
performed strictly in accordance with the terms of this Agreement under all
circumstances whatsoever and irrespective of any of the following circumstances:
(i) Any lack of validity or enforceability
of any Letter of Credit or this Agreement;
(ii) The existence of any claim, set-off, defense or
other right which the Borrower or any Subsidiary or Affiliate
of the Borrower may have at any time against a beneficiary or
any transferee of any Letter of Credit (or any Persons or
entities for whom any such beneficiary or transferee may be
acting), any Lender (including the Issuing Bank) or any other
Person, whether in connection with this Agreement or the
Letter of Credit or any document related hereto or thereto or
any unrelated transaction;
(iii) Any draft or other document presented under a
Letter of Credit proving to be forged, fraudulent or invalid
in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) Payment by the Issuing Bank under a Letter of
Credit against presentation of a draft or other document to
the Issuing Bank that does not comply with the terms of such
Letter of Credit;
(v) Any other event or circumstance whatsoever,
whether or not similar to any of the foregoing, that might,
but for the provisions of this Section, constitute a legal or
equitable discharge of, or provide a right of setoff against,
the Borrower's obligations hereunder; or
(vi) The existence of a Default or an Event of
Default.
Neither the Administrative Agent, the Issuing Bank, the Lenders nor any Related
Party of any of the foregoing shall have any liability or responsibility by
reason of or in connection with the issuance or transfer of any Letter of Credit
or any payment or failure to make any payment thereunder (irrespective of any of
the circumstances referred to above), or any error, omission, interruption, loss
or delay in transmission or delivery of any draft, notice or other communication
under or relating to any Letter of Credit (including any document required to
make a drawing thereunder), any error in interpretation of technical terms or
any consequence arising from causes beyond the control of the Issuing Bank;
provided, that the foregoing shall not be construed to excuse the Issuing Bank
from liability to the Borrower to the extent of any direct damages (as opposed
to consequential damages, claims in respect of which are hereby waived by the
Borrower to the extent permitted by applicable law) suffered by the Borrower
that are caused by the Issuing Bank's failure to exercise care when determining
whether drafts or other documents presented under a Letter of Credit comply with
the terms thereof. The parties hereto expressly agree, that in the absence of
gross negligence or willful misconduct on the part of the Issuing Bank (as
finally determined by a court of competent jurisdiction), the Issuing Bank shall
be deemed to have exercised care in each such determination. In furtherance of
the foregoing and without limiting the generality thereof, the parties agree
that, with respect to documents presented that appear on their face to be in
substantial compliance with the terms of a Letter of Credit, the Issuing Bank
may, in its sole discretion, either accept and make payment upon such documents
without responsibility for further investigation, regardless of any notice or
information to the contrary, or refuse to accept and make payment upon such
documents if such documents are not in strict compliance with the terms of such
Letter of Credit.
(j) Each Letter of Credit shall be subject to the Uniform
Customs and Practices for Documentary Credits (1993 Revision), International
Chamber of Commerce Publication No. 500, as the same may be amended from time to
time, and, to the extent not inconsistent therewith, the governing law of this
Agreement set forth in Section 10.5.
ARTICLE III
CONDITIONS PRECEDENT TO LOANS AND LETTERS OF CREDIT
Section 3.1 Conditions To Effectiveness. The obligations of
the Lenders (including the Swingline Lender) to make initial Loans hereunder and
the obligation of the Issuing Bank to issue any initial Letter of Credit
hereunder shall not become effective until the date on which each of the
following conditions is satisfied (or waived in accordance with Section 10.2).
(a) The Administrative Agent shall have received all fees and
other amounts due and payable on or prior to the Closing Date, including
reimbursement or payment of all out-of-pocket expenses (including reasonable
fees, charges and disbursements of counsel to the Administrative Agent) required
to be reimbursed or paid by the Borrower hereunder, under any other Loan
Document and under any agreement with the Administrative Agent or SunTrust
Equitable Securities Corporation, as Lead Arranger.
(b) The Administrative Agent (or its counsel) shall have
received the following:
(i) a counterpart of this Agreement signed by or on
behalf of each party hereto or written evidence satisfactory
to the Administrative Agent (which may include telecopy
transmission of a signed signature page of this Agreement)
that such party has signed a counterpart of this Agreement;
(ii) if requested by any Lender, the duly
executed Notes payable to such Lender;
(iii) the duly executed Subsidiary Guaranty
Agreement and Indemnity and Contribution Agreement;
(iv) a certificate of the Secretary or Assistant
Secretary of each Loan Party, attaching and certifying copies
of its bylaws and of the resolutions of its boards of
directors, authorizing the execution, delivery and performance
of the Loan Documents to which it is a party and certifying
the name, title and true signature of each officer of such
Loan Party executing the Loan Documents to which it is a
party;
(v) certified copies of the articles of incorporation
or other charter documents of each Loan Party, together with
certificates of good standing or existence, as may be
available from the Secretary of State of the jurisdiction of
incorporation or formation of such Loan Party and each other
jurisdiction as requested by the Administrative Agent;
(vi) a favorable written opinion of Powell Goldstein
Frazer & Murphy LLP counsel to the Loan Parties and Daniel T.
Cronk, General Counsel of the Borrower, addressed to the
Administrative Agent and each of the Lenders, and covering
such matters relating to the Loan Parties, the Loan Documents
and the transactions contemplated therein as the
Administrative Agent or the Required Lenders shall reasonably
request;
(vii) a certificate, dated the Closing Date and
signed by a Responsible Officer, confirming compliance with
the conditions set forth in paragraphs (a), (b) and (c) of
Section 3.2;
(viii) duly executed Notices of Borrowing, if
applicable;
(ix) a duly executed funds disbursement agreement;
(x) certified copies of all consents, approvals,
authorizations, registrations and filings and orders required
or advisable to be made or obtained under any Requirement of
Law, or by any Contractual Obligation of each Loan Party, in
connection with the execution, delivery, performance, validity
and enforceability of the Loan Documents or any of the
transactions contemplated thereby, and such consents,
approvals, authorizations, registrations, filings and orders
shall be in full force and effect and all applicable waiting
periods shall have expired;
(xi) copies of the consolidated financial statements
for Borrower and its Subsidiaries for the fiscal years ending
1998, 1999 and 2000, including balance sheets, statements of
income and statements of cash flow audited by independent
public accountants of recognized national standing and
prepared in conformity with GAAP and such other financial
information as the Administrative Agent may request;
(xii) certificates of insurance issued on behalf of
insurers of the Loan Parties, describing in reasonable detail
the types and amounts of insurance (property and liability)
maintained by the Borrower and all guarantors, naming
Administrative Agent as additional insured;
(xiii) all other documents and information as the
Administrative Agent reasonably requests.
Section 3.2 Each Credit Event. The obligation of each Lender
to make a Loan on the occasion of any Borrowing and of the Issuing Bank to
issue, amend, renew or extend any Letter of Credit is subject to the
satisfaction of the following conditions:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of such Letter of
Credit, as applicable, no Default or Event of Default shall exist or would
result; and
(b) all representations and warranties of each Loan Party set
forth in the Loan Documents shall be true and correct in all material respects
on and as of the date of such Borrowing or the date of issuance, amendment,
extension or renewal of such Letter of Credit, in each case before and after
giving effect thereto or, if such representations and warranties relate solely
to an earlier date, were true and correct as of such earlier date;
(c) since the date of the most recent financial statements of
the Borrower described in Section 4.4 or delivered pursuant to Section 5.1(a),
there shall have been no change which has had or could reasonably be expected to
have a Material Adverse Effect; and
(d) the Administrative Agent shall have received such other
documents, certificates, information or legal opinions as the Administrative
Agent or the Required Lenders may reasonably request, all in form and substance
reasonably satisfactory to the Administrative Agent or the Required Lenders.
Each Borrowing and each issuance, amendment, extension or
renewal of any Letter of Credit shall be deemed to constitute a representation
and warranty by the Borrower on the date thereof as to the matters specified in
paragraphs (a), (b) and (c) of this Section 3.2.
Section 3.3 Delivery of Documents. All of the Loan Documents,
certificates, legal opinions and other documents and papers referred to in this
Article III, unless otherwise specified, shall be delivered to the
Administrative Agent for the account of each of the Lenders and, except for the
Notes, in sufficient counterparts or copies for each of the Lenders and shall be
in form and substance satisfactory in all respects to the Administrative Agent.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants to the Administrative
Agent and each Lender as follows:
Section 4.1 Existence; Power. The Borrower and each of its
Subsidiaries (i) is duly organized, validly existing and in good standing as a
corporation under the laws of the jurisdiction of its organization, (ii) has all
requisite power and authority to carry on its business as now conducted, and
(iii) is duly qualified to do business, and is in good standing, in each
jurisdiction where such qualification is required, except where a failure to be
so qualified could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.2 Organizational Power; Authorization. The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party are within such Loan Party's organizational powers and have
been duly authorized by all necessary organizational, and if required,
shareholder action. This Agreement has been duly executed and delivered by the
Borrower, and constitutes, and each other Loan Document to which any Loan Party
is a party, when executed and delivered by such Loan Party, will constitute,
valid and binding obligations of the Borrower or such Loan Party (as the case
may be), enforceable against it in accordance with their respective terms,
except as may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting the enforcement of creditors' rights
generally and by general principles of equity.
Section 4.3 Governmental Approvals; No Conflicts. The
execution, delivery and performance by the Borrower of this Agreement, and by
each Loan Party of the other Loan Documents to which it is a party (a) do not
require any consent or approval of, registration or filing with, or any action
by, any Governmental Authority, except those as have been obtained or made and
are in full force and effect, (b) will not violate any applicable law, rule or
regulation or the charter, bylaws or other organizational documents of the
Borrower or any of its Subsidiaries or any judgment, order or ruling of any
Governmental Authority, (c) will not violate or result in a default under any
indenture, material agreement or other material instrument binding on the
Borrower or any of its Subsidiaries or any of its assets or give rise to a right
thereunder to require any payment to be made by the Borrower or any of its
Subsidiaries and (d) will not result in the creation or imposition of any Lien
on any asset of the Borrower or any of its Subsidiaries, except Liens (if any)
created under the Loan Documents.
Section 4.4 Financial Statements. The Borrower has furnished
to each Lender the audited consolidated balance sheet of the Borrower and its
Subsidiaries as of June 4, 2000 and the related consolidated statements of
income, shareholders' equity and cash flows for the fiscal year then ended
prepared by KPMG L.L.P. Such financial statements fairly present the
consolidated financial condition of the Borrower and its Subsidiaries as of such
dates and the consolidated results of operations for such periods in conformity
with GAAP consistently applied. Since June 4, 2000, there have been no changes
with respect to the Borrower and its Subsidiaries which have had or could
reasonably be expected to have, singly or in the aggregate, a Material Adverse
Effect.
Section 4.5 Litigation and Environmental Matters.
(a) No litigation, investigation or proceeding of or before
any arbitrators or Governmental Authorities is pending against or, to the
knowledge of the Borrower, threatened against or affecting the Borrower or any
of its Subsidiaries (i) as to which there is a reasonable possibility of an
adverse determination that could reasonably be expected to have, either
individually or in the aggregate, a Material Adverse Effect or (ii) which in any
manner draws into question the validity or enforceability of this Agreement or
any other Loan Document.
(b) Neither the Borrower nor any of its Subsidiaries (i) has
failed to comply with any Environmental Law or to obtain, maintain or comply
with any permit, license or other approval required under any Environmental Law,
(ii) has become subject to any Environmental Liability, (iii) has received
notice of any claim with respect to any Environmental Liability or (iv) knows of
any basis for any Environmental Liability, except for any failure or
Environmental Liability that would not have a Material Adverse Effect.
Section 4.6 Compliance with Laws and Agreements. The Borrower
and each Subsidiary is in compliance with (a) all applicable laws, rules,
regulations, judgments, orders and rulings of any Governmental Authority, and
(b) all indentures, agreements or other instruments binding upon it or its
properties, except in either case where non-compliance, either singly or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 4.7 Investment Company Act, Etc. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company", or is "controlled"
by an "investment company", as such terms are defined in, or subject to
regulation under, the Investment Company Act of 1940, as amended, (b) a "holding
company" as defined in, or subject to regulation under, the Public Utility
Holding Company Act of 1935, as amended or (c) otherwise subject to any other
regulatory scheme limiting its ability to incur debt.
Section 4.8 Taxes. The Borrower and its Subsidiaries and each
other Person for whose taxes the Borrower or any Subsidiary could become liable
have timely filed or caused to be filed all Federal income tax returns and all
other material tax returns that are required to be filed by them, and have paid
all taxes shown to be due and payable on such returns or on any assessments made
against it or its property and all other taxes, fees or other charges imposed on
it or any of its property by any Governmental Authority, except (i) to the
extent the failure to do so would not have a Material Adverse Effect or (ii)
where the same are currently being contested in good faith by appropriate
proceedings and for which the Borrower or such Subsidiary, as the case may be,
has set aside on its books adequate reserves in accordance with GAAP. As of the
Closing Date, the charges, accruals and reserves on the books of the Borrower
and its Subsidiaries in respect of such taxes are adequate, and no tax
liabilities that could be materially in excess of the amount so provided are
anticipated.
Section 4.9 Margin Regulations. None of the proceeds of any of
the Loans or Letters of Credit will be used for "purchasing" or "carrying" any
"margin stock" with the respective meanings of each of such terms under
Regulation U as now and from time to time hereafter in effect or for any purpose
that violates the provisions of the applicable Margin Regulations.
Section 4.10 ERISA. No ERISA Event has occurred or is
reasonably expected to occur that, when taken together with all other such ERISA
Events for which liability is reasonably expected to occur, could reasonably be
expected to result in a Material Adverse Effect. The present value of all
accumulated benefit obligations under each Plan (based on the assumptions used
for purposes of Statement of Financial Standards No. 87) did not, as of the date
of the most recent financial statements reflecting such amounts, exceed the fair
market value of the assets of such Plan, and the present value of all
accumulated benefit obligations of all underfunded Plans (based on the
assumptions used for purposes of Statement of Financial Standards No. 87) did
not, as of the date of the most recent financial statements reflecting such
amounts, exceed the fair market value of the assets of all such underfunded
Plans.
Section 4.11 Ownership of Property.
(a) As of the Closing Date, each of the Borrower and its
Subsidiaries has good title to, or valid leasehold or other appropriate legal
interests in, all of its real and personal property material to the operation of
its business, free and clear of any Liens except Permitted Liens.
(b) Each of the Borrower and its Subsidiaries owns, or is
licensed, or otherwise has the right, to use, all patents, trademarks, service
marks, trade names, copyrights, franchises, licenses, and other intellectual
property material to its business, and the use thereof by the Borrower and its
Subsidiaries does not infringe on the rights of any other Person, except for any
such infringements that, individually or in the aggregate, would not have a
Material Adverse Effect.
Section 4.12 Disclosure. The Borrower has disclosed to the
Lenders all agreements, instruments, and corporate or other restrictions to
which the Borrower or any of its Subsidiaries is subject, and all other matters
known to any of them, that, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect. Neither the Information
Memorandum nor any of the reports (including without limitation all reports that
the Borrower is required to file with the Securities and Exchange Commission),
financial statements, certificates or other information furnished by or on
behalf of the Borrower to the Administrative Agent or any Lender or anyone on
their behalf in connection with the negotiation or syndication of this Agreement
or any other Loan Document or delivered hereunder or thereunder (as modified or
supplemented by any other information so furnished) contains any material
misstatement of fact or omits to state any material fact necessary to make the
statements therein, taken as a whole, in light of the circumstances under which
they were made, not misleading.
Section 4.13 Labor Relations. There are no strikes, lockouts
or other material labor disputes, or grievances against the Borrower or any of
its Subsidiaries, or, to the Borrower's knowledge, threatened against or
affecting the Borrower or any of its Subsidiaries, and no significant unfair
labor practice, charges or grievances are pending against the Borrower or any of
its Subsidiaries, or to the Borrower's knowledge, threatened against any of them
before any Governmental Authority. All payments due from the Borrower or any of
its Subsidiaries pursuant to the provisions of any collective bargaining
agreement have been paid or accrued as a liability on the books of the Borrower
or any such Subsidiary, except where the failure to do so could not reasonably
be expected to have a Material Adverse Effect.
Section 4.14 Subsidiaries. As of the Closing Date, Schedule
4.14 sets forth the name of, the ownership interest of the Borrower in, the
jurisdiction of incorporation or organization of, and the type of, each
Subsidiary and identifies each Material Subsidiary that is a Subsidiary Loan
Party.
ARTICLE V
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of and interest on any Loan or any
fee or any LC Disbursement remains unpaid or any Letter of Credit remains
outstanding:
Section 5.1 Financial Statements and Other Information.
The Borrower will deliver to the Administrative Agent and each Lender:
(a) as soon as available and in any event within 90 days after
the end of each fiscal year of Borrower, a copy of the annual audited report for
such fiscal year for the Borrower and its Subsidiaries, containing consolidated
balance sheets of the Borrower and its Subsidiaries as of the end of such fiscal
year and the related consolidated statements of income, stockholders' equity and
cash flows (together with all footnotes thereto) of the Borrower and its
Subsidiaries for such fiscal year, setting forth in each case in comparative
form the figures for the previous fiscal year, all in reasonable detail and
reported on by KPMG L.L.P. or other independent public accountants of nationally
recognized standing (without a "going concern" or like qualification, exception
or explanation and without any qualification or exception as to scope of such
audit) to the effect that such financial statements present fairly in all
material respects the financial condition and the results of operations of the
Borrower and its Subsidiaries for such fiscal year on a consolidated basis in
accordance with GAAP and that the examination by such accountants in connection
with such consolidated financial statements has been made in accordance with
generally accepted auditing standards;
(b) as soon as available and in any event within 45 days after
the end of each of the first three fiscal quarters of each fiscal year of the
Borrower, an unaudited consolidated balance sheet of the Borrower and its
Subsidiaries as of the end of such fiscal quarter and the related unaudited
consolidated statements of income and cash flows of the Borrower and its
Subsidiaries for such fiscal quarter and the then elapsed portion of such fiscal
year, setting forth in each case in comparative form the figures for the
corresponding quarter and the corresponding portion of Borrower's previous
fiscal year, all certified by the chief financial officer or treasurer of the
Borrower as presenting fairly in all material respects the financial condition
and results of operations of the Borrower and its Subsidiaries on a consolidated
basis in accordance with GAAP, subject to normal year-end audit adjustments and
the absence of footnotes;
(c) concurrently with the delivery of the financial statements
referred to in clauses (a) and (b) above, a certificate of the chief financial
officer or treasurer, (i) certifying as to whether there exists a Default or
Event of Default on the date of such certificate, and if a Default or an Event
of Default then exists, specifying the details thereof and the action which the
Borrower has taken or proposes to take with respect thereto, (ii) setting forth
in reasonable detail calculations demonstrating compliance with Article VI,
(iii) setting forth whether the Borrower is in compliance with Section 5.11 and
(iv) stating whether any change in GAAP or the application thereof has occurred
since the date of the Borrower's audited financial statements referred to in
Section 4.4 or which have been previously delivered hereunder and, if any change
has occurred, specifying the effect of such change on the financial statements
accompanying such certificate;
(d) concurrently with the delivery of the financial statements
referred to in clause (a) above, a certificate of the accounting firm that
reported on such financial statements stating whether they obtained any
knowledge during the course of their examination of such financial statements of
any Default or Event of Default (which certificate may be limited to the extent
required by accounting rules or guidelines);
(e) promptly after the same become publicly available, copies
of all periodic and other reports, proxy statements and other materials filed
with the Securities and Exchange Commission, or any Governmental Authority
succeeding to any or all functions of said Commission, or with any national
securities exchange, or distributed by the Borrower to its shareholders
generally, as the case may be; and
(f) promptly following any request therefor, such other
information regarding the results of operations, business affairs and financial
condition of the Borrower or any Subsidiary as the Administrative Agent or any
Lender may reasonably request.
Section 5.2 Notices of Material Events. The Borrower
will furnish to the Administrative
Agent and each Lender prompt written notice of the following:
(a) the occurrence of any Default or Event of Default;
(b) the filing or commencement of any action, suit or
proceeding by or before any arbitrator or Governmental Authority against or, to
the knowledge of the Borrower, affecting the Borrower or any Subsidiary which,
if adversely determined, could reasonably be expected to result in a Material
Adverse Effect;
(c) the occurrence of any event or any other development by
which the Borrower or any of its Subsidiaries (i) fails to comply with any
Environmental Law or to obtain, maintain or comply with any permit, license or
other approval required under any Environmental Law, (ii) becomes subject to any
Environmental Liability, (iii) receives notice of any claim with respect to any
Environmental Liability, or (iv) becomes aware of any basis for any
Environmental Liability, and in each of the preceding clauses, which
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect;
(d) the occurrence of any ERISA Event that alone, or together
with any other ERISA Events that have occurred, could reasonably be expected to
result in liability of the Borrower and its Subsidiaries in an aggregate amount
exceeding $2,500,000; and
(e) any other development that results in, or could
reasonably be expected to result in, a Material Adverse Effect.
(f) Each notice delivered under this Section shall be
accompanied by a written statement of a Responsible Officer setting forth the
details of the event or development requiring such notice and any action taken
or proposed to be taken with respect thereto.
Section 5.3 Existence; Conduct of Business. The Borrower will,
and will cause each of its Subsidiaries to, do or cause to be done all things
necessary to preserve, renew and maintain in full force and effect its legal
existence and its respective rights, licenses, permits, privileges, franchises,
patents, copyrights, trademarks and trade names material to the conduct of its
business and will continue to engage in the same business as presently conducted
or such other businesses that are reasonably related thereto; provided, however,
that nothing in this Section shall prohibit any merger, consolidation,
liquidation or dissolution permitted under Section 7.3.
Section 5.4 Compliance with Laws, Etc. The Borrower will, and
will cause each of its Subsidiaries to, comply with all laws, rules, regulations
and requirements of any Governmental Authority applicable to its business and
properties, including without limitation, all Environmental Laws, ERISA and
OSHA, except where the failure to do so, either individually or in the
aggregate, could not reasonably be expected to result in a Material Adverse
Effect.
Section 5.5 Payment of Obligations. The Borrower will, and
will cause each of its Subsidiaries to, pay and discharge at or before maturity,
all of its obligations and liabilities (including without limitation all tax
liabilities and claims that could result in a statutory Lien) before the same
shall become delinquent or in default, except where (i) (a) the validity or
amount thereof is being contested in good faith by appropriate proceedings and
(b) the Borrower or such Subsidiary has set aside on its books adequate reserves
with respect thereto in accordance with GAAP or (ii) the failure to make payment
thereof, when aggregated with all other such unpaid obligations and liabilities,
could not reasonably be expected to result in a Material Adverse Effect or (iii)
the failure to make payment thereof could not result in a statutory Lien.
Section 5.6 Books and Records. The Borrower will, and will
cause each of its Subsidiaries to, keep proper books of record and account in
which full, true and correct entries shall be made of all dealings and
transactions in relation to its business and activities to the extent necessary
to prepare the consolidated financial statements of Borrower in conformity with
GAAP.
Section 5.7 Visitation, Inspection, Etc. The Borrower will,
and will cause each of its Subsidiaries to, permit any representative of the
Administrative Agent or any Lender, to visit and inspect its properties, to
examine its books and records and to make copies and take extracts therefrom,
and to discuss its affairs, finances and accounts with any of its officers and
with its independent certified public accountants, all at such reasonable times
and as often as the Administrative Agent or any Lender may reasonably request
after reasonable prior notice to the Borrower; provided, however, if an Event of
Default has occurred and is continuing, no prior notice shall be required.
Section 5.8 Maintenance of Properties; Insurance. The Borrower
will, and will cause each of its Subsidiaries to, (a) keep and maintain good and
marketable title to all property subject to no Liens except Permitted Liens and
keep and maintain all property material to the conduct of its business in good
working order and condition, ordinary wear and tear except where the failure to
do so, either individually or it the aggregate, could not reasonably be expected
to result in a Material Adverse Effect and (b) maintain with financially sound
and reputable insurance companies, insurance with respect to its properties and
business, and the properties and business of its Subsidiaries, against loss or
damage of the kinds customarily insured against by companies in the same or
similar businesses operating in the same or similar locations.
Section 5.9 Use of Proceeds and Letters of Credit. The
Borrower will use the proceeds of all Loans to refinance existing Indebtedness
on the Closing Date, and, thereafter, to fund future permitted acquisitions, to
finance working capital needs, to finance capital expenditures and for other
general corporate purposes of the Borrower and its Subsidiaries. No part of the
proceeds of any Loan will be used, whether directly or indirectly, for any
purpose that would violate any rule or regulation of the Board of Governors of
the Federal Reserve System, including Regulations T, U or X. All Letters of
Credit will be used for general corporate purposes.
Section 5.10 Additional Subsidiaries. If any additional
Material Subsidiary is acquired or formed after the Closing Date, the Borrower
will, within thirty (30) days after such Material Subsidiary is acquired or
formed, notify the Administrative Agent and the Lenders thereof and will cause
such Material Subsidiary to become a Loan Party by executing agreements in the
form of Annex I to Exhibit D and Annex I to Exhibit E in form and substance
satisfactory to the Administrative Agent and the Required Lenders and will cause
such Material Subsidiary to deliver simultaneously therewith similar documents
applicable to such Material Subsidiary required under Section 3.1 as reasonably
requested by the Administrative Agent.
Section 5.11 Additional Guaranties. If at the end of any
fiscal quarter of the Borrower:
(a) the total assets of Subsidiaries that are not
Guarantors constitute more than ten
percent (10%) of the total assets of the Consolidated Companies, or
(b) the Consolidated Net Income of Subsidiaries that
are not Guarnators constitute more than ten percent (10%) of the Consolidated
Net Income of the Consolidated Companies,
then the Borrower shall (i) notify the Administrative Agent thereof in the
certificate delivered pursuant to Section 5.1(c) for such fiscal quarter and
(ii) within 15 days thereafter, cause the appropriate number of Subsidiaries to
become Guarantors (by execution of a joinder agreement to the Subsidiary
Guaranty in form and substance satisfactory to the Administrative Agent) such
that the statements set forth in clauses (a) and (b) above are not true.
ARTICLE VI
FINANCIAL COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on or any Loan
remains unpaid or any fee or any LC Disbursement remains unpaid or any Letter of
Credit remains outstanding:
Section 6.1 Minimum Fixed Charge Coverage Ratio. The
Consolidated Companies will maintain, as of the last day of each Fiscal Quarter,
through and including the Fiscal Quarter ending June 3, 2001, a Fixed Charge
Coverage Ratio of not less than 2.00:1.00, and for each Fiscal Quarter
thereafter, a Fixed Charge Coverage Ratio of not less than 2.50:1.00.
Section 6.2 Maximum Adjusted Total Debt to EBITDAR Ratio. The
Consolidated Companies will maintain, as of the end of each Fiscal Quarter, an
Adjusted Total Debt to EBITDAR Ratio of not greater than 3.00:1.00.
Section 6.3 Maximum Adjusted Total Debt to Adjusted Total
Capital Ratio. The Consolidated Companies will maintain, as of the end of each
Fiscal Quarter, an Adjusted Total Debt to Adjusted Total Capital Ratio of not
greater than 0.60:1.00.
ARTICLE VII
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as any Lender
has a Commitment hereunder or the principal of or interest on any Loan remains
unpaid or any fee or any LC Disbursement remains unpaid or any Letter of Credit
remains outstanding:
Section 7.1 Indebtedness. The Borrower will not,
and will not permit any of its Subsidiaries to, create, incur, assume or suffer
to exist any Indebtedness, except:
(a) Indebtedness created pursuant to the Loan Documents;
(b) Indebtedness existing on the date hereof and set forth on
Schedule 7.1 and extensions, renewals and replacements of any such Indebtedness
that do not increase the outstanding principal amount thereof (immediately prior
to giving effect to such extension, renewal or replacement) or shorten the
maturity or the weighted average life thereof;
(c) Indebtedness of the Borrower or any Subsidiary incurred to
finance the acquisition, construction or improvement of any fixed or capital
assets, including Capital Lease Obligations and any Indebtedness assumed in
connection with the acquisition of any such assets secured by a Lien on any such
assets prior to the acquisition thereof; provided, that such Indebtedness is
incurred prior to or within 180 days after such acquisition or the completion of
such construction or improvements or extensions, renewals, and replacements of
any such Indebtedness that do not increase the outstanding principal amount
thereof (immediately prior to giving effect to such extension, renewal or
replacement) or shorten the maturity or the weighted average life thereof;
provided, further, that the aggregate principal amount of such Indebtedness does
not exceed $5,000,000;
(d) Indebtedness of the Borrower owing to any Subsidiary and
of any Subsidiary owing to the Borrower or any other Subsidiary; provided,
however, that any such Indebtedness that is owed to a Subsidiary that is not a
Subsidiary Loan Party shall be subject to Section 7.4;
(e) Guaranties by the Borrower of Indebtedness of any
Subsidiary and by any Subsidiary of Indebtedness of the Borrower or any other
Subsidiary; provided, however, that Guaranties by any Loan Party of Indebtedness
of any Subsidiary that is not a Subsidiary Loan Party shall be subject to
Section 7.4;
(f) Subordinated Debt of the Borrower (but not
Subsidiaries of the Borrower);
(g) Indebtedness in respect of obligations under Hedging
Agreements permitted by Section 7.10;
(h) Synthetic Lease Obligations so long as no Default or Event
of Default has occurred and is continuing or would result after giving pro forma
effect to the incurrence of such Synthetic Lease Obligation, including without
limitation under the covenants set forth in Article VI; and
(i) other unsecured Indebtedness of the Borrower and its
Subsidiaries in an aggregate principal amount at any time outstanding not to
exceed 10% of Consolidated Net Worth of the Borrower as calculated on the last
day of Fiscal Quarter for which the Borrower has delivered, or is required to
have delivered, financial statements to the Lenders pursuant to this Agreement.
Section 7.2 Negative Pledge. The Borrower will not, and will
not permit any of its Subsidiaries to, create, incur, assume or suffer to exist
any Lien on any of its assets or property now owned or hereafter acquired or,
except:
(a) Permitted Encumbrances;
(b) any Liens on any property or asset of the Borrower or any
Subsidiary existing on the Closing Date set forth on Schedule 7.2; provided,
that such Lien shall not apply to any other property or asset of the Borrower or
any Subsidiary;
(c) purchase money Liens upon or in any fixed or capital
assets to secure the purchase price or the cost of construction or improvement
of such fixed or capital assets or to secure Indebtedness incurred solely for
the purpose of financing the acquisition, construction or improvement of such
fixed or capital assets (including Liens securing any Capital Lease
Obligations); provided, however, that (i) such Lien secures Indebtedness
permitted by Section 7.1(c), (ii) such Lien attaches to such asset concurrently
or within 180 days after the acquisition, improvement or completion of the
construction thereof; (iii) such Lien does not extend to any other asset; and
(iv) the Indebtedness secured thereby does not exceed the cost of acquiring,
constructing or improving such fixed or capital assets;
(d) any Lien (i) existing on any asset of any Person at the
time such Person becomes a Subsidiary of the Borrower, (ii) existing on any
asset of any Person at the time such Person is merged with or into the Borrower
or any Subsidiary of the Borrower or (iii) existing on any asset prior to the
acquisition thereof by the Borrower or any Subsidiary of the Borrower; provided,
however, that any such Lien was not created in the contemplation of any of the
foregoing and any such Lien secures only those obligations which it secures on
the date that such Person becomes a Subsidiary or the date of such merger or the
date of such acquisition; and
(e) extensions, renewals, or replacements of any Lien referred
to in paragraphs (a) through (d) of this Section; provided, however, that the
principal amount of the Indebtedness secured thereby is not increased and that
any such extension, renewal or replacement is limited to the assets originally
encumbered thereby.
Section 7.3 Fundamental Changes.
(a) Except as permitted in Section 7.6, the Borrower will not,
and will not permit any Subsidiary to, merge into or consolidate into any other
Person, or permit any other Person to merge into or consolidate with it, or
sell, lease, transfer or otherwise dispose of (in a single transaction or a
series of transactions) all or substantially all of its assets (in each case,
whether now owned or hereafter acquired) or all or substantially all of the
stock of any of its Subsidiaries (in each case, whether now owned or hereafter
acquired) or liquidate or dissolve; provided, however, that if at the time
thereof and immediately after giving effect thereto, no Default or Event of
Default shall have occurred and be continuing (i) the Borrower or any Subsidiary
may merge with a Person if the Borrower (or such Subsidiary if the Borrower is
not a party to such merger) is the surviving Person, (ii) any Subsidiary may
merge into another Subsidiary; provided, however, that if any party to such
merger is a Subsidiary Loan Party, the Subsidiary Loan Party shall be the
surviving Person, (iii) any Subsidiary may sell, transfer, lease or otherwise
dispose of all or substantially all of its assets to the Borrower or to a
Subsidiary Loan Party and (iv) any Subsidiary may liquidate or dissolve into a
Subsidiary Loan Party or into the Borrower if the Borrower determines in good
faith that such liquidation or dissolution is in the best interests of the
Borrower and is not materially disadvantageous to the Lenders; provided,
however, that any such merger involving a Person that is not a wholly owned
Subsidiary immediately prior to such merger shall not be permitted unless also
permitted by Section 7.4.
(b) The Borrower will not, and will not permit any of its
Subsidiaries to, engage in any business other than businesses of the type
conducted by the Borrower and its Subsidiaries on the date hereof and businesses
reasonably related thereto.
Section 7.4 Investments, Loans, Etc. The Borrower will not,
and will not permit any of its Subsidiaries to, purchase, hold or acquire
(including pursuant to any merger with any Person that was not a wholly owned
Subsidiary prior to such merger), any common stock, evidence of indebtedness or
other securities (including any option, warrant, or other right to acquire any
of the foregoing) of, make or permit to exist any loans or advances to, Guaranty
any obligations of, or make or permit to exist any investment or any other
interest in, any other Person (all of the foregoing being collectively called
"Investments"), or purchase or otherwise acquire (in one transaction or a series
of transactions) any assets of any other Person that constitute a business unit,
or create or form any Subsidiary, except:
(a) Investments (other than Permitted Investments)
existing on the date hereof and set
forth on Schedule 7.4 (including Investments in Subsidiaries);
(b) Permitted Investments;
(c) Guaranties constituting Indebtedness permitted by
Section 7.1;
(d) Investments made by any Loan Party in or to any other
Loan Party;
(e) loans or advances to employees, officers or
directors of the Borrower or any Subsidiary in the ordinary course of business
for travel, relocation and related expenses;
(f) Hedging Agreements permitted by Section 7.10;
(g) promissory notes issued to the Borrower as a part of
the purchase price in connection with the sale, if any, of American Cafe, Tia's
or L&N Seafood;
(h) Investments in franchise operators through the
Franchise Partner Program;
(i) Investments received in settlement of Indebtedness
created in the ordinary course of business;
(j) Investments in the stock or other assets of any other
Person that is engaged in a business permitted by Section 7.3(b) that, as a
result of such Investment, becomes a Subsidiary of Borrower (other than Hostile
Acquisitions); provided, however, that the aggregate purchase price of
Investments made pursuant to this subsection (j) shall not exceed at any time
ten percent (10%) of the Consolidated Net Worth of the Borrower as calculated on
the last day of Fiscal Quarter for which the Borrower has delivered, or is
required to have delivered, financial statements to the Lenders pursuant to this
Agreement; and
(k) Investments in common stock of the Borrower to the
extent permitted under Section 7.5.
Section 7.5 Restricted Payments. The Borrower will not, and
will not permit its Subsidiaries to, (x) declare or make, or agree to pay or
make, directly or indirectly, any dividend on any class of its stock, or (y)
make any payment on account of, or set apart assets for a sinking or other
analogous fund for, the purchase, redemption, retirement, defeasance or other
acquisition of, any shares of common stock or Indebtedness subordinated to the
Obligations of the Borrower or any options, warrants, or other rights to
purchase such common stock or such Indebtedness, whether now or hereafter
outstanding (each, a "Restricted Payment"), except for (i) dividends payable by
the Borrower solely in shares of any class of its common stock, (ii) Restricted
Payments made by any Subsidiary to the Borrower or to another Loan Party and
(iii) cash dividends paid on, and cash redemptions of, the common stock of the
Borrower; provided, however, that no Event of Default has occurred and is
continuing before or after giving effect to the payment of such dividend or
redemption.
Section 7.6 Sale of Assets. The Borrower will not, and will
not permit any of its Subsidiaries to, convey, sell, lease, assign, transfer or
otherwise dispose of, any of its assets, business or property, whether now owned
or hereafter acquired, or, in the case of any Subsidiary, issue or sell any
shares of such Subsidiary's common stock to any Person other than the Borrower
or any wholly owned Subsidiary of the Borrower or a Subsidiary Loan Party (or to
qualify directors if required by applicable law), except:
(a) the sale or other disposition for fair market value of
obsolete or worn out property or other property not necessary for operations,
disposed of in the ordinary course of business;
(b) the sale of inventory and Permitted Investments in
the ordinary course of business;
(c) the sale, lease or transfer of assets of any
Subsidiary to the Borrower or any other Loan Party;
(d) the sale of any assets of American Cafe, Tia's or L&N;
(e) the sale of any assets pertaining to Ruby Tuesday
units pursuant to the Borrower's Franchise Partner Program;
(f) any other sale of the Borrower's assets with an aggregate
book value, when aggregated with all other such sales since the Closing Date,
not exceeding 7.5% of the aggregate book value of all of the Borrower's assets
on the date of such transfer; provided, however, that no Default or Event of
Default has occurred and is continuing or would occur as a result of such
transaction.
Section 7.7 Transactions with Affiliates. The Borrower will
not, and will not permit any of its Subsidiaries to, sell, lease or otherwise
transfer any property or assets to, or purchase, lease or otherwise acquire any
property or assets from, or otherwise engage in any other transactions with, any
of its Affiliates, except (a) in the ordinary course of business at prices and
on terms and conditions not less favorable to the Borrower or such Subsidiary
than could be obtained on an arm's-length basis from unrelated third parties,
(b) transactions between or among the Borrower and its wholly owned Subsidiaries
not involving any other Affiliates and (c) any Restricted Payment permitted by
Section 7.5.
Section 7.8 Restrictive Agreements. The Borrower will not, and
will not permit any Subsidiary to, directly or indirectly, enter into, incur or
permit to exist any agreement that prohibits, restricts or imposes any condition
upon (a) the ability of the Borrower or any Subsidiary to create, incur or
permit any Lien upon any of its assets or properties, whether now owned or
hereafter acquired, or (b) the ability of any Subsidiary to pay dividends or
other distributions with respect to its common stock, to make or repay loans or
advances to the Borrower or any other Subsidiary, to Guaranty Indebtedness of
the Borrower or any other Subsidiary or to transfer any of its property or
assets to the Borrower or any Subsidiary of the Borrower; provided, however,
that (i) the foregoing shall not apply to restrictions or conditions imposed by
law or by this Agreement or any other Loan Document, (ii) the foregoing shall
not apply to customary restrictions and conditions contained in agreements
relating to the sale of a Subsidiary pending such sale, provided such
restrictions and conditions apply only to the Subsidiary that is sold and such
sale is permitted hereunder, and (iii) clause (a) shall not apply to
restrictions or conditions imposed by any agreement relating to secured
Indebtedness permitted under Section 7.1(c) of this Agreement if such
restrictions and conditions apply only to the property or assets securing such
Indebtedness.
Section 7.9 Sale and Leaseback Transactions. The Borrower will
not, and will not permit any of the Subsidiaries to, enter into any arrangement,
directly or indirectly, whereby it shall sell or transfer any property, real or
personal, used or useful in its business, whether now owned or hereinafter
acquired, and thereafter rent or lease such property or other property that it
intends to use for substantially the same purpose or purposes as the property
sold or transferred (such arrangement referred to as a "Sale Leaseback").
Notwithstanding the preceding limitation, Borrower may enter into a any Sale
Leaseback provided the aggregate amount of such transactions does not exceed
$50,000,000.
Section 7.10 Hedging Agreements. The Borrower will not, and
will not permit any of the Subsidiaries to, enter into any Hedging Agreement,
other than Hedging Agreements entered into in the ordinary course of business to
hedge or mitigate risks to which the Borrower or any Subsidiary is exposed in
the conduct of its business or the management of its liabilities. Solely for the
avoidance of doubt, the Borrower acknowledges that a Hedging Agreement entered
into for speculative purposes or of a speculative nature (which shall be deemed
to include any Hedging Agreement under which the Borrower or any of the
Subsidiaries is or may become obliged to make any payment (i) in connection with
the purchase by any third party of any common stock or any Indebtedness or (ii)
as a result of changes in the market value of any common stock or any
Indebtedness) is not a Hedging Agreement entered into in the ordinary course of
business to hedge or mitigate risks.
Section 7.11 Amendment to Material Documents. The Borrower
will not, and will not permit any Subsidiary to, amend, modify or waive any of
its rights in a manner materially adverse to the Borrower's or Subsidiary's
duties or the Lenders' rights under this Agreement under (a) its certificate of
incorporation, bylaws or other organizational documents or (b) any contract,
agreement, document, or instrument to which the Borrower or Subsidiary is a
party.
Section 7.12 Accounting Changes. The Borrower will not, and
will not permit any Subsidiary to, make any significant change in accounting
treatment or reporting practices, except as required by GAAP or approved by the
Borrower's independent accountants, or change the fiscal year of the Borrower or
of any Subsidiary, except to change the fiscal year of a Subsidiary to conform
its fiscal year to that of the Borrower and except that Borrower or any
Subsidiary may change its fiscal year end from the first Sunday following May 30
to the first Tuesday or Wednesday following May 30.
Section 7.13 ERISA. The Borrower will not, and will not permit
any Subsidiary to engage in any transaction in connection with which the
Borrower or such Subsidiary could reasonably be expected to be subject to a
civil penalty assessed pursuant to ERISA which would have a Material Adverse
Effect on the Borrower or such Subsidiary.
ARTICLE VIII
EVENTS OF DEFAULT
Section 8.1 Events of Default. If any of the following
events (each an "Event of Default") shall occur:
(a) the Borrower shall fail to pay any principal of any Loan
or of any reimbursement obligation in respect of any LC Disbursement when and as
the same shall become due and payable, whether at the due date thereof or at a
date fixed for prepayment or otherwise; or
(b) the Borrower shall fail to pay any interest on any Loan or
any fee or any other amount (other than an amount payable under clause (a) of
this Article) payable under this Agreement or any other Loan Document, when and
as the same shall become due and payable, and such failure shall continue
unremedied for a period of three (3) Business Days; or
(c) any representation or warranty made or deemed made by or
on behalf of the Borrower or any Subsidiary in or in connection with this
Agreement or any other Loan Document (including the Exhibits and Schedules
attached thereto) and any amendments or modifications hereof or waivers
hereunder, or in any certificate, report, financial statement or other document
submitted to the Administrative Agent or the Lenders by any Loan Party or any
representative of any Loan Party pursuant to or in connection with this
Agreement or any other Loan Document shall prove to be incorrect in any material
respect when made or deemed made or submitted; or
(d) the Borrower shall fail to observe or perform any covenant
or agreement contained in Sections 5.1, 5.2, 5.3 (with respect to the Borrower's
existence), 5.7, 5.9 or Articles VI or VII; or
(e) any Loan Party shall fail to observe or perform any
covenant or agreement contained in this Agreement or any other Loan Document
(other than those referred to in clauses (a), (b) and (d) above), and such
failure shall remain unremedied for 30 days after the earlier of (i) any officer
of the Borrower becomes aware of such failure, or (ii) written notice thereof
shall have been given to the Borrower by the Administrative Agent or any Lender;
or
(f) the Borrower or any Subsidiary (whether as primary obligor
or as guarantor or other surety) shall fail to pay any principal of or premium
or interest on any Material Indebtedness that is outstanding, when and as the
same shall become due and payable (whether at scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall continue
after the applicable grace period, if any, specified in the agreement or
instrument evidencing such Material Indebtedness; or any other event shall occur
or condition shall exist under any agreement or instrument relating to such
Material Indebtedness and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such event or
condition is to accelerate, or permit the acceleration of, the maturity of such
Material Indebtedness; or any such Material Indebtedness shall be declared to be
due and payable; or required to be prepaid or redeemed (other than by a
regularly scheduled required prepayment or redemption), purchased or defeased,
or any offer to prepay, redeem, purchase or defease such Material Indebtedness
shall be required to be made, in each case prior to the stated maturity thereof;
or
(g) the Borrower or any Material Subsidiary shall (i) commence
a voluntary case or other proceeding or file any petition seeking liquidation,
reorganization or other relief under any federal, state or foreign bankruptcy,
insolvency or other similar law now or hereafter in effect or seeking the
appointment of a custodian, trustee, receiver, liquidator or other similar
official of it or any substantial part of its property, (ii) consent to the
institution of, or fail to contest in a timely and appropriate manner, any
proceeding or petition described in clause (i) of this Section, (iii) apply for
or consent to the appointment of a custodian, trustee, receiver, liquidator or
other similar official for the Borrower or any such Material Subsidiary or for a
substantial part of its assets, (iv) file an answer admitting the material
allegations of a petition filed against it in any such proceeding, (v) make a
general assignment for the benefit of creditors, or (vi) take any action for the
purpose of effecting any of the foregoing; or
(h) an involuntary proceeding shall be commenced or an
involuntary petition shall be filed seeking (i) liquidation, reorganization or
other relief in respect of the Borrower or any Material Subsidiary or its debts,
or any substantial part of its assets, under any federal, state or foreign
bankruptcy, insolvency or other similar law now or hereafter in effect or (ii)
the appointment of a custodian, trustee, receiver, liquidator or other similar
official for the Borrower or any Material Subsidiary or for a substantial part
of its assets, and in any such case, such proceeding or petition shall remain
undismissed for a period of 60 days or an order or decree approving or ordering
any of the foregoing shall be entered; or
(i) the Borrower or any Material Subsidiary shall become
unable to pay, shall admit in writing its inability to pay, or shall fail to
pay, its debts as they become due; or
(j) an ERISA Event shall have occurred that, in the opinion of
the Required Lenders, when taken together with other ERISA Events that have
occurred, could reasonably be expected to result in liability to the Borrower
and the Subsidiaries in an aggregate amount exceeding $2,500,000; or
(k) any judgment or order for the payment of money in excess
of $2,500,000 in the aggregate shall be rendered against the Borrower or any
Subsidiary, and either (i) enforcement proceedings shall have been commenced by
any creditor upon such judgment or order or (ii) there shall be a period of 30
consecutive days during which a stay of enforcement of such judgment or order,
by reason of a pending appeal or otherwise, shall not be in effect; or
(l) any nonmonetary judgment or order shall be rendered
against the Borrower or any Subsidiary that could reasonably be expected to have
a Material Adverse Effect, and there shall be a period of 30 consecutive days
during which a stay of enforcement of such judgment or order, by reason of a
pending appeal or otherwise, shall not be in effect; or
(m) a Change in Control shall occur or exist; or
(n) any provision of any Subsidiary Guaranty Agreement shall
for any reason cease to be valid and binding on, or enforceable against, any
Subsidiary Loan Party, or any Subsidiary Loan Party shall so state in writing,
or any Subsidiary Loan Party shall seek to terminate its Subsidiary Guaranty
Agreement (except to the extent that Tia's is automatically released from the
Subsidiary Guaranty Agreement pursuant to the terms thereof);
then, and in every such event (other than an event with respect to the Borrower
described in clause (g) or (h) of this Section) and at any time thereafter
during the continuance of such event, the Administrative Agent may, and upon the
written request of the Required Lenders shall, by notice to the Borrower, take
any or all of the following actions, at the same or different times: (i)
terminate the Commitments, whereupon the Commitment of each Lender shall
terminate immediately; (ii) declare the principal of and any accrued interest on
the Loans, and all other Obligations owing hereunder, to be, whereupon the same
shall become due and payable immediately, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower;
(iii) exercise all remedies contained in any other Loan Document; and (iv)
exercise any other remedies available at law or in equity; and that, if an Event
of Default specified in either clause (g) or (h) shall occur, the Commitments
shall automatically terminate and the principal of the Loans then outstanding,
together with accrued interest thereon, and all fees, and all other Obligations
shall automatically become due and payable, without presentment, demand, protest
or other notice of any kind, all of which are hereby waived by the Borrower.
ARTICLE IX
THE ADMINISTRATIVE AGENT
Section 9.1 Appointment of Administrative Agent. Each Lender
irrevocably appoints SunTrust Bank as the Administrative Agent and authorizes it
to take such actions on its behalf and to exercise such powers as are delegated
to the Administrative Agent under this Agreement and the other Loan Documents,
together with all such actions and powers that are reasonably incidental
thereto. The Administrative Agent may perform any of its duties hereunder by or
through any one or more sub-agents appointed by the Administrative Agent. The
Administrative Agent and any such sub-agent may perform any and all of its
duties and exercise its rights and powers through their respective Related
Parties. The exculpatory provisions set forth in this Article shall apply to any
such sub-agent and the Related Parties of the Administrative Agent 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 Administrative Agent.
(a) The Issuing Bank shall act on behalf of the Lenders with
respect to any Letters of Credit issued by it and the documents associated
therewith until such time and except for so long as the Administrative Agent may
agree at the request of the Required Lenders to act for the Issuing Bank with
respect thereto; provided, that the Issuing Bank shall have all the benefits and
immunities (i) provided to the Administrative Agent in this Article IX with
respect to any acts taken or omissions suffered by the Issuing Bank in
connection with Letters of Credit issued by it or proposed to be issued by it
and the application and agreements for letters of credit pertaining to the
Letters of Credit as fully as the term "Administrative Agent" as used in this
Article IX included the Issuing Bank with respect to such acts or omissions and
(ii) as additionally provided in this Agreement with respect to the Issuing
Bank.
Section 9.2 Nature of Duties of Administrative Agent. The
Administrative Agent shall not have any duties or obligations except those
expressly set forth in this Agreement and the other Loan Documents. Without
limiting the generality of the foregoing, (a) the Administrative Agent shall not
be subject to any fiduciary or other implied duties, regardless of whether a
Default or an Event of Default has occurred and is continuing, (b) the
Administrative Agent shall not have any duty to take any discretionary action or
exercise any discretionary powers, except those discretionary rights and powers
expressly contemplated by the Loan Documents that the Administrative Agent is
required to exercise in writing by the Required Lenders (or such other number or
percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2), and (c) except as expressly set forth in the Loan
Documents, the Administrative Agent shall not have any duty to disclose, and
shall not be liable for the failure to disclose, any information relating to the
Borrower or any of its Subsidiaries that is communicated to or obtained by the
Administrative 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
with the consent or at the request of the Required Lenders (or such other number
or percentage of the Lenders as shall be necessary under the circumstances as
provided in Section 10.2) or in the absence of its own gross negligence or
willful misconduct. The Administrative Agent shall not be deemed to have
knowledge of any Default or Event of Default unless and until written notice
thereof is given to the Administrative Agent by the Borrower or any Lender, and
the Administrative 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 any Loan 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 and conditions set forth in any Loan
Document, (iv) the validity, enforceability, effectiveness or genuineness of any
Loan Document or any other agreement, instrument or document, or (v) the
satisfaction of any condition set forth in Article III or elsewhere in any Loan
Document, other than to confirm receipt of items expressly required to be
delivered to the Administrative Agent.
Section 9.3 Lack of Reliance on the Administrative Agent. Each
of the Lenders, the Swingline Lender and the Issuing Bank acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on such documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each of the Lenders, the Swingline Lender and the Issuing Bank also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it has deemed appropriate, continue to make its own decisions in
taking or not taking of any action under or based on this Agreement, any related
agreement or any document furnished hereunder or thereunder.
Section 9.4 Certain Rights of the Administrative Agent. If the
Administrative Agent shall request instructions from the Required Lenders with
respect to any action or actions (including the failure to act) in connection
with this Agreement, the Administrative Agent shall be entitled to refrain from
such act or taking such act, unless and until it shall have received
instructions from such Required Lenders; and the Administrative Agent shall not
incur liability to any Person by reason of so refraining. Without limiting the
foregoing, no Lender shall have any right of action whatsoever against the
Administrative Agent as a result of the Administrative Agent acting or
refraining from acting hereunder in accordance with the instructions of the
Required Lenders where required by the terms of this Agreement.
Section 9.5 Reliance by Administrative Agent. The
Administrative Agent 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 believed by it to be genuine
and to have been signed, sent or made by the proper Person. The Administrative
Agent may also rely upon any statement made to it orally or by telephone and
believed by it to be made by the proper Person and shall not incur any liability
for relying thereon. The Administrative Agent may consult with legal counsel
(including counsel for the Borrower), independent public 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 such counsel, accountants or experts.
Section 9.6 The Administrative Agent in its Individual
Capacity. The bank serving as the Administrative Agent shall have the same
rights and powers under this Agreement and any other Loan Document in its
capacity as a Lender as any other Lender and may exercise or refrain from
exercising the same as though it were not the Administrative Agent; and the
terms "Lenders", "Required Lenders", "holders of Notes", or any similar terms
shall, unless the context clearly otherwise indicates, include the
Administrative Agent in its individual capacity. The bank acting as the
Administrative Agent and its Affiliates may accept deposits from, lend money to,
and generally engage in any kind of business with the Borrower or any Subsidiary
or Affiliate of the Borrower as if it were not the Administrative Agent
hereunder.
Section 9.7 Successor Administrative Agent.
(a) The Administrative Agent may resign at any time by giving
notice thereof to the Lenders and the Borrower. Upon any such resignation, the
Required Lenders shall have the right to appoint a successor Administrative
Agent, subject to the approval by the Borrower provided that no Default or Event
of Default shall exist at such time. If no successor Administrative Agent shall
have been so appointed, and shall have accepted such appointment within 30 days
after the retiring Administrative Agent gives notice of resignation, then the
retiring Administrative Agent may, on behalf of the Lenders and the Issuing
Bank, appoint a successor Administrative Agent, which shall be a commercial bank
organized under the laws of the United States of America or any state thereof or
a bank which maintains an office in the United States, having a combined capital
and surplus of at least $500,000,000.
(b) Upon the acceptance of its appointment as the
Administrative Agent hereunder by a successor, such successor Administrative
Agent shall thereupon succeed to and become vested with all the rights, powers,
privileges and duties of the retiring Administrative Agent, and the retiring
Administrative Agent shall be discharged from its duties and obligations under
this Agreement and the other Loan Documents. If within 45 days after written
notice is given of the retiring Administrative Agent's resignation under this
Section 9.7 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation shall become effective, (ii) the retiring
Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time as the Required Lenders appoint a successor
Administrative Agent as provided above. After any retiring Administrative
Agent's resignation hereunder, the provisions of this Article IX shall continue
in effect for the benefit of such retiring Administrative Agent and its
representatives and agents in respect of any actions taken or not taken by any
of them while it was serving as the Administrative Agent.
Section 9.8 Authorization to Execute other Loan Documents.
Each Lender hereby authorizes the Administrative Agent to execute on behalf of
all Lenders all Loan Documents other than this Agreement.
ARTICLE X
MISCELLANEOUS
Section 10.1 Notices.
(a) Except in the case of notices and other communications
expressly permitted to be given by telephone, all notices and other
communications to any party herein to be effective shall be in writing and shall
be delivered by hand or overnight courier service, mailed by certified or
registered mail or sent by telecopy, as follows:
To the Borrower: Ruby Tuesday, Inc.
150 West Church Avenue
Maryville, TN 37801
Attention: Mr. J. Russell Mothershed
Telecopy: 865-379-6817
To the Administrative Agent: SunTrust Bank
201 Fourth Avenue North, 3rd Floor
Nashville, Tennessee 37219
Attention: Mr. Vipul Patel
Telecopy Number: 615-748-5629
With a copy to: SunTrust Equitable Securities Corporation
303 Peachtree Street, NE/24th Floor
Atlanta, Georgia 30308
Attention: Ms. Jenna Kelly
Telecopy Number: 404-827-6514
To the Issuing Bank: SunTrust Bank
25 Park Place, N. E./Mail Code 3706
Atlanta, Georgia 30303
Attention: Michael E. Sullivan
Telecopy Number: (404) 588-8129
To the Swingline Lender: SunTrust Bank
201 Fourth Avenue North, 3rd Floor
Nashville, Tennessee 37219
Attention: Mr. Vipul Patel
Telecopy Number: 615-748-5629
To any other Lender:the address set forth in the Administrative
Questionnaire
Any party hereto may change its address or telecopy number for notices and other
communications hereunder by notice to the other parties hereto. All such notices
and other communications shall, when transmitted by overnight delivery, or
faxed, be effective when delivered for overnight (next-day) delivery, or
transmitted in legible form by facsimile machine, respectively, or if mailed,
upon the third Business Day after the date deposited into the mail or if
delivered, upon delivery; provided, that notices delivered to the Administrative
Agent, the Issuing Bank or the Swingline Bank shall not be effective until
actually received by such Person at its address specified in this Section 10.1.
(b) Any agreement of the Administrative Agent and the Lenders
herein to receive certain notices by telephone or facsimile is solely for the
convenience and at the request of the Borrower. The Administrative Agent and the
Lenders shall be entitled to rely on the authority of any Person purporting to
be a Person authorized by the Borrower to give such notice and the
Administrative Agent and Lenders shall not have any liability to the Borrower or
other Person on account of any action taken or not taken by the Administrative
Agent or the Lenders in reliance upon such telephonic or facsimile notice. The
obligation of the Borrower to repay the Loans and all other Obligations
hereunder shall not be affected in any way or to any extent by any failure of
the Administrative Agent and the Lenders to receive written confirmation of any
telephonic or facsimile notice or the receipt by the Administrative Agent and
the Lenders of a confirmation which is at variance with the terms understood by
the Administrative Agent and the Lenders to be contained in any such telephonic
or facsimile notice.
Section 10.2 Waiver; Amendments.
(a) No failure or delay by the Administrative Agent, the
Issuing Bank or any Lender in exercising any right or power hereunder or any
other Loan Document, and no course of dealing between the Borrower and the
Administrative Agent or any Lender, shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or power or any abandonment or
discontinuance of steps to enforce such right or power, preclude any other or
further exercise thereof or the exercise of any other right or power hereunder
or thereunder. The rights and remedies of the Administrative Agent, the Issuing
Bank and the Lenders hereunder and under the other Loan Documents are cumulative
and are not exclusive of any rights or remedies provided by law. No waiver of
any provision of this Agreement or any other Loan Document or consent to any
departure by the Borrower therefrom shall in any event be effective unless the
same shall be permitted by paragraph (b) of this Section, and then such waiver
or consent shall be effective only in the specific instance and for the purpose
for which given. Without limiting the generality of the foregoing, the making of
a Loan or the issuance of a Letter of Credit shall not be construed as a waiver
of any Default or Event of Default, regardless of whether the Administrative
Agent, any Lender or the Issuing Bank may have had notice or knowledge of such
Default or Event of Default at the time.
(b) No amendment or waiver of any provision of this Agreement
or the other Loan Documents, nor consent to any departure by the Borrower
therefrom, shall in any event be effective unless the same shall be in writing
and signed by the Borrower and the Required Lenders or the Borrower and the
Administrative Agent with the consent of the Required Lenders and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that no amendment or waiver
shall: (i) increase the Commitment of any Lender without the written consent of
such Lender, (ii) reduce the principal amount of any Loan or LC Disbursement or
reduce the rate of interest thereon, or reduce any fees payable hereunder,
without the written consent of each Lender affected thereby, (iii) postpone the
date fixed for any payment of any principal of, or interest on, any Loan or LC
Disbursement or interest thereon or any fees hereunder or reduce the amount of,
waive or excuse any such payment, or postpone the scheduled date for the
termination or reduction of any Commitment, without the written consent of each
Lender affected thereby, (iv) change Section 2.21(b) or (c) in a manner that
would alter the pro rata sharing of payments required thereby, without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement without the written
consent of each Lender; or (vii) release all or substantially all collateral (if
any) securing any of the Obligations, without the written consent of each
Lender; provided further, that no such agreement shall amend, modify or
otherwise affect the rights, duties or obligations of the Administrative Agent,
the Swingline Bank or the Issuing Bank without the prior written consent of such
Person.
Section 10.3 Expenses; Indemnification.
(a) The Borrower shall pay (i) all reasonable, out-of-pocket
costs and expenses of the Administrative Agent and its Affiliates, including the
reasonable fees, charges and disbursements of counsel for the Administrative
Agent and its Affiliates actually incurred, in connection with the syndication
of the credit facilities provided for herein, the preparation and administration
of the Loan Documents and any amendments, modifications or waivers thereof
(whether or not the transactions contemplated in this Agreement or any other
Loan Document shall be consummated), (ii) all reasonable out-of-pocket expenses
incurred by the Issuing Bank 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 costs and expenses (including, without limitation, the
reasonable fees, charges and disbursements of outside counsel, fees of inside
counsel, accountants, consultants, and other similar professional fees) actually
incurred by the Administrative Agent, the Issuing Bank or any Lender in
connection with the enforcement or protection of its rights in connection with
this Agreement, including its rights under this Section, or in connection with
the Loans made or any 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) The Borrower shall indemnify the Administrative Agent, the
Issuing Bank and each Lender, and each Related Party of any of the foregoing
(each, an "Indemnitee") against, and hold each of them harmless from, any and
all costs, losses, liabilities, claims, damages and related expenses, including
the fees, charges and disbursements of any counsel for any Indemnitee, which may
be incurred by or asserted against any Indemnitee arising out of, in connection
with or as a result of (i) the execution or delivery of this Agreement or any
other agreement or instrument contemplated hereby, the performance by the
parties hereto of their respective obligations hereunder or the consummation of
any of the transactions contemplated hereby, (ii) any Loan or Letter of Credit
or any actual or proposed use of the proceeds therefrom (including any refusal
by the Issuing Bank 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 by the Borrower
or any Subsidiary or any Environmental Liability related in any way to the
Borrower or any Subsidiary 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 and regardless of whether any Indemnitee is a
party thereto; provided, that the Borrower shall not be obligated to indemnify
any Indemnitee for any of the foregoing arising out of such Indemnitee's gross
negligence or willful misconduct, as determined by a court of competent
jurisdiction in a final and nonappealable judgment;
(c) The Borrower shall pay, and hold the Administrative Agent
and each of the Lenders harmless from and against, any and all present and
future stamp, documentary, and other similar taxes with respect to this
Agreement and any other Loan Documents, any collateral described therein, or any
payments due thereunder, and save the Administrative Agent and each Lender
harmless from and against any and all liabilities with respect to or resulting
from any delay or omission to pay such taxes.
(d) To the extent that the Borrower fails to pay any amount
required to be paid to the Administrative Agent, the Issuing Bank or the
Swingline Lender under clauses (a), (b) or (c) hereof, each Lender severally
agrees to pay to the Administrative Agent, the Issuing Bank or the Swingline
Lender, as the case may be, such Lender's Pro Rata Share (determined as of the
time that the unreimbursed expense or indemnity payment is sought) of such
unpaid amount; provided, however, that the unreimbursed expense or indemnified
payment, claim, damage, liability or related expense, as the case may be, was
incurred by or asserted against the Administrative Agent, the Issuing Bank or
the Swingline Lender in its capacity as such.
(e) To the extent permitted by applicable law, the Borrower
shall not assert, and hereby waives, any claim against any Indemnitee, on any
theory of liability, for special, indirect, consequential or punitive damages
(as opposed to actual or direct damages) arising out of, in connection with or
as a result of, this Agreement or any agreement or instrument contemplated
hereby, the transactions contemplated therein, any Loan or any Letter of Credit
or the use of proceeds thereof.
(f) All amounts due under this Section shall be
payable promptly after written demand therefor.
Section 10.4 Successors and Assigns.
(a) The provisions of this Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that the Borrower may not assign or otherwise
transfer any of its rights or obligations hereunder without the prior written
consent of each Lender (and any attempted assignment or transfer by the Borrower
without such consent shall be null and void). Nothing in this Agreement,
expressed or implied, shall be construed to confer upon any Person (other than
the parties hereto, their respective successors and assigns permitted hereby
and, to the extent expressly contemplated hereby, the Related Parties of each of
the Administrative Agent and the Lenders) any legal or equitable right, remedy
or claim under or by reason of this Agreement.
(b) Any Lender may assign to one or more Eligible Assignees
all or a portion of its rights and obligations under this Agreement (including
all or a portion of its Commitment and the 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, 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) of the assigning
Lender subject to each such assignment (determined as of the date the Assignment
and Acceptance with respect to such assignment is delivered to the
Administrative Agent) shall not be less than $1,000,000, in the case of any
assignment of a Revolving Loan, unless each of the Administrative Agent and, so
long as no Event of Default has occurred and is continuing, the Borrower
otherwise consent (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 Agreement with respect to the Loan or the Commitment assigned, except that
this clause (ii) shall not prohibit any Lender from assigning all or a portion
of its rights and obligations among separate Commitments on a non-pro rata
basis, and (iii) the parties to each assignment shall execute and deliver to the
Administrative Agent an Assignment and Acceptance, together with a processing
and recordation fee of $1,000, 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 paragraph (c) of this Section, from and after the effective
date specified in each Assignment and Acceptance, the Eligible Assignee
thereunder shall be a party hereto and, to the extent of the interest assigned
by such Assignment and Acceptance, have the rights and obligations of a Lender
under this Agreement, and the assigning Lender thereunder shall, to the extent
of the interest assigned by such Assignment and Acceptance, be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all of the assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto but shall continue
to be entitled to the benefits of Sections 2.18, 2.19, 2.20 and 10.3. Any
assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this
Agreement as a sale by such Lender of a participation in such rights and
obligations in accordance with paragraph (d) of this Section.
(c) The Administrative Agent, acting solely for this purpose
as an agent of the Borrower, shall maintain at one of its offices in Atlanta,
Georgia a copy of each Assignment and Acceptance delivered to it and a register
for the recordation of the names and addresses of the Lenders, and the
Commitments of, and principal amount of the Loans 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 Borrower, 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 Agreement,
notwithstanding notice to the contrary. The Register shall be available for
inspection by the Borrower and any Lender, at any reasonable time and from time
to time upon reasonable prior notice.
(d) Any Lender may, without the consent of, or notice to, the
Borrower, the Administrative Agent, the Swingline Bank or the Issuing Bank sell
participations to one or more banks or other entities (a "Participant") in all
or a portion of such Lender's rights and/or obligations under this Agreement
(including all or a portion of its Commitment and/or the Loans owing to it);
provided that (i) such Lender's obligations under this 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 Swingline Bank, the Issuing Bank and the other Lenders
shall continue to deal solely and directly with such Lender in connection with
such Lender's rights and obligations under this 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 Agreement and to
approve any amendment, modification or waiver of any provision of this
Agreement; provided that such agreement or instrument may provide that such
Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver with respect to the following to the extent affecting
such Participant: (i) increase the Commitment of any Lender without the written
consent of such Lender, (ii) reduce the principal amount of any Loan or LC
Disbursement or reduce the rate of interest thereon, or reduce any fees payable
hereunder, without the written consent of each Lender affected thereby, (iii)
postpone the date fixed for any payment of any principal of, or interest on, any
Loan or LC Disbursement or interest thereon or any fees hereunder or reduce the
amount of, waive or excuse any such payment, or postpone the scheduled date for
the termination or reduction of any Commitment, without the written consent of
each Lender affected thereby, (iv) change Section 2.21(b) or (c) in a manner
that would alter the pro rata sharing of payments required thereby , without the
written consent of each Lender, (v) change any of the provisions of this Section
or the definition of "Required Lenders" or any other provision hereof specifying
the number or percentage of Lenders which are required to waive, amend or modify
any rights hereunder or make any determination or grant any consent hereunder,
without the consent of each Lender; (vi) release any guarantor or limit the
liability of any such guarantor under any guaranty agreement without the written
consent of each Lender except to the extent such release is expressly provided
under the terms of the Guaranty Agreement; or (vii) release all or substantially
all collateral (if any) securing any of the Obligations. Subject to paragraph
(e) of this Section, the Borrower agrees that each Participant shall be entitled
to the benefits of Sections 2.18, 2.19, and 2.20 to the same extent as if it
were a Lender and had acquired its interest by assignment pursuant to paragraph
(b) of this Section. To the extent permitted by law, each Participant also shall
be entitled to the benefits of Section 10.7 as though it were a Lender, provided
such Participant agrees to be subject to Section 10.7 as though it were a
Lender.
(e) A Participant shall not be entitled to receive any greater
payment under Section 2.18 and Section 2.20 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 Borrower'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 2.20
unless the Borrower is notified of the participation sold to such Participant
and such Participant agrees, for the benefit of the Borrower, to comply with
Section 2.20(e) as though it were a Lender.
(f) Any Lender may at any time pledge or assign a security
interest in all or any portion of its rights under this Agreement to secure
obligations of such Lender, including without limitation any pledge or
assignment to secure obligations to a Federal Reserve Bank; provided that no
such pledge or assignment of a security interest shall release a Lender from any
of its obligations hereunder or substitute any such pledgee or assignee for such
Lender as a party hereto.
Section 10.5 Governing Law; Jurisdiction; Consent to
Service of Process.
(a) This Agreement and the other Loan Documents shall be
construed in accordance with and be governed by the law (without giving effect
to the conflict of law principles thereof) of the State of Georgia.
(b) The Borrower hereby irrevocably and unconditionally
submits, for itself and its property, to the non-exclusive jurisdiction of the
United States District Court of the Northern District of Georgia, and of any
state court of the State of Georgia located in Fulton County and any appellate
court from any thereof, in any action or proceeding arising out of or relating
to this Agreement or any other Loan Document or the transactions contemplated
hereby or thereby, or for recognition or enforcement of any judgment, and each
of the parties hereto hereby irrevocably and unconditionally agrees that all
claims in respect of any such action or proceeding may be heard and determined
in such Georgia state court or, to the extent permitted by applicable law, such
Federal court. Each of the parties hereto agrees that a final judgment in any
such 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.
Nothing in this Agreement or any other Loan Document shall affect any right that
the Administrative Agent, the Issuing Bank or any Lender may otherwise have to
bring any action or proceeding relating to this Agreement or any other Loan
Document against the Borrower or its properties in the courts of any
jurisdiction.
(c) The Borrower irrevocably and unconditionally waives any
objection which it may now or hereafter have to the laying of venue of any such
suit, action or proceeding described in paragraph (b) of this Section and
brought in any court referred to in paragraph (b) of this Section. Each of the
parties hereto irrevocably waives, to the fullest extent permitted by applicable
law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(d) Each party to this Agreement irrevocably consents to the
service of process in the manner provided for notices in Section 10.1. Nothing
in this Agreement or in any other Loan Document will affect the right of any
party hereto to serve process in any other manner permitted by law.
Section 10.6 WAIVER OF JURY TRIAL. EACH PARTY HERETO
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 THIS AGREEMENT OR ANY OTHER LOAN 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 PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY 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 AGREEMENT AND THE OTHER LOAN DOCUMENTS BY, AMONG
OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
Section 10.7 Right of Setoff. In addition to any rights now or
hereafter granted under applicable law and not by way of limitation of any such
rights, each Lender and the Issuing Bank shall have the right, at any time or
from time to time upon the occurrence and during the continuance of an Event of
Default, without prior notice to the Borrower, any such notice being expressly
waived by the Borrower to the extent permitted by applicable law, to set off and
apply against all deposits (general or special, time or demand, provisional or
final) of the Borrower at any time held or other obligations at any time owing
by such Lender and the Issuing Bank to or for the credit or the account of the
Loan Parties against any and all Obligations held by such Lender or the Issuing
Bank, as the case may be, irrespective of whether such Lender or the Issuing
Bank shall have made demand hereunder and although such Obligations may be
unmatured. Each Lender and the Issuing Bank agree promptly to notify the
Administrative Agent and the Loan Parties after any such set-off and any
application made by such Lender and the Issuing Bank, as the case may be;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application.
Section 10.8 Counterparts; Integration. This Agreement may be
executed by one or more of the parties to this Agreement on any number of
separate counterparts (including by telecopy), and all of said counterparts
taken together shall be deemed to constitute one and the same instrument. This
Agreement, the Fee Letter, the other Loan Documents, and any separate letter
agreement(s) relating to any fees payable to the Administrative Agent constitute
the entire agreement among the parties hereto and thereto regarding the subject
matters hereof and thereof and supersede all prior agreements and
understandings, oral or written, regarding such subject matters.
Section 10.9 Survival. All covenants, agreements,
representations and warranties made by the Borrower herein and in the
certificates or other instruments delivered in connection with or pursuant to
this Agreement shall be considered to have been relied upon by the other parties
hereto and shall survive the execution and delivery of this Agreement and the
making of any Loans and issuance of any Letters of Credit, regardless of any
investigation made by any such other party or on its behalf and notwithstanding
that the Administrative Agent, the Issuing Bank or any Lender may have had
notice or knowledge of any Default or incorrect representation or warranty at
the time any credit is extended hereunder, and shall continue in full force and
effect as long as the principal of or any accrued interest on any Loan or any
fee or any other amount payable under this Agreement is outstanding and unpaid
or any Letter of Credit is outstanding and so long as the Commitments have not
expired or terminated. The provisions of Sections 2.18, 2.19, 2.20, and 10.3 and
Article IX shall survive and remain in full force and effect regardless of the
consummation of the transactions contemplated hereby, the repayment of the
Loans, the expiration or termination of the Letters of Credit and the
Commitments or the termination of this Agreement or any provision hereof. All
representations and warranties made herein, in the certificates, reports,
notices, and other documents delivered pursuant to this Agreement shall survive
the execution and delivery of this Agreement and the other Loan Documents, and
the making of the Loans and the issuance of the Letters of Credit.
Section 10.10 Severability. Any provision of this Agreement or
any other Loan Document held to be illegal, invalid or unenforceable in any
jurisdiction, shall, as to such jurisdiction, be ineffective to the extent of
such illegality, invalidity or unenforceability without affecting the legality,
validity or enforceability of the remaining provisions hereof or thereof; and
the illegality, invalidity or unenforceability of a particular provision in a
particular jurisdiction shall not invalidate or render unenforceable such
provision in any other jurisdiction.
Section 10.11 Confidentiality. Each of the Administrative
Agent, the Issuing Bank and each Lender agrees to take normal and reasonable
precautions to maintain the confidentiality of any information designated in
writing as confidential and provided to it by the Borrower or any Subsidiary,
except that such information may be disclosed (i) to any Related Party of the
Administrative Agent, the Issuing Bank or any such Lender, including without
limitation accountants, legal counsel and other advisors, (ii) to the extent
required by applicable laws or regulations or by any subpoena or similar legal
process, (iii) to the extent requested by any regulatory agency or authority,
(iv) to the extent that such information becomes publicly available other than
as a result of a breach of this Section, or which becomes available to the
Administrative Agent, the Issuing Bank, any Lender or any Related Party of any
of the foregoing on a nonconfidential basis from a source other than the
Borrower, (v) in connection with the exercise of any remedy hereunder or any
suit, action or proceeding relating to this Agreement or the enforcement of
rights hereunder, and (ix) subject to provisions substantially similar to this
Section 10.11, to any actual or prospective assignee or Participant, or (vi)
with the consent of the Borrower. Any Person required to maintain the
confidentiality of any information as provided for 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 its own confidential information.
Section 10.12 Interest Rate Limitation. Notwithstanding
anything herein to the contrary, if at any time the interest rate applicable to
any Loan, together with all fees, charges and other amounts which may be treated
as interest on such Loan under applicable law (collectively, the "Charges"),
shall exceed the maximum lawful rate of interest (the "Maximum Rate") which may
be contracted for, charged, taken, received or reserved by a Lender holding such
Loan in accordance with applicable law, the rate of interest payable in respect
of such Loan hereunder, together with all Charges payable in respect thereof,
shall be limited to the Maximum Rate and, to the extent lawful, the interest and
Charges that would have been payable in respect of such Loan but were not
payable as a result of the operation of this Section shall be cumulated and the
interest and Charges payable to such Lender in respect of other Loans or periods
shall be increased (but not above the Maximum Rate therefor) until such
cumulated amount, together with interest thereon at the Federal Funds Rate to
the date of repayment, shall have been received by such Lender.
(remainder of page left intentionally blank)
<PAGE>
-100-
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
RUBY TUESDAY, INC.,
as Borrower
By___________________________
Name:
Title:
[SEAL]
<PAGE>
SUNTRUST BANK,
as Administrative Agent, as Issuing Bank,
as Swingline Lender and as a Lender
By_________________________________
Name:
Title:
Revolving Commitment: $21,875,000
<PAGE>
BANK OF AMERICA, N.A.
By___________________________
Name: Dick Parkhurst
Title: Managing Director
Revolving Commitment: $21,875,000
<PAGE>
FLEET NATIONAL BANK
By___________________________
Name: Rob MacElhiney
Title: Vice President
Revolving Commitment: $12,500,000
<PAGE>
FIRSTAR BANK, N.A.
By___________________________
Name: Eric Hartman
Title: Assistant Vice President
Revolving Commitment: $12,500,000
<PAGE>
WACHOVIA BANK, N.A.
By___________________________
Name:
Title:
Revolving Commitment: $12,500,000
<PAGE>
AMSOUTH BANK
By___________________________
Name:
Title:
Revolving Commitment: $6,250,000
<PAGE>
REVOLVING CREDIT NOTE
$21,875,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to SUNTRUST BANK (the
"Lender") or its registered assigns, at the office of the Lender at 303
Peachtree Street NE, Atlanta, Georgia, on the Revolving Commitment Termination
Date (as defined in the Revolving Credit Agreement dated as of October 11, 2000
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto and SunTrust Bank, as administrative agent for the lenders, the
lesser of the principal sum of TWENTY-ONE MILLION EIGHT HUNDRED SEVENTY-FIVE
THOUSAND AND 00/100 DOLLARS ($21,875,000) and the aggregate unpaid principal
amount of all Revolving Loans made by the Lender to the Borrower pursuant to the
Credit Agreement, in lawful money of the United States of America in immediately
available funds, and to pay interest from the date hereof on the principal
amount thereof from time to time outstanding, in like funds, at said office, at
the rate or rates per annum and payable on such dates as provided in the Credit
Agreement. In addition, should legal action or an attorney-at-law be utilized to
collect any amount due hereunder, the Borrower further promises to pay all costs
of collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
Ruby Tuesday, Inc.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
REVOLVING CREDIT NOTE
$21,875,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to BANK OF AMERICA, N.A.
(the "Lender") or its registered assigns, at the office of the Lender at 100
North Tryon Street, Charlotte, North Carolina, on the Revolving Commitment
Termination Date (as defined in the Revolving Credit Agreement dated as of
October 11, 2000 (as the same may be amended, supplemented or otherwise modified
from time to time, the "Credit Agreement"), among the Borrower, the lenders from
time to time party thereto and SunTrust Bank, as administrative agent for the
lenders, the lesser of the principal sum of TWENTY-ONE MILLION EIGHT HUNDRED
SEVENTY-FIVE THOUSAND AND 00/100 DOLLARS ($21,875,000) and the aggregate unpaid
principal amount of all Revolving Loans made by the Lender to the Borrower
pursuant to the Credit Agreement, in lawful money of the United States of
America in immediately available funds, and to pay interest from the date hereof
on the principal amount thereof from time to time outstanding, in like funds, at
said office, at the rate or rates per annum and payable on such dates as
provided in the Credit Agreement. In addition, should legal action or an
attorney-at-law be utilized to collect any amount due hereunder, the Borrower
further promises to pay all costs of collection, including the reasonable
attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
Ruby Tuesday, Inc.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
REVOLVING CREDIT NOTE
$12,500,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to WACHOVIA BANK, N.A. (the
"Lender") or its registered assigns, at the office of the Lender at 191
Peachtree Street NE, Atlanta, Georgia, on the Revolving Commitment Termination
Date (as defined in the Revolving Credit Agreement dated as of October 11, 2000
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto and SunTrust Bank, as administrative agent for the lenders, the
lesser of the principal sum of TWELVE MILLION FIVE HUNDRED THOUSAND AND 00/100
DOLLARS ($12,500,000) and the aggregate unpaid principal amount of all Revolving
Loans made by the Lender to the Borrower pursuant to the Credit Agreement, in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date hereof on the principal amount thereof from time
to time outstanding, in like funds, at said office, at the rate or rates per
annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
Ruby Tuesday, Inc.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
REVOLVING CREDIT NOTE
$12,500,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to Fleet National Bank (the
"Lender") or its registered assigns, at the office of the Lender at 100 Federal
Street, Boston, Massachusetts, on the Revolving Commitment Termination Date (as
defined in the Revolving Credit Agreement dated as of October 11, 2000 (as the
same may be amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto and SunTrust Bank, as administrative agent for the lenders, the lesser
of the principal sum of TWELVE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($12,500,000) and the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Borrower pursuant to the Credit Agreement, in lawful
money of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement. In addition, should
legal action or an attorney-at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
Ruby Tuesday, Inc.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
REVOLVING CREDIT NOTE
$12,500,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to FIRSTAR BANK, N.A. (the
"Lender") or its registered assigns, at the office of the Lender at 7th and
Washington, St. Louis, Missouri, on the Revolving Commitment Termination Date
(as defined in the Revolving Credit Agreement dated as of October 11, 2000 (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the lenders from time to time party
thereto and SunTrust Bank, as administrative agent for the lenders, the lesser
of the principal sum of TWELVE MILLION FIVE HUNDRED THOUSAND AND 00/100 DOLLARS
($12,500,000) and the aggregate unpaid principal amount of all Revolving Loans
made by the Lender to the Borrower pursuant to the Credit Agreement, in lawful
money of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement. In addition, should
legal action or an attorney-at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
Ruby Tuesday, Inc.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
REVOLVING CREDIT NOTE
$6,250,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to AMSOUTH BANK(the
"Lender") or its registered assigns, at the office of the Lender at 505 South
Gray Street, Knoxville, Tennessee, on the Revolving Commitment Termination Date
(as defined in the Revolving Credit Agreement dated as of October 11, 2000 (as
the same may be amended, supplemented or otherwise modified from time to time,
the "Credit Agreement"), among the Borrower, the lenders from time to time party
thereto and SunTrust Bank, as administrative agent for the lenders, the lesser
of the principal sum of SIX MILLION TWO HUNDRED FIFTY THOUSAND AND 00/100
DOLLARS ($6,250,000) and the aggregate unpaid principal amount of all Revolving
Loans made by the Lender to the Borrower pursuant to the Credit Agreement, in
lawful money of the United States of America in immediately available funds, and
to pay interest from the date hereof on the principal amount thereof from time
to time outstanding, in like funds, at said office, at the rate or rates per
annum and payable on such dates as provided in the Credit Agreement. In
addition, should legal action or an attorney-at-law be utilized to collect any
amount due hereunder, the Borrower further promises to pay all costs of
collection, including the reasonable attorneys' fees of the Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Revolving Credit Note and all payments
and prepayments of the principal hereof and the date thereof shall be endorsed
by the holder hereof on the schedule attached hereto and made a part hereof or
on a continuation thereof which shall be attached hereto and made a part hereof,
or otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Revolving Credit
Note and the Credit Agreement.
This Revolving Credit Note is issued in connection with, and is
entitled to the benefits of, the Credit Agreement which, among other things,
contains provisions for the acceleration of the maturity hereof upon the
happening of certain events, for prepayment of the principal hereof prior to the
maturity hereof and for the amendment or waiver of certain provisions of the
Credit Agreement, all upon the terms and conditions therein specified. THIS
REVOLVING CREDIT NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE
LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE UNITED STATES OF
AMERICA.
Ruby Tuesday, Inc.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
SWINGLINE NOTE
$10,000,000 Atlanta, Georgia
October 11, 2000
FOR VALUE RECEIVED, the undersigned, Ruby Tuesday, Inc., a Georgia
corporation (the "Borrower"), hereby promises to pay to Suntrust Bank (the
"Swingline Lender") or its registered assigns, at the office of the Lender at
303 Peachtree Street NE, Atlanta, Georgia, on the Revolving Credit Termination
Date (as defined in the Revolving Credit Agreement dated as of October __, 2000
(as the same may be amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto and SunTrust Bank, as administrative agent for the lenders, the
lesser of the principal sum of TEN MILLION AND 00/100 DOLLARS ($10,000,000) and
the aggregate unpaid principal amount of all Swingline Loans made by the
Swingline Lender to the Borrower pursuant to the Credit Agreement, in lawful
money of the United States of America in immediately available funds, and to pay
interest from the date hereof on the principal amount thereof from time to time
outstanding, in like funds, at said office, at the rate or rates per annum and
payable on such dates as provided in the Credit Agreement. In addition, should
legal action or an attorney-at-law be utilized to collect any amount due
hereunder, the Borrower further promises to pay all costs of collection,
including the reasonable attorneys' fees of the Swingline Lender.
The Borrower promises to pay interest, on demand, at the Default Rate
(as defined in the Credit Agreement) on the terms and conditions set forth in
the Credit Agreement.
All borrowings evidenced by this Swingline Note and all payments and
prepayments of the principal hereof and the date thereof shall be endorsed by
the holder hereof on the schedule attached hereto and made a part hereof or on a
continuation thereof which shall be attached hereto and made a part hereof, or
otherwise recorded by such holder in its internal records; provided, that the
failure of the holder hereof to make such a notation or any error in such
notation shall not affect the obligations of the Borrower to make the payments
of principal and interest in accordance with the terms of this Swingline Note
and the Credit Agreement.
This Swingline Note is issued in connection with, and is entitled to
the benefits of, the Credit Agreement which, among other things, contains
provisions for the acceleration of the maturity hereof upon the happening of
certain events, for optional and mandatory prepayment of the principal hereof
prior to the maturity hereof and for the amendment or waiver of certain
provisions of the Credit Agreement, all upon the terms and conditions therein
specified. THIS SWINGLINE NOTE SHALL BE CONSTRUED IN ACCORDANCE WITH AND
GOVERNED BY THE LAWS OF THE STATE OF GEORGIA AND ANY APPLICABLE LAWS OF THE
UNITED STATES OF AMERICA.
RUBY TUESDAY, INC.
By:
Name:
Title:
<PAGE>
LOANS AND PAYMENTS
------- --------------------- --------------- ------------------ ---------------
Unpaid Principal Name of Person
Amount and Payments of Balance of Making
Date Type of Loan Principal Note Notation
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<PAGE>
THIS SUBSIDIARY GUARANTY AGREEMENT dated as of October 11, 2000, among each of
the Subsidiaries (each such subsidiary individually, a "Guarantor" and
collectively, the "Guarantors") of Ruby Tuesday, Inc., a Georgia corporation
(the "Borrower") from time to time parties hereto, and SunTrust Bank, a Georgia
banking corporation as administrative agent (the "Administrative Agent") for the
Lenders (as defined in the Credit Agreement referred to below).
Reference is made to the Revolving Credit Agreement dated as of October
11, 2000 (as amended, supplemented or otherwise modified from time to time, the
"Credit Agreement"), among the Borrower, the lenders from time to time party
thereto (the "Lenders") and SunTrust Bank, as Administrative Agent for the
Lenders (in such capacity, the "Administrative Agent"), swingline lender (in
such capacity, the "Swingline Lender") and issuing bank (in such capacity, the
"Issuing Bank"). Capitalized terms used herein and not defined herein shall have
the meanings assigned to such terms in the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. Each of the Guarantors is a direct or indirect wholly-owned
Subsidiary of the Borrower and acknowledges that it will derive substantial
benefit from the making of the Loans by the Lenders, and the issuance of the
Letters of Credit by the Issuing Bank. The obligations of the Lenders to make
Loans and of the Issuing Bank to issue Letters of Credit are conditioned on,
among other things, the execution and delivery by the Guarantors of this
Subsidiary Guaranty Agreement. As consideration therefor and in order to induce
the Lenders to make Loans and the Issuing Bank to issue Letters of Credit, the
Guarantors are willing to execute this Subsidiary Guaranty Agreement.
Accordingly, the parties hereto agree as follows:
SECTION 1. Guaranty. Each Guarantor unconditionally guaranties, jointly
with the other Guarantors and severally, as a primary obligor and not merely as
a surety, (a) the due and punctual payment of (i) the principal of and premium,
if any, and interest (including interest accruing at the Default Rate and
interest accruing during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding) on the Loans, when and as due, whether at
maturity, by acceleration, upon one or more dates set for prepayment or
otherwise, (ii) each payment required to be made by the Borrower under the
Credit Agreement in respect of any Letter of Credit, when and as due, including
payments in respect of reimbursement or disbursements, interest thereon and
obligations to provide cash collateral, and (iii) all other Obligations, whether
primary, secondary, direct, contingent, fixed or otherwise (including monetary
obligations incurred during the pendency of any bankruptcy, insolvency,
receivership or other similar proceeding, regardless of whether allowed or
allowable in such proceeding), of the Loan Parties to the Administrative Agent
and the Lenders under the Credit Agreement and the other Loan Documents, (b) the
due and punctual performance of all covenants, agreements, obligations and
liabilities of the Loan Parties under or pursuant to the Credit Agreement and
the other Loan Documents; and (c) the due and punctual payment and performance
of all obligations of the Borrower, monetary or otherwise, under each Hedging
Agreement entered into with a counterparty that was a Lender or an Affiliate of
a Lender at the time such Hedging Agreement was entered into (all the monetary
and other obligations referred to in the preceding clauses (a) through (c) being
collectively called the "Guaranteed Obligations"). Each Guarantor further agrees
that the Obligations may be extended or renewed, in whole or in part, without
notice to or further assent from it, and that it will remain bound upon its
guarantee notwithstanding any extension or renewal of any Obligation.
SECTION 2. Guaranteed Obligations Not Waived. To the fullest extent
permitted by applicable law, each Guarantor waives presentment to, demand of
payment from and protest to the Borrower of any of the Guaranteed Obligations,
and also waives notice of acceptance of its guarantee and notice of protest for
nonpayment. To the fullest extent permitted by applicable law, the obligations
of each Guarantor hereunder shall not be affected by (a) the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
or exercise any right or remedy against the Borrower or any other Guarantor
under the provisions of the Credit Agreement, any other Loan Document or
otherwise, (b) any rescission, waiver, amendment or modification of, or any
release from any of the terms or provisions of, this Agreement, any other Loan
Document, any Guaranty or any other agreement, including with respect to any
other Guarantor under this Agreement, or (c) the failure to perfect any security
interest in, or the release of, any of the security held by or on behalf of the
Administrative Agent or any Lender.
SECTION 3. Guaranty of Payment. Each Guarantor further agrees that its
guarantee constitutes a guarantee of payment when due and not of collection, and
waives any right to require that any resort be had by the Administrative Agent
or any Lender to any of the security held for payment of the Guaranteed
Obligations or to any balance of any deposit account or credit on the books of
the Administrative Agent or any Lender in favor of the Borrower or any other
person.
SECTION 4. No Discharge or Diminishment of Guaranty. The obligations of
each Guarantor hereunder shall not be subject to any reduction, limitation,
impairment or termination for any reason (other than the indefeasible payment in
full in cash of the Guaranteed Obligations), including any claim of waiver,
release, surrender, alteration or compromise of any of the Guaranteed
Obligations, and shall not be subject to any defense or setoff, counterclaim,
recoupment or termination whatsoever by reason of the invalidity, illegality or
unenforceability of the Guaranteed Obligations or otherwise. Without limiting
the generality of the foregoing, the obligations of each Guarantor hereunder
shall not be discharged or impaired or otherwise affected by the failure of the
Administrative Agent or any Lender to assert any claim or demand or to enforce
any remedy under the Credit Agreement, any other Loan Document or any other
agreement, by any waiver or modification of any provision of any thereof, by any
default, failure or delay, willful or otherwise, in the performance of the
Guaranteed Obligations, or by any other act or omission that may or might in any
manner or to the extent vary the risk of any Guarantor or that would otherwise
operate as a discharge of each Guarantor as a matter of law or equity (other
than the indefeasible payment in full in cash of all the Guaranteed
Obligations).
SECTION 5. Defenses of Borrower Waived. To the fullest extent permitted
by applicable law, each Guarantor waives any defense based on or arising out of
any defense of the Borrower or the unenforceability of the Guaranteed
Obligations or any part thereof from any cause, or the cessation from any cause
of the liability of the Borrower, other than the final and indefeasible payment
in full in cash of the Guaranteed Obligations. The Administrative Agent and the
Lenders may, at their election, foreclose on any security held by one or more of
them by one or more judicial or nonjudicial sales, accept an assignment of any
such security in lieu of foreclosure, compromise or adjust any part of the
Guaranteed Obligations, make any other accommodation with the Borrower or any
other guarantor, without affecting or impairing in any way the liability of any
Guarantor hereunder except to the extent the Guaranteed Obligations have been
fully, finally and indefeasibly paid in cash. Pursuant to applicable law, each
Guarantor waives any defense arising out of any such election even though such
election operates, pursuant to applicable law, to impair or to extinguish any
right of reimbursement or subrogation or other right or remedy of such Guarantor
against the Borrower or any other Guarantor or guarantor, as the case may be, or
any security.
SECTION 6. Agreement to Pay; Subordination. In furtherance of the
foregoing and not in limitation of any other right that the Administrative Agent
or any Lender has at law or in equity against any Guarantor by virtue hereof,
upon the failure of the Borrower or any other Loan Party to pay any Obligation
when and as the same shall become due, whether at maturity, by acceleration,
after notice of prepayment or otherwise, each Guarantor hereby promises to and
will forthwith pay, or cause to be paid, to the Administrative Agent for the
benefit of the Lenders in cash the amount of such unpaid Guaranteed Obligations.
Upon payment by any Guarantor of any sums to the Administrative Agent, all
rights of such Guarantor against the Borrower arising as a result thereof by way
of right of subrogation, contribution, reimbursement, indemnity or otherwise
shall in all respects be subordinate and junior in right of payment to the prior
indefeasible payment in full in cash of all the Guaranteed Obligations. In
addition, any indebtedness of the Borrower now or hereafter held by any
Guarantor is hereby subordinated in right of payment to the prior payment in
full in cash of the Guaranteed Obligations. If any amount shall erroneously be
paid to any Guarantor on account of (i) such subrogation, contribution,
reimbursement, indemnity or similar right or (ii) any such indebtedness of the
Borrower, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lenders and shall forthwith be paid to the
Administrative Agent to be credited against the payment of the Guaranteed
Obligations, whether matured or unmatured, in accordance with the terms of the
Loan Documents.
SECTION 7. Information. Each Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks that
such Guarantor assumes and incurs hereunder, and agrees that none of the
Administrative Agent or the Lenders will have any duty to advise any of the
Guarantors of information known to it or any of them regarding such
circumstances or risks.
SECTION 8. Representations and Warranties. Each Guarantor represents
and warrants as to itself that all representations and warranties relating to it
(as a Subsidiary of the Borrower) contained in the Credit Agreement are true and
correct.
SECTION 9. Termination. The guaranties made hereunder (a) shall
terminate when all the Guaranteed Obligations have been paid in full in cash and
the Lenders have no further commitment to lend under the Credit Agreement, the
LC Exposure has been reduced to zero and the Issuing Bank has no further
obligation to issue Letters of Credit under the Credit Agreement and (b) shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of any Obligation is rescinded or must otherwise
be restored by any Lender or any Guarantor upon the bankruptcy or reorganization
of the Borrower, any Guarantor or otherwise. Notwithstanding anything to the
contrary herein or in the Credit Agreement, the guaranty made hereunder by Tia's
shall terminate automatically upon the sale of substantially all of the assets
of Tia's (including the sale of all of the member interests of Tia's or the
merger of Tia's into another entity where such other entity is the surviving
entity) to the extent permitted under the Credit Agreement. In connection with
the foregoing, the Administrative Agent shall execute and deliver to such
Guarantor or Guarantor's designee, at such Guarantor's expense, any documents or
instruments which such Guarantor shall reasonably request from time to time to
evidence such termination and release.
SECTION 10. Binding Effect; Several Agreement; Assignments. Whenever in
this Agreement any of the parties hereto is referred to, such reference shall be
deemed to include the successors and assigns of such party; and all covenants,
promises and agreements by or on behalf of the Guarantors that are contained in
this Agreement shall bind and inure to the benefit of each party hereto and
their respective successors and assigns. This Agreement shall become effective
as to any Guarantor when a counterpart hereof executed on behalf of such
Guarantor shall have been delivered to the Administrative Agent, and a
counterpart hereof shall have been executed on behalf of the Administrative
Agent, and thereafter shall be binding upon such Guarantor and the
Administrative Agent and their respective successors and assigns, and shall
inure to the benefit of such Guarantor, the Administrative Agent and the
Lenders, and their respective successors and assigns, except that no Guarantor
shall have the right to assign its rights or obligations hereunder or any
interest herein (and any such attempted assignment shall be void). If all of the
capital stock or other equity interest of a Guarantor, including Tia's, is sold,
transferred or otherwise disposed of pursuant to a transaction permitted by the
Credit Agreement (including the sale of all of the member interests of Tia's or
the merger of Tia's into another entity where such other entity is the surviving
entity), such Guarantor shall be released from its Guaranteed Obligations under
this Agreement without further action, and upon request of such Guarantor or the
Borrower, the Administrative Agent will execute and deliver to the Borrower, at
the Borrower's expense, such additional documents, instruments or agreements
(all of which shall be prepared by the Borrower) as the Borrower or Guarantor
shall reasonably request to further evidence the termination of this Guaranty.
This Agreement shall be construed as a separate agreement with respect to each
Guarantor and may be amended, modified, supplemented, waived or released with
respect to any Guarantor without the approval of any other Guarantor and without
affecting the Guaranteed Obligations of any other Guarantor hereunder.
SECTION 11. Waivers; Amendment. (a) No failure or delay of the
Administrative Agent of any in exercising any power or right hereunder shall
operate as a waiver thereof, nor shall any single or partial exercise of any
such right or power, or any abandonment or discontinuance of steps to enforce
such a right or power, preclude any other or further exercise thereof or the
exercise of any other right or power. The rights and of the Administrative Agent
hereunder and of the Lenders under the other Loan Documents are cumulative and
are not exclusive of any rights or remedies that they would otherwise have. No
waiver of any provision of this Agreement or consent to any departure by any
Guarantor therefrom shall in any event be effective unless the same shall be
permitted by paragraph (b) below, and then such waiver and consent shall be
effective only in the specific instance and for the purpose for which given. No
notice or demand on any Guarantor in any case shall entitle such Guarantor to
any other or further notice in similar or other circumstances.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Guarantors with respect to which such waiver, amendment or
modification relates and the Administrative Agent, with the prior written
consent of the Required Lenders (except as otherwise provided in the Credit
Agreement).
SECTION 12. Governing Law. THIS AGREEMENT SHALL BE CONSTRUED IN
ACCORDANCE WITH AND GOVERNED BY THE LAW (WITHOUT GIVING EFFECT TO THE CONFLICT
OF LAW PRINCIPLES THEREOF) OF THE STATE OF GEORGIA.
SECTION 13. Notices. All communications and notices hereunder shall be
in writing and given as provided in Section 10.1 of the Credit Agreement. All
communications and notices hereunder to each Guarantor shall be given to it at
its address set forth on Schedule I attached hereto.
SECTION 14. Survival of Agreement; Severability. (a) All covenants,
agreements representations and warranties made by the Guarantors herein and in
the certificates or other instruments prepared or delivered in connection with
or pursuant to this Agreement or the other Loan Documents shall be considered to
have been relied upon by the Administrative Agent and the Lenders and shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank regardless of any investigation made by any of
them or on their behalf, and shall continue in full force and effect as long as
the principal of or any accrued interest on any Loan or any other fee or amount
payable under this Agreement or any other Loan Document is outstanding and
unpaid or the LC Exposure does not equal zero and as long as the Commitments
have not been terminated.
(b) In the event one or more of the provisions contained in
this Agreement or in any other Loan Document should be held invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remaining provisions contained herein and therein shall not in any way be
affected or impaired thereby (it being understood that the invalidity of a
particular provision in a particular jurisdiction shall not in and of itself
affect the validity of such provision in any other jurisdiction). The parties
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 15. Counterparts. This Agreement may be executed in
counterparts, each of which shall constitute an original, but all of which when
taken together shall constitute a single contract (subject to Section 10), and
shall become effective as provided in Section 10. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually executed counterpart of this Agreement.
SECTION 16. Rules of Interpretation. The rules of interpretation
------------------------
specified in Section 1.4 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 17. Jurisdiction; Consent to Service of Process. (a) Each
Guarantor hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any Georgia State court or Federal
court of the United States of America sitting in Atlanta, Georgia, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or the other Loan Documents, or for recognition or
enforcement of any judgment, and each of the parties hereto hereby irrevocably
and unconditionally agrees that all claims in respect of any such action or
proceeding may be heard and determined in such Georgia State court or, to the
extent permitted by law, in such Federal court. Each of the parties hereto
agrees that a final judgment in any such 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. Nothing in this Agreement shall affect any
right that the Administrative Agent, the Issuing Bank or any Lender may
otherwise have to bring any action or proceeding relating to this Agreement or
the other Loan Documents against any Guarantor or its properties in the courts
of any jurisdiction.
(b) Each Guarantor hereby irrevocably and unconditionally waives, to
the fullest extent it may legally and effectively do so, any objection that it
may now or hereafter have to the laying of venue of any suit, action or
proceeding arising out of or relating to this Agreement or the other Loan
Documents in any Georgia State or Federal court. Each of the parties hereto
hereby irrevocably waives, to the fullest extent permitted by law, the defense
of an inconvenient forum to the maintenance of such action or proceeding in any
such court.
(c) Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 13. Nothing in this
Agreement will affect the right of any party to this Agreement to serve process
in any other manner permitted by law.
SECTION 18. Waiver of Jury Trial. EACH PARTY HERETO HEREBY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF,
UNDER OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER LOAN DOCUMENTS. EACH
PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY
OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY 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 AGREEMENT AND THE OTHER LOAN DOCUMENTS, AS APPLICABLE, BY, AMONG OTHER
THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 18.
SECTION 19. Waiver of Certain Damages. To the extent permitted by
applicable law, no Guarantor shall assert, and each Guarantor hereby waives, any
claim against any Indemnitee, on any theory of liability, for special, indirect,
consequential or punitive damages (as opposed to actual or direct damages)
arising out of, in connection with or as a result of, this Subsidiary Guaranty
Agreement or any agreement or instrument contemplated hereby, the transactions
contemplated therein, any Loan or any Letter of Credit or the use of proceeds
thereof.
SECTION 20. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party that was not in existence on the
date of the Credit Agreement is required to enter into this Agreement as a
Guarantor upon becoming Subsidiary Loan Party. Upon execution and delivery after
the date hereof by the Administrative Agent and such Subsidiary Loan Party of an
instrument in the form of Annex 1, such Subsidiary Loan Party shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor herein. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any other Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
Section 21. Savings Clause. It is the intent of each Guarantor and
----------------
the other Loan Parties that each Guarantor's maximum Guaranteed Obligations
hereunder shall be, but not in excess of:
(a) in a case or proceeding commenced by or against any
Guarantor under the Bankruptcy Code on or within one year from the date on which
any of the Guaranteed Obligations are incurred, the maximum amount which would
not otherwise cause the Guaranteed Obligations (or any other Guaranteed
Obligations of such Guarantor to the other Loan Parties) to be avoidable or
unenforceable against such Guarantor under (A) Section 548 of the Bankruptcy
Code or (B) any state fraudulent transfer or fraudulent conveyance act or
statute applied in such case or proceeding by virtue of Section 544 of the
Bankruptcy Code; or
(b) in a case or proceeding commenced by or against any
Guarantor under the Bankruptcy Code subsequent to one year from the date on
which any of the Guaranteed Obligations are incurred, the maximum amount which
would not otherwise cause the Guaranteed Obligations (or any other Guaranteed
Obligations of such Guarantor to the other Loan Parties) to be avoidable or
unenforceable against such Guarantor under any state fraudulent transfer or
fraudulent conveyance act or statute applied in any such case or proceeding by
virtue of Section 544 of the Bankruptcy Code; or
(c) in a case or proceeding commenced by or against any
Guarantor under any law, statute or regulation other than the Bankruptcy Code
(including, without limitation, any other bankruptcy, reorganization,
arrangement, moratorium, readjustment of debt, dissolution, liquidation or
similar debtor relief laws), the maximum amount which would not otherwise cause
the Guaranteed Obligations (or any other Guaranteed Obligations of such
Guarantor to the other Loan Parties) to be avoidable or unenforceable against
such Guarantor under such law, statute or regulation including, without
limitation, any state fraudulent transfer or fraudulent conveyance act or
statute applied in any such case or proceeding.
(The substantive laws under which the possible avoidance or unenforceability of
the Guaranteed Obligations (or any other Guaranteed Obligations of such
Guarantor to the other Loan Parties) shall be determined in any such case or
proceeding shall hereinafter be referred to as the "Avoidance Provisions").
(d) To the extent set forth in Section 20(a),(b), and (c), but
only to the extent that the Guaranteed Obligations would otherwise be subject to
avoidance under the Avoidance Provisions, if any Guarantor is not deemed to have
received valuable consideration, fair value or reasonably equivalent value for
the Guaranteed Obligations, or if the Guaranteed Obligations would render such
Guarantor insolvent, or leave such Guarantor with an unreasonably small capital
to conduct its business, or cause such Guarantor to have incurred debts (or to
have intended to have incurred debts) beyond its ability to pay such debts as
they mature, in each case as of the time any of the Guaranteed Obligations are
deemed to have been incurred under the Avoidance Provisions and after giving
effect to the contribution by such Guarantor, the maximum Guaranteed Obligations
for which such Guarantor shall be liable hereunder shall be reduced to that
amount which, after giving effect thereto, would not cause the Guaranteed
Obligations (or any other Guaranteed Obligations of such Guarantor to the other
Loan Parties), as so reduced, to be subject to avoidance under the Avoidance
Provisions. This Section 20 is intended solely to preserve the rights of the
Loan Parties hereunder to the maximum extent that would not cause the Guaranteed
Obligations of such Guarantor to be subject to avoidance under the Avoidance
Provisions, and neither the Guarantors nor any other Person shall have any right
or claim under this Section 20 as against the Loan Parties that would not
otherwise be available to such Person under the Avoidance Provisions.
SECTION 22. Right of Setoff. If an Event of Default shall have occurred
and be continuing, each Lender and the Issuing Bank are hereby authorized at any
time and from time to time, to the fullest extent permitted by law, to set off
and apply any and all deposits (general or special, time or demand, provisional
or final) at any time held and other Indebtedness at any time owing by such
Lender or the Issuing Bank to or for the credit or the account of any Guarantor
against any or all the Guaranteed Obligations of such Guarantor now or hereafter
existing under this Agreement and the other Loan Documents held by such Lender
or the Issuing Bank, irrespective of whether or not such Person shall have made
any demand under this Agreement or any other Loan Document and although such
Guaranteed Obligations may be unmatured. The rights of each Lender and the
Issuing Bank under this Section 22 are in addition to other rights and remedies
(including other rights of setoff) which such Lender or the Issuing Bank, as the
case may be, may have.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the day and year first above written.
RUBY TUESDAY, LLC
By:
Name:
Title:
RUBY TUESDAY BUSINESS
DEVELOPMENT, INC.
By:
Name:
Title:
TIA'S, LLC
By:
Name:
Title:
SUNTRUST BANK, as
Administrative Agent
By:
Name:
Title:
<PAGE>
SCHEDULE I TO THE SUBSIDIARY GUARANTY AGREEMENT
Guarantor(s) Address
<PAGE>
ANNEX 1 TO THE SUBSIDIARY GUARANTY AGREEMENT
SUPPLEMENT NO. [ ] dated as of [ ], to the Subsidiary Guaranty
Agreement (the "Guaranty Agreement") dated as of October 11, 2000 among each of
the subsidiaries listed on Schedule I thereto (each such Subsidiary
individually, a "Guarantor" and collectively, the "Guarantors") of RUBY TUESDAY,
INC., a Tennessee corporation (the "Borrower"), and SUNTRUST BANK, a Georgia
banking corporation, as Administrative Agent (the "Administrative Agent") for
the Lenders (as defined in the Credit Agreement referred to below).
A. Reference is made to the Revolving Credit Agreement dated as of
October __, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and SunTrust Bank, as Administrative Agent,
swingline lender and issuing bank (in such capacity, the "Issuing Bank").
Capitalized terms used herein and not otherwise defined herein shall have the
meanings assigned to such terms in the Credit Agreement.
B. Capitalized terms used herein and not otherwise defined herein shall
have the meanings assigned to such terms in the Guaranty Agreement and the
Credit Agreement.
C. The Guarantors have entered into the Guaranty Agreement in order to
induce the Lenders to make Loans and the Issuing Bank to issue Letters of
Credit. Pursuant to Section 5.10 of the Credit Agreement, each Subsidiary Loan
Party that was not in existence or not a Subsidiary Loan Party on the date of
the Credit Agreement is required to enter into the Guaranty Agreement as a
Guarantor upon becoming a Subsidiary Loan Party. Section 19 of the Guaranty
Agreement provides that additional Subsidiaries of the Borrower may become
Guarantors under the Guaranty Agreement by execution and delivery of an
instrument in the form of this Supplement. The undersigned Subsidiary of the
Borrower (the "New Guarantor") is executing this Supplement in accordance with
the requirements of the Credit Agreement to become a Guarantor under the
Guaranty Agreement in order to induce the Lenders to make additional Loans and
the Issuing Bank to issue additional Letters of Credit and as consideration for
Loans previously made and Letters of Credit previously issued.
Accordingly, the Administrative Agent and the New Guarantor agree as follows:
SECTION 1. In accordance with Section 19 of the Guaranty Agreement, the
New Guarantor by its signature below becomes a Guarantor under the Guaranty
Agreement with the same force and effect as if originally named therein as a
Guarantor and the New Guarantor hereby (a) agrees to all the terms and
provisions of the Guaranty Agreement applicable to it as Guarantor thereunder
and (b) represents and warrants that the representations and warranties made by
it as a Guarantor thereunder are true and correct on and as of the date hereof.
Each reference to a Guarantor in the Guaranty Agreement shall be deemed to
include the New Guarantor. The Guaranty Agreement is hereby incorporated herein
by reference.
SECTION 2. The New Guarantor represents and warrants to the
Administrative Agent and the Lenders that this Supplement has been duly
authorized, executed and delivered by it and constitutes its legal, valid and
binding obligation, enforceable against it in accordance with its terms.
SECTION 3. This Supplement may be executed in counterparts each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Supplement shall become effective when the
Administrative Agent shall have received counterparts of this Supplement that,
when taken together, bear the signatures of the New Guarantor and the
Administrative Agent. Delivery of an executed signature page to this Supplement
by facsimile transmission shall be as effective as delivery of a manually signed
counterpart of this Supplement.
SECTION 4. Except as expressly supplemented hereby, the Guaranty
Agreement shall remain in full force and effect.
SECTION 5. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. In case any one or more of the provisions contained in this
Supplement should be held invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and in the Guaranty Agreement shall not in any way be affected or
impaired thereby (it being understood that the invalidity of a particular
provision hereof in a particular jurisdiction shall not in and of itself affect
the validity of such provision in any other jurisdiction). The parties hereto
shall endeavor in good-faith negotiations to replace the invalid, illegal or
unenforceable provisions with valid provisions the economic effect of which
comes as close as possible to that of the invalid, illegal or unenforceable
provisions.
SECTION 7. All communications and notices hereunder shall be in writing
and given as provided in Section 13 of the Guaranty Agreement. All
communications and notices hereunder to the New Guarantor shall be given to it
at the address set forth under its signature below, with a copy to the Borrower.
SECTION 8. The New Guarantor agrees to reimburse the Administrative
Agent for its out-of-pocket expenses in connection with this Supplement,
including the reasonable fees, disbursements and other charges actually incurred
of counsel for the Administrative Agent.
<PAGE>
IN WITNESS WHEREOF, the New Guarantor and the Administrative
Agent have duly executed this Supplement to the Guaranty Agreement as of the day
and year first above written.
[Name of New Guarantor]
By:
Name:
Title:
Address:
SUNTRUST BANK, as
Administrative Agent
By:
Name:
Title:
<PAGE>
INDEMNITY, SUBROGATION, and CONTRIBUTION AGREEMENT
This INDEMNITY, SUBROGATION and CONTRIBUTION AGREEMENT dated as of
October 11, 2000 , among RUBY TUESDAY, INC., a Georgia corporation (the
"Borrower"), each Subsidiary listed on Schedule I hereto (the "Guarantors"),
SUNTRUST BANK, a Georgia banking corporation, as administrative agent (in such
capacity, the "Administrative Agent") for the Lenders (as defined in the Credit
Agreement referred to below).
Reference is made to (a) the Revolving Credit Agreement dated as of
October 11, 2000 (as amended, supplemented or otherwise modified from time to
time, the "Credit Agreement"), among the Borrower, the lenders from time to time
party thereto (the "Lenders") and SunTrust Bank, as Administrative Agent,
swingline lender and issuing bank (in such capacity, the "Issuing Bank"), and
(b) the Subsidiary Guaranty Agreement dated as October 11, 2000 , among the
Guarantors and the Administrative Agent (as amended, supplemented or otherwise
modified from time to time, the "Guaranty Agreement"). Capitalized terms used
herein and not defined herein shall have the meanings assigned to such terms in
the Credit Agreement.
The Lenders have agreed to make Loans to the Borrower, and the Issuing
Bank has agreed to issue Letters of Credit for the account of the Borrower,
pursuant to, and upon the terms and subject to the conditions specified in, the
Credit Agreement. The Guarantors have guaranteed such Loans and the other
Obligations (as defined in the Guaranty Agreement) of the Borrower under the
Credit Agreement pursuant to the Guaranty Agreement. The obligations of the
Lenders to make Loans and of the Issuing Bank to issue Letters of Credit are
conditioned on, among other things, the execution and delivery by the Borrower
and the Guarantors of an agreement in the form hereof.
Accordingly, the Borrower, each Guarantor and the Administrative Agent agree as
follows:
SECTION 1. Indemnity and Subrogation. In addition to all such rights of
indemnity and subrogation as the Guarantors may have under applicable law (but
subject to Section 3), the Borrower agrees that in the event a payment shall be
made by any Guarantor under the Guaranty Agreement, the Borrower shall indemnify
such Guarantor for the full amount of such payment and such Guarantor shall be
subrogated to the rights of the person to whom such payment shall have been made
to the extent of such payment.
SECTION 2. Contribution and Subrogation. Each Guarantor (a
"Contributing Guarantor") agrees (subject to Section 3) that, in the event a
payment shall be made by any other Guarantor under the Guaranty Agreement and
such other Guarantor (the "Claiming Guarantor") shall not have been fully
indemnified by the Borrower as provided in Section 1, the Contributing Guarantor
shall indemnify the Claiming Guarantor in an amount equal to the amount of such
payment or the greater of the book value or the fair market value of such
assets, as the case may be, in each case multiplied by a fraction of which the
numerator shall be the net worth of the Contributing Guarantor on the date
hereof and the denominator shall be the aggregate net worth of all the
Guarantors on the date hereof (or, in the case of any Guarantor becoming a party
hereto pursuant to Section 12, the date of the Supplement hereto executed and
delivered by such Guarantor). Any Contributing Guarantor making any payment to a
Claiming Guarantor pursuant to this Section 2 shall be subrogated to the rights
of such Claiming Guarantor under Section 1 to the extent of such payment.
SECTION 3. Subordination. Notwithstanding any provision of this
Agreement to the contrary, all rights of the Guarantors under Sections 1 and 2
and all other rights of indemnity, contribution or subrogation under applicable
law or otherwise shall be fully subordinated to the indefeasible payment in full
in cash of the Obligations. No failure on the part of the Borrower or any
Guarantor to make the payments required under applicable law or otherwise shall
in any respect limit the obligations and liabilities of any Guarantor with
respect to its obligations hereunder, and each Guarantor shall remain liable for
the full amount of the obligations of such Guarantor hereunder.
SECTION 4. Termination. This Agreement shall survive and be in full
force and effect so long as any Obligation is outstanding and has not been
indefeasibly paid in full in cash, and so long as the LC Exposure has not been
reduced to zero or any of the Commitments under the Credit Agreement have not
been terminated, and shall continue to be effective or be reinstated, as the
case may be, if at any time payment, or any part thereof, of any Obligation is
rescinded or must otherwise be restored by any Lender or any Guarantor upon the
bankruptcy or reorganization of the Borrower, any Guarantor or otherwise.
SECTION 5. Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY, AND
--------------
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF GEORGIA.
SECTION 6. No Waiver; Amendment. (a) No failure on the part of the
Administrative Agent or any Guarantor to exercise, and no delay in exercising,
any right, power or remedy hereunder shall operate as a waiver thereof, nor
shall any single or partial exercise of any such right, power or remedy by the
Administrative Agent or any Guarantor preclude any other or further exercise
thereof or the exercise of any other right, power or remedy. All remedies
hereunder are cumulative and are not exclusive of any other remedies provided by
law. None of the Administrative Agent and the Guarantors shall be deemed to have
waived any rights hereunder unless such waiver shall be in writing and signed by
such parties.
(b) Neither this Agreement nor any provision hereof may be
waived, amended or modified except pursuant to a written agreement entered into
between the Borrower, the Guarantors and the Administrative Agent, with the
prior written consent of the Required Lenders (except as otherwise provided in
the Credit Agreement).
SECTION 7. Notices. All communications and notices hereunder shall
-------
be in writing and given as provided in the Guaranty Agreement and addressed as
specified therein.
SECTION 8. Binding Agreement; Assignments. Whenever in this Agreement
any of the parties hereto is referred to, such reference shall be deemed to
include the successors and assigns of such party; and all covenants, promises
and agreements by or on behalf of the parties that are contained in this
Agreement shall bind and inure to the benefit of their respective successors and
assigns. Neither the Borrower nor any Guarantor may assign or transfer any of
its rights or obligations hereunder (and any such attempted assignment or
transfer shall be void) without the prior written consent of the Required
Lenders. Notwithstanding the foregoing, at the time any Guarantor is released
from its obligations under the Guaranty Agreement in accordance with such
Guaranty Agreement and the Credit Agreement, such Guarantor will cease to have
any rights or obligations under this Agreement.
SECTION 9. Survival of Agreement; Severability. (a) All covenants and
agreements made by the Borrower and each Guarantor herein and in the
certificates or other instruments prepared or delivered in connection with this
Agreement or the other Loan Documents shall be considered to have been relied
upon by the Administrative Agent, the Lenders and each Guarantor and shall
survive the making by the Lenders of the Loans and the issuance of the Letters
of Credit by the Issuing Bank, and shall continue in full force and effect as
long as the principal of or any accrued interest on any Loans or any other fee
or amount payable under the Credit Agreement or this Agreement or under any of
the other Loan Documents is outstanding and unpaid or the LC Exposure does not
equal zero and as long as the Commitments have not been terminated.
(b) In case one or more of the provisions contained in this Agreement
should be held invalid, illegal or unenforceable in any respect, no party hereto
shall be required to comply with such provision for so long as such provision is
held to be invalid, illegal or unenforceable, but the validity, legality and
enforceability of the remaining provisions contained herein shall not in any way
be affected or impaired thereby. The parties shall endeavor in good-faith
negotiations to replace the invalid, illegal or unenforceable provisions with
valid provisions the economic effect of which comes as close as possible to that
of the invalid, illegal or unenforceable provisions.
SECTION 10. Counterparts. This Agreement may be executed in
counterparts (and by different parties hereto on different counterparts) each of
which shall constitute an original, but all of which when taken together shall
constitute a single contract. This Agreement shall be effective with respect to
any Guarantor when a counterpart bearing the signature of such Guarantor shall
have been delivered to the Administrative Agent. Delivery of an executed
signature page to this Agreement by facsimile transmission shall be as effective
as delivery of a manually signed counterpart of this Agreement.
SECTION 11. Rules of Interpretation. The rules of interpretation
------------------------
specified in Section 1.4 of the Credit Agreement shall be applicable to this
Agreement.
SECTION 12. Additional Guarantors. Pursuant to Section 5.10 of the
Credit Agreement, each Subsidiary Loan Party of the Borrower that was not in
existence or not such a Subsidiary Loan Party on the date of the Credit
Agreement is required to enter into the Guaranty Agreement as Guarantor upon
becoming such a Subsidiary Loan Party. Upon the execution and delivery, after
the date hereof, by the Administrative Agent and such Subsidiary of an
instrument in the form of Annex I hereto, such Subsidiary shall become a
Guarantor hereunder with the same force and effect as if originally named as a
Guarantor hereunder. The execution and delivery of any instrument adding an
additional Guarantor as a party to this Agreement shall not require the consent
of any Guarantor hereunder. The rights and obligations of each Guarantor
hereunder shall remain in full force and effect notwithstanding the addition of
any new Guarantor as a party to this Agreement.
<PAGE>
EXHIBIT C
FORM OF
ASSIGNMENT AND ACCEPTANCE
October __, 2000
Reference is made to the Revolving Credit Agreement dated as of October
__, 2000 (as amended and in effect on the date hereof, the "Credit Agreement"),
among RUBY TUESDAY, INC., a Georgia corporation, the Lenders from time to time
party hereto and SunTrust Bank, as Administrative Agent for the Lenders. Terms
defined in the Credit Agreement are used herein with the same meanings.
The Assignor hereby sells and assigns, without recourse, to the
Assignee designated below, and the Assignee hereby purchases and assumes,
without recourse, from the Assignor, effective as of the Assignment Date set
forth below, the interests set forth below (the "Assigned Interest") in the
Assignor's rights and obligations under the Credit Agreement, including, without
limitation, the interests set forth below in the Revolving Commitment of the
Assignor on the Assignment Date and Revolving Loans owing to the Assignor which
are outstanding on the Assignment Date, together with the participations in the
LC Exposure and the Swingline Exposure of the Assignor on the Assignment Date,
but excluding accrued interest and fees to and excluding the Assignment Date.
The Assignee hereby acknowledges receipt of a copy of the Credit Agreement. From
and after the Assignment Date (i) the Assignee shall be a party to and be bound
by the provisions of the Credit Agreement and, to the extent of the Assigned
Interest, have the rights and obligations of a Lender thereunder and (ii) the
Assignor shall, to the extent of the Assigned Interest, relinquish its rights
and be released from its obligations under the Credit Agreement.
This Assignment and Acceptance is being delivered to the Administrative
Agent together with (i) if the Assignee is a Foreign Lender, any documentation
required to be delivered by the Assignee pursuant to Section 2.19(e) of the
Credit Agreement, duly completed and executed by the Assignee, and (ii) if the
Assignee is not already a Lender under the Credit Agreement, an Administrative
Questionnaire in the form supplied by the Administrative Agent, duly completed
by the Assignee. The Assignee shall pay the fee payable to the Administrative
Agent pursuant to Section 10.4(b) of the Credit Agreement.
This Assignment and Acceptance shall be governed by and construed in
accordance with the laws of the State of Georgia.
Date of Assignment:
Legal Name of Assignor:
Legal Name of Assignee:
Assignee's Address for Notices:
Effective Date of Assignment:
("Assignment Date"):
<PAGE>
Percentage Assigned of Revolving Commitment (set forth, to at least 8 decimals,
as a percentage of the aggregate Revolving Commitments of all Lenders
thereunder) Principal Amount Facility Assigned Revolving Loans: $ %
The terms set forth above are hereby agreed to:
[Name of Assignor], as Assignor
By:
Name:
Title:
[Name of Assignee], as Assignee
By:
Name:
Title:
The undersigned hereby consents to the within assignment:
Ruby Tuesday, Inc. SunTrust Bank, as
Administrative Agent:
By: By:
-----------------------------------------
Name: Name:
Title: Title:
SunTrust Bank, as
Issuing Bank:
By:
Name:
Title:
<PAGE>
EXHIBIT 2.3
NOTICE OF REVOLVING BORROWING
[DATE]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Attention:
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of
September __, 2000 (as amended and in effect on the date hereof, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent, Issuing Bank, and Swingline Lender.
Terms defined in the Credit Agreement are used herein with the same meanings.
This notice constitutes a Notice of Revolving Borrowing, and the Borrower hereby
requests a Revolving Borrowing under the Credit Agreement, and in that
connection the Borrower specifies the following information with respect to the
Revolving Borrowing requested hereby:
(A) Aggregate principal amount of Revolving Borrowing :
(B) Date of Revolving Borrowing (which is a Business Day):
(C) Interest Rate basis:
(D) Interest Period (if Eurodollar loan) :
(E) Location and number of Borrower's account to which proceeds of
Revolving Borrowing are to be disbursed:
The Borrower hereby represents and warrants that the conditions
specified in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement
are satisfied.
Very truly yours,
RUBY TUESDAY, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT 2.5
NOTICE OF SWINGLINE BORROWING
[date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Attention:
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of October
__, 2000 (as amended, restated, supplemented or modified from time to time, the
"Credit Agreement"), among the undersigned, as Borrower, the Lenders named
therein, and SunTrust Bank, as Administrative Agent, Issuing Bank, and Swingline
Lender. Terms defined in the Credit Agreement are used herein with the same
meanings. This notice constitutes a Notice of Swingline Borrowing, and the
Borrower hereby requests a Swingline Borrowing under the Credit Agreement, and
in that connection the Borrower specifies the following information with respect
to the Swingline Borrowing requested hereby:
(A) Principal amount of Swingline Loan :
(B) Date of Swingline Loan (which is a Business Day)
(C) Location and number of Borrower's account to which proceeds of
Swingline Loan are to be disbursed:
The Borrower hereby represents and warrants that the conditions
specified in paragraphs (a), (b) and (c) of Section 3.2 of the Credit Agreement
are satisfied.
Very truly yours,
RUBY TUESDAY, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT 3.1(b)(iv)
FORM OF SECRETARY'S CERTIFICATE OF RUBY TUESDAY, INC.
Reference is made to the Revolving Credit Agreement dated as of October
__, 2000 (the "Credit Agreement"), among RUBY TUESDAY, INC. (the "Borrower"),
the lenders named therein, and SunTrust Bank, as Administrative Agent, Issuing
Bank, and Swingline Lender. Terms defined in the Credit Agreement are used
herein with the same meanings. This certificate is being delivered pursuant to
Section 3.1 of the Credit Agreement.
I, [ ], Secretary of the Borrower, DO HEREBY CERTIFY that:
(a) there have been no amendments or supplements to, or restatements
of, the articles of incorporation of the Borrower delivered pursuant to Section
3.1 of the Credit Agreement;
(b) no proceedings have been instituted or are pending or contemplated
with respect to the dissolution, liquidation or sale of all or substantially all
the assets of the Borrower or threatening its existence or the forfeiture or any
of its corporate rights;
(c) annexed hereto as Exhibit A is a true and correct copy of the
Bylaws of the Borrower as in effect on [month day], 2000 and at all times
thereafter through the date hereof;
(d) annexed hereto as Exhibit B is a true and correct copy of certain
resolutions duly adopted by the Board of Directors of the Borrower at a meeting
of said Board of Directors duly called and held on [month day], 2000, which
resolutions are the only resolutions adopted by the Board of Directors of the
Borrower or any committee thereof relating to the Credit Agreement and the other
Loan Documents to which the Borrower is a party and the transactions
contemplated therein and have not been revoked, amended, supplemented or
modified and are in full force and effect on the date hereof; and
(e) each of the persons named below is and has been at all times since
[month day], 2000 a duly elected and qualified officer of the Borrower holding
the respective office set forth opposite his or her name and the signature set
forth opposite of each such person is his or her genuine signature:
Name Title Specimen Signature
----------------------- ------------------ ------------------
----------------------- ------------------ ------------------
----------------------- ------------------ ------------------
<PAGE>
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of October,
2000.
Secretary I, [ ], [ ] of the Borrower, do hereby certify that ----- [_______ ]
has been duly elected, is duly qualified and is the [Assistant] Secretary of the
Borrower, that - the signature set forth above is [his/her] genuine signature
and that [he/she] has held such office at all times since [month day], [year].
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of [month],
[year].
<PAGE>
EXHIBIT 2.7
FORM OF CONTINUATION/CONVERSION
[date]
SunTrust Bank,
as Administrative Agent
for the Lenders referred to below
303 Peachtree Street, N.E.
Atlanta, GA 30308
Attention:
Dear Sirs:
Reference is made to the Revolving Credit Agreement dated as of October
__, 2000 (as amended, restated or modified from time to time, the "Credit
Agreement"), among the undersigned, as Borrower, the Lenders named therein, and
SunTrust Bank, as Administrative Agent, Issuing Bank, and Swingline Lender.
Terms defined in the Credit Agreement are used herein with the same meanings.
This notice constitutes a Notice of Continuation/Conversion and the Borrower
hereby requests the conversion or continuation of a Revolving Borrowing under
the Credit Agreement, and in that connection the Borrower specifies the
following information with respect to the Revolving Borrowing to be converted or
continued as requested hereby:
(A) Revolving Borrowing to which this request applies:
(B) Principal amount of Revolving Borrowing to be
converted/continued :
(C) Effective date of election (which is a Business Day):
(D) Interest rate basis:
(E) Interest Period:
Very truly yours,
RUBY TUESDAY, INC.
By:
Name:
Title:
<PAGE>
EXHIBIT 3.1(b)(vii)
FORM OF OFFICER'S CERTIFICATE
Reference is made to the Revolving Credit Agreement dated as of October
__, 2000 (as amended, restated, supplemented or modified from time to time, the
"Credit Agreement"), among RUBY TUESDAY, INC. (the "Borrower"), the Lenders from
time to time party thereto, and SunTrust Bank, as Administrative Agent, Issuing
Bank, and Swingline Lender. Terms defined in the Credit Agreement are used
herein with the same meanings. This certificate is being delivered pursuant to
Section 3.1(b)(vii) of the Credit Agreement.
I, [ ], [ ] of the Borrower, DO HEREBY CERTIFY ---------------------------
------------------------- that:
(a) at the time of and immediately after giving effect to such
Borrowing or the issuance, amendment, renewal or extension of a Letter of
Credit, as applicable, no Default or Event of Default shall exist or would
result; and
(b) all representations and warranties of each Loan Party set forth in
the Loan Documents shall be true and correct in all material respects on and as
of the date of such Borrowing or the date of issuance, amendment, extension or
renewal of a Letter of Credit, in each case before and after giving effect
thereto; and
(c) since the date of the most recent financial statements of the
Borrower described in Section 4.4 of the Credit Agreement or delivered pursuant
to Section 5.1(a) of the Credit Agreement, there shall have been no change which
has had or could reasonably be expected to have a Material Adverse Effect.
IN WITNESS WHEREOF, I have hereunto signed my name this ___ day of
October, 2000
Name:
Title:
