UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[ X ] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the quarterly period ended March 29, 1998
-----------------------------------------
OR
[ ] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES
EXCHANGE ACT OF 1934
For the transition period from to
---------------------- ----------------------
Commission File Number: 000-17962
Applebee's International, Inc.
--------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 43-1461763
------------------------------- ------------------------------------
(State or other jurisdiction (I.R.S. Employer Identification No.)
of incorporation or
organization)
4551 W. 107th Street, Suite 100, Overland Park, Kansas 66207
------------------------------------------------------------------------------
(Address of principal executive offices and zip code)
(913) 967-4000
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(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 months (or for such shorter period that the registrant was
required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
The number of shares of the registrant's common stock outstanding as of April
23, 1998 was 30,309,317.
1
<PAGE>
APPLEBEE'S INTERNATIONAL, INC.
FORM 10-Q
FISCAL QUARTER ENDED MARCH 29, 1998
INDEX
<TABLE>
<CAPTION>
Page
PART I FINANCIAL INFORMATION
<S> <C> <C>
Item 1. Consolidated Financial Statements:
Consolidated Balance Sheets as of March 29, 1998
and December 28, 1997................................................................ 3
Consolidated Statements of Earnings for the 13 Weeks
Ended March 29, 1998 and March 30, 1997.............................................. 4
Consolidated Statement of Stockholders' Equity for the
13 Weeks Ended March 29, 1998........................................................ 5
Consolidated Statements of Cash Flows for the 13 Weeks
Ended March 29, 1998 and March 30, 1997.............................................. 6
Notes to Consolidated Financial Statements.............................................. 8
Item 2. Management's Discussion and Analysis of
Financial Condition and Results of Operations........................................ 12
PART II OTHER INFORMATION
Item 1. Legal Proceedings....................................................................... 21
Item 6. Exhibits and Reports on Form 8-K........................................................ 21
Signatures ................................................................................................. 22
Exhibit Index............................................................................................... 23
</TABLE>
2
<PAGE>
APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED BALANCE SHEETS
(Unaudited)
(dollars in thousands, except per share amounts)
<TABLE>
<CAPTION>
March 29, December 28,
1998 1997
------------- --------------
ASSETS
<S> <C> <C>
Current assets:
Cash and cash equivalents.................................................... $ 14,818 $ 8,908
Short-term investments, at market value (amortized cost of $6,246 in 1998
and $10,754 in 1997)...................................................... 6,421 10,906
Receivables (less allowance for bad debts of $1,098 in 1998 and $837 in 1997) 17,264 16,390
Inventories.................................................................. 4,513 4,788
Prepaid and other current assets............................................. 1,949 2,962
------------- --------------
Total current assets...................................................... 44,965 43,954
Property and equipment, net....................................................... 278,791 276,082
Goodwill, net..................................................................... 47,356 48,065
Franchise interest and rights, net................................................ 4,366 4,667
Other assets...................................................................... 5,134 4,706
------------- --------------
$ 380,612 $ 377,474
============= ==============
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt............................................ $ 22,159 $ 6,306
Current portion of obligations under noncompetition and consulting agreement. -- 220
Accounts payable............................................................. 16,163 19,731
Accrued expenses and other current liabilities............................... 32,071 28,547
Accrued dividends............................................................ -- 2,518
Accrued income taxes......................................................... 7,937 5,166
------------- --------------
Total current liabilities................................................. 78,330 62,488
------------- --------------
Non-current liabilities:
Long-term debt - less current portion........................................ 22,206 22,579
Franchise deposits........................................................... 1,576 1,532
Deferred income taxes........................................................ 380 432
------------- --------------
Total non-current liabilities............................................. 24,162 24,543
------------- --------------
Total liabilities......................................................... 102,492 87,031
------------- --------------
Commitments and contingencies (Note 3)
Stockholders' equity:
Preferred stock - par value $0.01 per share: authorized - 1,000,000 shares;
no shares issued.......................................................... -- --
Common stock - par value $0.01 per share: authorized - 125,000,000 shares;
issued - 31,775,804 shares in 1998 and 31,744,009 shares in 1997.......... 318 317
Additional paid-in capital................................................... 156,808 156,165
Retained earnings............................................................ 146,624 134,654
Unrealized gain on short-term investments, net of income taxes............... 109 95
------------- --------------
303,859 291,231
Treasury stock - 1,518,793 shares in 1998 and 261,629 shares in 1997, at cost (25,739) (788)
------------- --------------
Total stockholders' equity............................................... 278,120 290,443
------------- --------------
$ 380,612 $ 377,474
============= ==============
</TABLE>
See notes to consolidated financial statements.
3
<PAGE>
APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF EARNINGS
(Unaudited)
(in thousands, except per share amounts)
<TABLE>
<CAPTION>
13 Weeks Ended
--------------------------------
March 29, March 30,
1998 1997
------------- -------------
<S> <C> <C>
Revenues:
Company restaurant sales................................ $ 129,758 $ 100,843
Franchise income........................................ 16,845 15,409
------------- -------------
Total operating revenues............................. 146,603 116,252
------------- -------------
Cost of Company restaurant sales:
Food and beverage....................................... 35,368 27,721
Labor................................................... 42,323 32,101
Direct and occupancy.................................... 33,219 26,022
Pre-opening expense..................................... 481 510
------------- -------------
Total cost of Company restaurant sales............... 111,391 86,354
------------- -------------
General and administrative expenses.......................... 14,454 12,446
Amortization of intangible assets............................ 875 568
Loss on disposition of restaurants and equipment............. 458 233
------------- -------------
Operating earnings........................................... 19,425 16,651
------------- -------------
Other income (expense):
Investment income....................................... 220 933
Interest expense........................................ (751) (359)
Other income............................................ 167 148
------------- -------------
Total other income (expense)......................... (364) 722
------------- -------------
Earnings before income taxes................................. 19,061 17,373
Income taxes................................................. 7,091 6,497
------------- -------------
Net earnings................................................. $ 11,970 $ 10,876
============= =============
Basic net earnings per common share.......................... $ 0.39 $ 0.35
============= =============
Diluted net earnings per common share........................ $ 0.39 $ 0.34
============= =============
Basic weighted average shares outstanding.................... 30,611 31,310
============= =============
Diluted weighted average shares outstanding.................. 30,734 31,606
============= =============
</TABLE>
See notes to consolidated financial statements.
4
<PAGE>
APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENT OF STOCKHOLDERS' EQUITY
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
Unrealized
Common Stock Additional Gain on Total
------------------------- Paid-In Retained Short-Term Treasury Stockholders'
Shares Amount Capital Earnings Investments Stock Equity
-------------- ---------- ------------ ------------ ------------ ----------- -------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 28, 1997......... 31,744,009 $ 317 $ 156,165 $ 134,654 $ 95 $ (788) $ 290,443
Purchases of treasury stock..... -- -- -- -- -- (24,990) (24,990)
Stock options exercised......... 31,795 1 420 -- -- -- 421
Shares sold under employee stock
purchase plan................. -- -- 170 -- -- 39 209
Income tax benefit upon exercise
of stock options.............. -- -- 53 -- -- -- 53
Change in unrealized gain on
short-term investments,
net of income taxes........... -- -- -- -- 14 -- 14
Net earnings.................... -- -- -- 11,970 -- -- 11,970
-------------- ---------- ------------ ------------- ----------- ----------- -------------
Balance, March 29, 1998............ 31,775,804 $ 318 $ 156,808 $ 146,624 $ 109 $ (25,739) $ 278,120
============== ========== ============ ============= =========== =========== =============
</TABLE>
See notes to consolidated financial statements.
5
<PAGE>
APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
13 Weeks Ended
--------------------------------
March 29, March 30,
1998 1997
------------- --------------
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings............................................. $ 11,970 $ 10,876
Adjustments to reconcile net earnings to net
cash provided by operating activities:
Depreciation and amortization......................... 6,466 4,748
Amortization of intangible assets..................... 875 568
Gain on sale of investments........................... (25) --
Deferred income tax provision (benefit)............... (528) 477
Loss on disposition of restaurants and equipment...... 458 233
Changes in assets and liabilities:
Receivables........................................... (874) 4,071
Inventories........................................... 275 (804)
Prepaid and other current assets...................... 1,481 1,105
Accounts payable...................................... (3,568) 2,504
Accrued expenses and other current liabilities........ 3,481 (2,926)
Accrued income taxes.................................. 2,771 4,874
Franchise deposits.................................... 44 (129)
Other................................................. (411) (249)
------------- --------------
NET CASH PROVIDED BY
OPERATING ACTIVITIES............................... 22,415 25,348
------------- --------------
CASH FLOWS FROM INVESTING ACTIVITIES:
Purchases of short-term investments...................... (2,000) (6,401)
Maturities and sales of short-term investments........... 6,512 504
Purchases of property and equipment...................... (9,790) (15,195)
Acquisition of minority interest in joint venture........ -- (1,275)
Proceeds from sale of restaurants and equipment.......... 359 891
------------- --------------
NET CASH USED BY INVESTING ACTIVITIES................. (4,919) (21,476)
------------- --------------
CASH FLOWS FROM FINANCING ACTIVITIES:
Purchases of treasury stock.............................. (24,990) --
Dividends paid........................................... (2,518) (2,191)
Issuance of common stock upon exercise of stock options.. 421 323
Income tax benefit upon exercise of stock options........ 53 42
Shares sold under employee stock purchase plan........... 209 --
Proceeds from issuance of long-term debt................. 17,500 --
Payments on long-term debt............................... (2,041) (506)
Payments under noncompetition and consulting agreement... (220) (220)
Minority interest in net earnings of joint venture....... -- 69
------------- --------------
NET CASH USED BY FINANCING ACTIVITIES................. (11,586) (2,483)
------------- --------------
NET INCREASE IN CASH AND CASH EQUIVALENTS..................... 5,910 1,389
CASH AND CASH EQUIVALENTS, beginning of period................ 8,908 17,346
------------- --------------
CASH AND CASH EQUIVALENTS, end of period...................... $ 14,818 $ 18,735
============= ==============
</TABLE>
See notes to consolidated financial statements.
6
<PAGE>
APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
CONSOLIDATED STATEMENTS OF CASH FLOWS - (Continued)
(Unaudited)
(dollars in thousands)
<TABLE>
<CAPTION>
13 Weeks Ended
-----------------------------------
March 29, March 30,
1998 1997
--------------- ----------------
<S> <C> <C>
SUPPLEMENTAL DISCLOSURES OF CASH
FLOW INFORMATION:
Cash paid during the 13 week period for:
Income taxes........................................................ $ 5,239 $ 1,085
=============== ================
Interest............................................................ $ 358 $ 976
=============== ================
</TABLE>
DISCLOSURE OF ACCOUNTING POLICY:
For purposes of the consolidated statements of cash flows, the Company considers
all highly liquid investments purchased with a maturity of three months or less
to be cash equivalents.
See notes to consolidated financial statements.
7
<PAGE>
APPLEBEE'S INTERNATIONAL, INC. AND SUBSIDIARIES
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
(Unaudited)
1. Basis of Presentation
The consolidated financial statements of Applebee's International, Inc. and
subsidiaries (the "Company") included in this Form 10-Q have been prepared
without audit (except that the balance sheet information as of December 28, 1997
has been derived from consolidated financial statements which were audited) in
accordance with the rules and regulations of the Securities and Exchange
Commission. Although certain information and footnote disclosures normally
included in financial statements prepared in accordance with generally accepted
accounting principles have been condensed or omitted, the Company believes that
the disclosures are adequate to make the information presented not misleading.
The accompanying consolidated financial statements should be read in conjunction
with the audited financial statements and notes thereto included in the
Company's Annual Report on Form 10-K for the fiscal year ended December 28,
1997.
The Company believes that all adjustments, consisting only of normal recurring
adjustments, necessary for a fair presentation of the results of the interim
periods presented have been made. The results of operations for the interim
periods presented are not necessarily indicative of the results to be expected
for the full year.
2. Acquisitions
On April 14, 1997, the Company acquired the operations of 11 franchise
Applebee's restaurants located in the St. Louis metropolitan area and the
related furniture and fixtures, certain land and leasehold improvements, and
rights to future development of restaurants for a total purchase price of
$36,150,000. The purchase price was paid in a combination of $33,650,000 in cash
and $2,500,000 of promissory notes, of which $1,500,000 was paid in January 1998
and $1,000,000 is payable in December 1998. One of the principals of the
franchisee was related to a person who was a director of the Company until May
1997. The acquisition was accounted for as a purchase, and accordingly, the
purchase price has been allocated to the fair value of net assets acquired and
resulted in an allocation to goodwill of approximately $27,000,000 which is
being amortized on a straight-line basis over 20 years. In connection with this
acquisition, the Company also recorded capitalized leases of $4,055,000. The
results of operations of such restaurants have been reflected in the
consolidated financial statements subsequent to the date of acquisition. Results
of operations of such restaurants prior to acquisition were not material in
relation to the Company's operating results for the periods shown.
On December 23, 1997, the Company entered into an agreement with Apple South,
Inc. ("Apple South"), its largest franchisee, to acquire 31 Applebee's
restaurants plus one restaurant under construction in the Virginia markets of
Norfolk, Richmond, Roanoke and Charlottesville, referred to herein as the
"Virginia Acquisition." The Virginia Acquisition was completed on March 30,
1998, and was effective immediately after the close of business on March 29,
1998. The total purchase price was $94,749,000 and was paid in cash on March 30,
1998. The purchase price reflects $93,400,000 for the 32 restaurants referred to
above plus $1,349,000 for one additional restaurant that was opened by Apple
South prior to closing, as well as normal closing adjustments. See Note 3 for
additional commitments and contingencies relating to the agreement with Apple
South. The acquisition will be accounted for as a purchase in the second quarter
of 1998 and, accordingly, the purchase price will be allocated to the fair value
of net assets acquired and the results of operations of such restaurants will be
reflected in the 1998 financial statements subsequent to the date of
acquisition.
8
<PAGE>
3. Commitments and Contingencies
Litigation, claims and disputes: As of March 29, 1998, the Company was using
assets owned by a former franchisee in the operation of one restaurant under a
purchase rights agreement which required the Company to make certain payments to
the franchisee's lender. In 1991, a dispute arose between the lender and the
Company over the amount of the payments due the lender. Based upon a then
current independent appraisal, the Company offered to settle the dispute and
purchase the assets for $1,000,000 in 1991. In November 1992, the lender was
declared insolvent by the FDIC and has since been liquidated. The Company closed
one of the three restaurants in 1994 and one of the two remaining restaurants in
February 1996. In the fourth quarter of 1996, the Company received information
indicating that the franchisee's indebtedness to the FDIC had been acquired by a
third party. In June 1997, the third party filed a lawsuit against the Company
seeking approximately $3,800,000. The lawsuit remains in the discovery phase.
The Company believes it has meritorious defenses and will vigorously defend this
lawsuit. In the event that the Company were to pay an amount determined to be in
excess of the fair market value of the assets, the Company will recognize a loss
at the time of such payment.
In addition, the Company is involved in various legal actions arising in the
normal course of business. While the resolution of any of such actions or the
matter described above may have an impact on the financial results for the
period in which it is resolved, the Company believes that the ultimate
disposition of these matters will not, in the aggregate, have a material adverse
effect upon its business or consolidated financial position.
Franchise financing: The Company entered into an agreement in 1992 with a
financing source to provide up to $75,000,000 of financing to Company
franchisees to fund development of new franchise restaurants. The Company
provided a limited guaranty of loans made under the agreement. The Company's
maximum recourse obligation of 10% of the amount funded is reduced beginning in
the second year of each long-term loan and thereafter decreases ratably to zero
after the seventh year of each loan. At March 29, 1998, approximately
$48,000,000 had been funded through this financing source, of which $14,500,000
was outstanding. This agreement expired on December 31, 1994 and was not
renewed, although some loan commitments as of the termination date were
thereafter funded through December 31, 1995.
Severance agreements: The Company has severance and employment agreements with
certain officers providing for severance payments to be made in the event the
employee resigns or is terminated related to a change in control (as defined in
the agreements). If the severance payments had been due as of March 29, 1998,
the Company would have been required to make payments aggregating approximately
$5,600,000. In addition, the Company has severance and employment agreements
with certain officers which contain severance provisions not related to a change
in control, and such provisions would have required aggregate payments of
approximately $3,900,000 if such officers had been terminated as of March 29,
1998.
9
<PAGE>
Apple South divestiture plan: As part of the agreement with Apple South relating
to the Virginia Acquisition (see Note 2), Apple South has also agreed to use its
best efforts to sell its other Applebee's restaurants as soon as practical,
resulting in its exit as an Applebee's franchisee. To the extent any restaurants
are not divested by Apple South by December 31, 1999, the Company has an option
to purchase the remaining restaurants at a predetermined formula. The Company
and Apple South have committed to work together to identify and approve
qualified franchise groups to acquire the remaining Apple South restaurants and
to effect an efficient transition of ownership. To assist in this transition,
the Company has agreed to provide the availability of guarantees up to 10% of
the borrowings of qualified franchise groups, up to a maximum of $10,000,000 in
the aggregate.
4. Financing
On March 30, 1998, the Company entered into a bank credit agreement that
provides for $225,000,000 in senior secured credit facilities, consisting of an
eight-year senior secured term loan of $125,000,000 and a five-year secured
working capital facility of $100,000,000. The Company also entered into a
five-year $5,000,000 letter of credit facility with another bank. On March 30,
1998, $125,000,000 was borrowed under the term loan facility and $15,000,000 was
borrowed under the working capital facility. The total proceeds were utilized as
follows:
(i) to fund the Virginia Acquisition (see Note 2) including
related transaction fees and expenses;
(ii) to repay certain existing indebtedness totaling $37,500,000
and to pay a prepayment penalty of $930,000 on a portion of
the repaid debt (which will be reflected as an expense in the
second quarter of 1998); and
(iii) for working capital needs and general corporate purposes.
Up to $50,000,000 of the facilities are available to fund repurchases of the
Company's common stock. Through March 29, 1998, the Company has repurchased
1,270,000 shares of its common stock at an aggregate value of $24,990,000,
pursuant to plans approved by the Company's Board of Directors. The Company
contemplates additional purchases of up to $25,000,000 subject to market
conditions.
The senior term loan bears interest at either the bank's prime rate plus 1.25%
or LIBOR plus 2.25%, at the Company's option, and requires semi-annual principal
payments aggregating $1,250,000 per year for each of the first seven years, with
the remaining $116,250,000 due during the eighth year. The working capital
facility bears interest at either the bank's prime rate plus 0.375% or LIBOR
plus 1.375%, at the Company's option. A commitment fee of 0.30% is payable on
any unused portion of the working capital facility.
In connection with the senior term loan, the Company has entered into interest
rate swap agreements to manage its exposure to interest rate fluctuations. The
agreements are effective beginning May 1, 1998, and have maturity dates ranging
from four to seven years for an aggregate notional amount of $100,000,000 for
three-month LIBOR rates ranging from 5.91% to 6.05%.
Both the senior term loan and the working capital facility are subject to
standard other terms, conditions, covenants, and fees and are secured by the
common stock of each of the Company's present and future subsidiaries and all
intercompany debt of the Company and such subsidiaries.
10
<PAGE>
5. Earnings Per Share
The Company adopted SFAS No. 128, "Earnings Per Share," during 1997. SFAS No.
128 requires presentation of basic and diluted earnings per share. Basic
earnings per share is computed by dividing income available to common
shareholders by the weighted average number of common shares outstanding for the
reporting period. Diluted earnings per share reflects the potential dilution
that could occur if securities or other contracts to issue common stock were
exercised or converted into common stock. All prior period weighted average and
per share information has been restated in accordance with SFAS No. 128.
Outstanding stock options issued by the Company represent the only dilutive
effect on weighted average shares. A reconciliation between basic and diluted
weighted average shares outstanding and the related earnings per share
calculation is presented below (in thousands, except per share amounts):
<TABLE>
<CAPTION>
13 Weeks Ended
----------------------------------------------
March 29, March 30,
1998 1997
---------------------- ----------------------
<S> <C> <C>
Net earnings............................................ $ 11,970 $ 10,876
====================== ======================
Basic weighted average shares outstanding............... 30,611 31,310
Dilutive effect of stock options........................ 123 296
---------------------- ----------------------
Diluted weighted average shares outstanding............. 30,734 31,606
====================== ======================
Basic net earnings per common share..................... $ 0.39 $ 0.35
====================== ======================
Diluted net earnings per common share................... $ 0.39 $ 0.34
====================== ======================
</TABLE>
6. New Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 131, "Disclosures about Segments of
an Enterprise and Related Information." SFAS No. 131 establishes standards for
the way public business enterprises report information about operating segments
in annual financial statements and requires that those enterprises report
selected information about operating segments in interim financial reports
issued to shareholders. It also establishes standards for related disclosures
about products and services, geographic areas, and major customers. This
statement is effective for financial statements for periods beginning after
December 15, 1997. In the initial year of application, comparative information
for earlier years is to be presented. This statement need not be applied to
interim financial statements in the initial year of its application, but
comparative information for interim periods in the initial year of application
is to be reported in financial statements for interim periods in the second year
of application.
11
<PAGE>
Item 2. Management's Discussion and Analysis of Financial Condition and Results
of Operations
General
The Company's revenues are generated from two primary sources: Company
restaurant sales (food and beverage sales) and franchise income consisting of
franchise restaurant royalties (generally 4% of each franchise restaurant's
monthly gross sales) and franchise fees (which typically range from $30,000 to
$35,000 for each Applebee's restaurant opened and $40,000 for each Rio Bravo
Cantina restaurant opened). Beverage sales include sales of alcoholic beverages,
while non-alcoholic beverages are included in food sales. Certain expenses (food
and beverage, labor, direct and occupancy costs, and pre-opening expenses)
relate directly to Company restaurants, and other expenses (general and
administrative and amortization expenses) relate to both Company restaurants and
franchise operations.
The Company operates on a 52 or 53 week fiscal year ending on the last Sunday in
December. The Company's fiscal quarters ended March 29, 1998 and March 30, 1997
each contained 13 weeks, and are referred to hereafter as the "1998 quarter" and
the "1997 quarter," respectively.
On April 14, 1997, the Company acquired the operations and assets of 11
franchise restaurants in the St. Louis metropolitan area, referred to herein as
the "St. Louis Acquisition." The St. Louis Acquisition was accounted for as a
purchase and, accordingly, the results of operations of such restaurants have
been reflected in the consolidated financial statements subsequent to the date
of acquisition.
On December 23, 1997, the Company entered into an agreement with Apple South,
Inc. ("Apple South"), its largest franchisee, to acquire 31 Applebee's
restaurants plus one restaurant under construction in the Virginia markets of
Norfolk, Richmond, Roanoke and Charlottesville, referred to herein as the
"Virginia Acquisition." The Virginia Acquisition was completed on March 30,
1998, and was effective immediately after the close of business on March 29,
1998. The total purchase price was $94,749,000 and was paid in cash on March 30,
1998. The acquisition will be accounted for as a purchase in the second quarter
of 1998 and, accordingly, the purchase price will be allocated to the fair value
of net assets acquired and the results of operations of such restaurants will be
reflected in the 1998 financial statements subsequent to the date of
acquisition.
12
<PAGE>
Results of Operations
The following table sets forth, for the periods indicated, information derived
from the Company's consolidated statements of earnings expressed as a percentage
of total operating revenues, except where otherwise noted. Percentages may not
add due to rounding.
<TABLE>
<CAPTION>
13 Weeks Ended
---------------------------------
March 29, March 30,
1998 1997
--------------- ---------------
<S> <C> <C>
Revenues:
Company restaurant sales.................................... 88.5% 86.7%
Franchise income............................................ 11.5 13.3
--------------- ---------------
Total operating revenues................................. 100.0% 100.0%
=============== ===============
Cost of sales (as a percentage of Company restaurant sales):
Food and beverage........................................... 27.3% 27.5%
Labor....................................................... 32.6 31.8
Direct and occupancy........................................ 25.6 25.8
Pre-opening expense......................................... 0.4 0.5
--------------- ---------------
Total cost of sales...................................... 85.8% 85.6%
=============== ===============
General and administrative expenses.............................. 9.9% 10.7%
Amortization of intangible assets................................ 0.6 0.5
Loss on disposition of restaurants and equipment................. 0.3 0.2
--------------- ---------------
Operating earnings............................................... 13.3 14.3
--------------- ---------------
Other income (expense):
Investment income........................................... 0.2 0.8
Interest expense............................................ (0.5) (0.3)
Other income................................................ 0.1 0.1
--------------- ---------------
Total other income (expense)............................. (0.2) 0.6
--------------- ---------------
Earnings before income taxes..................................... 13.0 14.9
Income taxes..................................................... 4.8 5.6
--------------- ---------------
Net earnings..................................................... 8.2% 9.4%
=============== ===============
</TABLE>
13
<PAGE>
The following table sets forth certain unaudited financial information and other
restaurant data relating to Company and franchise restaurants, as reported to
the Company by franchisees.
<TABLE>
<CAPTION>
13 Weeks Ended
-----------------------------------------
March 29, March 30,
1998 1997
------------------- -------------------
<S> <C> <C>
Number of restaurants:
Applebee's:
Company(1):
Beginning of period........................................ 190 148
Restaurant openings........................................ 5 2
Restaurant closings........................................ -- (1)
------------------- -------------------
End of period.............................................. 195 149
------------------- -------------------
Franchise:
Beginning of period........................................ 770 671
Restaurant openings........................................ 15 24
Restaurant closings........................................ (1) --
------------------- -------------------
End of period.............................................. 784 695
------------------- -------------------
Total Applebee's:
Beginning of period........................................ 960 819
Restaurant openings........................................ 20 26
Restaurant closings........................................ (1) (1)
------------------- -------------------
End of period.............................................. 979 844
=================== ===================
Rio Bravo Cantinas:
Company:
Beginning of period........................................ 31 21
Restaurant openings........................................ 1 3
------------------- -------------------
End of period.............................................. 32 24
------------------- -------------------
Franchise:
Beginning of period........................................ 24 9
Restaurant openings........................................ 2 5
------------------- -------------------
End of period.............................................. 26 14
------------------- -------------------
Total Rio Bravo Cantinas:
Beginning of period........................................ 55 30
Restaurant openings........................................ 3 8
------------------- -------------------
End of period.............................................. 58 38
=================== ===================
Specialty Restaurants............................................... 4 4
=================== ===================
Total number of restaurants:
Beginning of period........................................ 1,019 853
Restaurant openings........................................ 23 34
Restaurant closings........................................ (1) (1)
------------------- -------------------
End of period.............................................. 1,041 886
=================== ===================
14
<PAGE>
13 Weeks Ended
-----------------------------------------
March 29, March 30,
1998 1997
------------------- -------------------
Weighted average weekly sales per restaurant:
Applebee's:
Company(1)................................................. $ 41,318 $ 40,888
Franchise.................................................. $ 39,815 $ 40,506
Total Applebee's........................................... $ 40,115 $ 40,574
Rio Bravo Cantinas:
Company(2)................................................. $ 55,717 $ 62,912
Franchise.................................................. $ 42,606 $ 53,008
Total Rio Bravo Cantinas................................... $ 49,759 $ 59,595
Change in comparable restaurant sales:(3) Applebee's:
Company(1)................................................. (0.7)% 2.1%
Franchise.................................................. (0.2)% 2.7%
Total Applebee's........................................... (0.3)% 2.6%
Rio Bravo Cantinas (Company)................................... (3.4)% 2.2%
Total system sales (in thousands):
Applebee's..................................................... $ 504,681 $ 439,095
Rio Bravo Cantinas............................................. 36,638 25,506
Specialty restaurants.......................................... 3,637 3,560
------------------- -------------------
Total system sales......................................... $ 544,956 $ 468,161
=================== ===================
</TABLE>
- --------
(1) Includes one Texas restaurant operated by the Company under a management
agreement since July 1990.
(2) Excludes one restaurant which is open for dinner only.
(3) When computing comparable restaurant sales, restaurants open for at
least 18 months are compared from period to period.
15
<PAGE>
Company Restaurant Sales. Company restaurant sales for the 1998 and 1997
quarters were as follows (in thousands):
<TABLE>
<CAPTION>
13 Weeks Ended
-------------------------------------------------
March 29, March 30,
1998 1997 Increase
--------------- --------------- --------------
<S> <C> <C> <C>
Applebee's........................ $ 103,501 $ 79,200 $ 24,301
Rio Bravo Cantinas................ 22,620 18,083 4,537
Specialty restaurants............. 3,637 3,560 77
--------------- --------------- --------------
Total........................ $ 129,758 $ 100,843 $ 28,915
=============== =============== ==============
</TABLE>
Total Company restaurant sales increased 29% in the 1998 quarter. Sales in the
1998 quarter increased 31% for Applebee's restaurants and 25% for Rio Bravo
Cantina restaurants due primarily to Company restaurant openings and sales from
the 11 St. Louis restaurants acquired in April 1997.
Comparable restaurant sales at Company Applebee's restaurants decreased by 0.7%
in the 1998 quarter. Weighted average weekly sales at Company Applebee's
restaurants increased 1.1% from $40,888 in the 1997 quarter to $41,318 in the
1998 quarter. Weighted average weekly sales in the 1998 quarter increased as a
result of the purchase of 11 higher than average volume restaurants in St. Louis
in April 1997. Excluding these restaurants, weighted average weekly sales
decreased 0.5% in the 1998 quarter.
Price increases were implemented during the fourth quarter of 1997 for certain
menu items. The Company does not expect significant comparable restaurant sales
increases and may experience comparable restaurant sales decreases for the
remainder of the 1998 fiscal year for Company Applebee's restaurants, as many of
its restaurants operate near sales capacity and various markets continue to
experience competitive pressures. Although the Company's experience in
developing markets indicates that the opening of multiple restaurants within a
particular market results in increased market share, decreases in comparable
restaurant sales may result.
Comparable restaurant sales for Company Rio Bravo Cantina restaurants decreased
by 3.4% in the 1998 quarter due primarily to increased competition and inclement
weather in the Atlanta market. Weighted average weekly sales (excluding one
restaurant that is open for dinner only) decreased from $62,912 in the 1997
quarter to $55,717 in the 1998 quarter. Weighted average weekly sales in the
1998 quarter continue to be impacted by new restaurant openings in new markets,
as well as the addition of a new smaller prototype restaurant during 1997. When
entering new markets where the Company has not yet established a market
presence, sales levels are expected to be lower than in the Georgia and Florida
markets where the Company has a concentration of restaurants and high customer
awareness.
Franchise Income. Overall franchise income increased $1,436,000 (9.3%) from
$15,409,000 in the 1997 quarter to $16,845,000 in the 1998 quarter. This
increase was due primarily to the increased number of franchise Applebee's and
Rio Bravo Cantina restaurants operating during the 1998 quarter as compared to
the 1997 quarter.
Cost of Company Restaurant Sales. Food and beverage costs decreased from 27.5%
in the 1997 quarter to 27.3% in the 1998 quarter, due primarily to operational
improvements, purchasing efficiencies resulting from the Company's rapid growth,
16
<PAGE>
and the menu price increase implemented in the fourth quarter of 1997. Beverage
sales, as a percentage of Company restaurant sales, declined from 18.1% in the
1997 quarter to 17.2% in the 1998 quarter, which had a negative impact on
overall food and beverage costs, as a percentage of Company restaurant sales.
Management believes that the reduction in beverage sales is due in part to the
continuation of the overall trend toward increased awareness of responsible
alcohol consumption.
Labor costs increased from 31.8% in the 1997 quarter to 32.6% in the 1998
quarter. This increase was due primarily to the adverse impact on restaurant
labor costs during, and for a number of months following, the implementation of
the Company's food and menu enhancement initiative in its Applebee's restaurants
during the latter half of 1997. The Company expects labor costs, as a percentage
of sales, to continue to be impacted during the second quarter of 1998 as a
result of this implementation. In addition, increases in the minimum wage as
well as the highly competitive nature of the restaurant industry continue to
exert pressure on both hourly labor and management costs.
Direct and occupancy costs decreased from 25.8% in the 1997 quarter to 25.6% in
the 1998 quarter due primarily to slightly lower levels of planned advertising
expenditures and decreases in utility costs and supplies, which were partially
offset by higher depreciation expense associated with new restaurants.
General and Administrative Expenses. General and administrative expenses
decreased in the 1998 quarter to 9.9% from 10.7% in the 1997 quarter, due
primarily to the absorption of general and administrative expenses over a larger
revenue base, as well as the additional leverage resulting from the St. Louis
Acquisition. General and administrative expenses increased by $2,008,000 (16%)
during the 1998 quarter compared to the 1997 quarter due primarily to the costs
of additional personnel associated with the Company's development efforts and
system-wide expansion, including costs related to the franchising and expansion
of the Rio Bravo Cantina concept.
Investment Income. Investment income decreased in the 1998 quarter primarily as
a result of decreases in cash and cash equivalents and short-term investments
due to capital expenditures and acquisitions.
Interest Expense. Interest expense increased in the 1998 quarter as a result of
interest on capitalized leases associated with the St. Louis Acquisition,
commitment fees on the Company's $225,000,000 credit facilities, and borrowings
under the revolving credit facility which were utilized primarily for
repurchases of the Company's stock during the 1998 quarter.
Income Taxes. The effective income tax rate, as a percentage of earnings before
income taxes, was 37.2% in the 1998 quarter compared to 37.4% in the 1997
quarter. The decrease in the Company's effective tax rate in the 1998 quarter
was due primarily to a reduction in state income taxes and an increase in
credits resulting from FICA taxes on tips.
Liquidity and Capital Resources
The Company's need for capital resources historically has resulted from, and for
the foreseeable future is expected to relate primarily to, the construction and
acquisition of restaurants. Such capital has been provided by public stock
offerings, debt financing, and ongoing Company operations, including cash
generated from Company and franchise operations, credit from trade suppliers,
17
<PAGE>
real estate lease financing, and landlord contributions to leasehold
improvements. The Company has also used its common stock as consideration in the
acquisition of restaurants. In addition, the Company assumed debt or issued new
debt in connection with certain mergers and acquisitions.
Capital expenditures were $128,155,000 in 1997 (which includes $36,150,000
related to the St. Louis Acquisition and $1,525,000 related to the purchase of
the remaining 50% interest in a joint venture arrangement with the Company's
franchisee in Nevada) and $9,790,000 in the 1998 quarter. The Company currently
expects to open 32 Applebee's restaurants and 11 Rio Bravo Cantina restaurants
in 1998, and acquired 33 Applebee's restaurants as part of the Virginia
Acquisition on March 30, 1998. In addition to the $94,749,000 relating to the
Virginia Acquisition, capital expenditures in fiscal 1998 are expected to be
between $85,000,000 and $90,000,000 primarily for the development of new
restaurants, refurbishments of and capital replacements for existing
restaurants, and enhancements to information systems for the Company's
restaurants and corporate office. The amount of actual capital expenditures will
be dependent upon, among other things, the proportion of leased versus owned
properties as the Company expects to continue to purchase a portion of its
sites. In addition, if the Company opens more restaurants than it currently
anticipates or acquires additional restaurants, its capital requirements will
increase accordingly.
As of March 29, 1998, the Company had certain debt agreements containing various
covenants and restrictions which, among other things, require the maintenance of
a stipulated fixed charge coverage ratio and minimum consolidated net worth, as
defined, and also limit additional indebtedness in excess of specified amounts.
The debt agreements also restrict the amount of retained earnings available for
the payment of cash dividends. At March 29, 1998, retained earnings were not
restricted for the payment of cash dividends. The Company is currently in
compliance with the covenants of all of its debt agreements.
As of March 29, 1998, the Company held liquid assets totaling $21,239,000,
consisting of cash and cash equivalents ($14,818,000) and short-term investments
($6,421,000). In addition, $17,500,000 was outstanding under the revolving
credit facility, and standby letters of credit issued under the facility
totaling $2,156,000 were outstanding as of March 29, 1998.
On March 30, 1998, the Company entered into a bank credit agreement that
provides for $225,000,000 in senior secured credit facilities, consisting of an
eight-year senior secured term loan of $125,000,000 and a five-year secured
working capital facility of $100,000,000. The Company also entered into a
five-year $5,000,000 letter of credit facility with another bank. On March 30,
1998, $125,000,000 was borrowed under the term loan facility and $15,000,000 was
borrowed under the working capital facility. The total proceeds were utilized as
follows:
(i) to fund the Virginia Acquisition (see Note 2) including
related transaction fees and expenses;
(ii) to repay certain existing indebtedness totaling $37,500,000
and to pay a prepayment penalty of $930,000 on a portion of
the repaid debt (which will be reflected as an expense in the
second quarter of 1998); and
(iii) for working capital needs and general corporate purposes.
18
<PAGE>
Up to $50,000,000 of the facilities are available to fund repurchases of the
Company's common stock. Through March 29, 1998, the Company has repurchased
1,270,000 shares of its common stock at an aggregate value of $24,990,000,
pursuant to plans approved by the Company's Board of Directors. The Company
contemplates additional purchases of up to $25,000,000 subject to market
conditions.
The senior term loan bears interest at either the bank's prime rate plus 1.25%
or LIBOR plus 2.25%, at the Company's option, and requires semi-annual principal
payments aggregating $1,250,000 per year for each of the first seven years, with
the remaining $116,250,000 due during the eighth year. The working capital
facility bears interest at either the bank's prime rate plus 0.375% or LIBOR
plus 1.375%, at the Company's option. A commitment fee of 0.30% is payable on
any unused portion of the working capital facility.
In connection with the senior term loan, the Company has entered into interest
rate swap agreements to manage its exposure to interest rate fluctuations. The
agreements are effective beginning May 1, 1998, and have maturity dates ranging
from four to seven years for an aggregate notional amount of $100,000,000 for
three-month LIBOR rates ranging from 5.91% to 6.05%.
Both the senior term loan and the working capital facility are subject to
standard other terms, conditions, covenants, and fees and are secured by the
common stock of each of the Company's present and future subsidiaries and all
intercompany debt of the Company and such subsidiaries.
The Company believes that its liquid assets and cash generated from operations,
combined with borrowings available under its new $225,000,000 senior secured
credit facilities, will provide sufficient funds for its capital requirements
for the foreseeable future.
Inflation
Substantial increases in costs and expenses, particularly food, supplies, labor
and operating expenses, could have a significant impact on the Company's
operating results to the extent that such increases cannot be passed along to
customers. The Company does not believe that inflation has materially affected
its operating results during the past three years.
A majority of the Company's employees are paid hourly rates related to federal
and state minimum wage laws and various laws that allow for credits to that
wage. An increase in the Federal minimum wage went into effect on October 1,
1996, and a second increase became effective on September 1, 1997. In addition,
increases in the minimum wage are also being discussed by various state
governments. Although the Company has been able to and will continue to attempt
to pass along increases in costs through food and beverage price increases,
there can be no assurance that all such increases can be reflected in its prices
or that increased prices will be absorbed by customers without diminishing, to
some degree, customer spending at its restaurants.
19
<PAGE>
New Accounting Pronouncements
In June 1997, the Financial Accounting Standards Board issued Statement of
Financial Accounting Standards ("SFAS") No. 131, "Disclosures about Segments of
an Enterprise and Related Information." SFAS No. 131 establishes standards for
the way public business enterprises report information about operating segments
in annual financial statements and requires that those enterprises report
selected information about operating segments in interim financial reports
issued to shareholders. It also establishes standards for related disclosures
about products and services, geographic areas, and major customers. This
statement is effective for financial statements for periods beginning after
December 15, 1997. In the initial year of application, comparative information
for earlier years is to be presented. This statement need not be applied to
interim financial statements in the initial year of its application, but
comparative information for interim periods in the initial year of application
is to be reported in financial statements for interim periods in the second year
of application.
Forward-Looking Statements
The statements contained herein regarding future sales, operating costs,
restaurant development and capital expenditures are forward-looking and based on
current expectations. There are several risks and uncertainties that could cause
actual results to differ materially from those described. For a discussion of
the principal factors that could cause actual results to be materially
different, refer to the Company's current report on Form 8-K filed with the
Securities and Exchange Commission on February 9, 1998.
Impact of the Year 2000
The Year 2000 will have a broad impact on the business environment in which the
Company operates due to the possibility that many computer systems across all
industries will be unable to process information containing dates beginning in
the Year 2000. The Company has conducted a preliminary assessment of the impact
of the Year 2000 on its accounting, finance, and other systems, as well as the
impact on its external business partners, in order to identify and address
potential business issues relating to the Year 2000. Based on this preliminary
assessment, the Company believes that its significant systems are Year 2000
compliant, and the costs associated with such compliance have not had, and will
not have, a material impact on the Company's results of operations.
20
<PAGE>
PART II. OTHER INFORMATION
Item 1. Legal Proceedings
As of March 29, 1998, the Company was using assets owned by a former franchisee
in the operation of one restaurant under a purchase rights agreement which
required the Company to make certain payments to the franchisee's lender. In
1991, a dispute arose between the lender and the Company over the amount of the
payments due the lender. Based upon a then current independent appraisal, the
Company offered to settle the dispute and purchase the assets for $1,000,000 in
1991. In November 1992, the lender was declared insolvent by the FDIC and has
since been liquidated. The Company closed one of the three restaurants in 1994
and one of the two remaining restaurants in February 1996. In the fourth quarter
of 1996, the Company received information indicating that the franchisee's
indebtedness to the FDIC had been acquired by a third party. In June 1997, the
third party filed a lawsuit against the Company seeking approximately
$3,800,000. The lawsuit remains in the discovery phase. The Company believes it
has meritorious defenses and will vigorously defend this lawsuit. In the event
that the Company were to pay an amount determined to be in excess of the fair
market value of the assets, the Company will recognize a loss at the time of
such payment.
In addition, the Company is involved in various legal actions arising in the
normal course of business. While the resolution of any of such actions or the
matter described above may have an impact on the financial results for the
period in which it is resolved, the Company believes that the ultimate
disposition of these matters will not, in the aggregate, have a material adverse
effect upon its business or consolidated financial position.
Item 6. Exhibits and Reports on Form 8-K
(a) The Exhibits listed on the accompanying Exhibit Index are
filed as part of this report.
(b) The Company filed a report on Form 8-K on January 12, 1998
announcing that it had entered into a definitive agreement
with Apple South, Inc., the Company's largest franchisee, to
acquire 31 Applebee's restaurants plus one restaurant under
construction in the Virginia markets of Norfolk, Richmond,
Roanoke and Charlottesville.
(c) The Company filed a report on Form 8-K on February 9, 1998 in
accordance with the Private Securities Litigation Reform Act
of 1995 as it relates to a safe harbor for companies making
forward-looking statements. The factors listed in the report
are important factors that could cause actual results to
differ materially from those projected in forward-looking
statements made by the Company.
(d) The Company filed a report on Form 8-K on February 9, 1998
announcing that it had entered into a loan commitment with
Merrill Lynch Capital Corporation to provide $225,000,000 in
senior secured credit facilities, consisting of an eight-year
senior secured term loan of $125,000,000 and a five-year
secured revolving credit facility of $100,000,000.
21
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange
Act of 1934, the registrant has duly caused this report to be signed on its
behalf by the undersigned, thereunto duly authorized.
APPLEBEE'S INTERNATIONAL, INC.
(Registrant)
Date: April 29, 1998 By: /s/ Lloyd L. Hill
----------------------- -------------------------
Lloyd L. Hill
Chief Executive Officer, President and
Chief Operating Officer
Date: April 29, 1998 By: /s/ George D. Shadid
----------------------- -------------------------
George D. Shadid
Executive Vice President and
Chief Financial Officer
(principal financial officer)
Date: April 29, 1998 By: /s/ Mark A. Peterson
----------------------- -------------------------
Mark A. Peterson
Vice President and Controller
(principal accounting officer)
22
<PAGE>
APPLEBEE'S INTERNATIONAL, INC.
EXHIBIT INDEX
Exhibit
Number Description of Exhibit
- ------------- ------------------------------------------------------------------
10.1 First Amendment to Employment Agreement with Abe J. Gustin, Jr.,
dated December 31, 1997.
10.2 Form of Severance Agreement.
10.3 Schedule of parties to Severance Agreement.
10.4 Credit Agreement dated as of March 30, 1998.
27 Financial Data Schedule.
23
FIRST AMENDMENT TO EMPLOYMENT AGREEMENT
ABE J. GUSTIN
THIS AMENDMENT TO EMPLOYMENT AGREEMENT is made as of December 31, 1997,
by and between Applebee's International, Inc., a Delaware corporation (the
"Company") and Abe J. Gustin, Jr. (the "Executive").
WHEREAS, the Company and the Executive entered into an Employment
Agreement dated as of January 1, 1996 (the "Employment Agreement"), and
WHEREAS, the parties desire to amend and extend said Employment
Agreement as herein set forth,
NOW THEREFORE, for and in consideration of the terms and conditions
herein set forth, the parties hereto hereby agree as follows:
1. Section 3 of the Employment Agreement is amended by deleting the
same as it now appears and inserting in its place and stead the following:
"3. Duties. The Executive is hereby employed as Chairman of
the Board of the Company and shall render his services at the principal offices
of the Company, as such may be located from time to time, unless otherwise
agreed between the Board and the Executive. The Executive shall have authority
and shall perform such duties as are specified by the bylaws of the Company for
the office of Chairman; subject however, to such limitations, instructions,
directions, and control as the Board may specify from time to time in its sole
discretion."
2. Section 4 of the Employment Agreement is amended by deleting the
same as it now appears and inserting in its place and stead the following:
"4. Term. This Agreement shall have a term of two (2) years,
commencing as of January 1, 1998 and is subject to earlier termination as
hereinafter provided."
3. Section 5a. of the Employment Agreement shall be amended by
inserting the base salary of $500,000 in place of the salary reflected in the
Section. In addition, the following language shall be added to the end of said
Section 5a.:
"Executive's salary for 1999 shall be determined by mutual
agreement between the parties and may be either increased or decreased depending
upon the amount and type of service/duties contemplated to be assigned to the
Executive during 1999."
1
<PAGE>
4. Section 5b. of the Employment Agreement is amended by adding to the
Section the following sentence:
"Provided, however, the Executive understands and agrees that
he shall not participate in the standard executive bonus plan and no bonus will
be paid to him unless expressly agreed to by the Board."
5. Section 6a. of the Employment Agreement is amended to delete any
reference to ". . . any executive bonus plan . . . " from the Section.
6. Section 6d. of the Employment Agreement shall be modified so that
the Section clearly states that the Executive shall not be entitled to
participate in any additional or future stock option grants offered other
executives or members of the Board of the Company, unless the Board, in its
discretion, expressly grants the Executive such an option.
7. In all other respects, the Employment Agreement shall remain in full
force and effect during the continued term hereof, the same as if it had not
been modified by this agreement.
IN WITNESS WHEREOF, the undersigned have caused this Amendment to be
signed as of the day and year first above written.
_________________________ Applebee's International,Inc.
Abe J. Gustin, Jr.
By__________________________
Name:_____________________
Title:____________________
CHANGE IN CONTROL AGREEMENT
This Agreement is made as of , 1997, by and between APPLEBEE'S
INTERNATIONAL, INC., a Delaware corporation (the "Company") and
_________________ (the "Executive").
WHEREAS, for purposes of this Agreement, "Company" is hereby defined to
include Applebee's International, Inc. and all of its wholly-owned subsidiaries
or subsidiaries of subsidiaries now or hereafter in existence.
WHEREAS, the Company believes it to be in its best interest to provide
for continuity of management and to protect its management personnel against
financial hardship in the event of a change in control of the Company.
NOW, THEREFORE, in consideration of premises and the mutual terms and
conditions hereof, the company and the Executive hereby agree as follows:
1. Termination After Change in Control. In the event of a Change in
Control, as defined below, any termination of Executive's employment with the
Company within the 12 month period following such Change in Control, whether by
Executive or by the Company and whether with or without cause, the following
shall occur:
a. On the tenth business day following the effective date of
such termination, the Executive shall receive a lump sum payment in
cash equal to (i) his current fiscal year annualized salary times a
multiple ("Multiple") and (ii) either an amount equal to (a) the
Multiple times his/her prior year's bonus, if such a Change in Control
occurs during the first six months of any year, or (b) if the Change in
Control occurs in the second six months of any year, the Multiple times
the annualized amount of all earned bonuses, including any amount of
accrued but unpaid bonus amounts (including any hold backs), calculated
under the Executive Bonus Plan for each prior fiscal quarter in the
fiscal year in which the termination becomes effective, including the
fiscal quarter in which the termination becomes effective (so long as
the termination becomes effective after the ninth week of such fiscal
quarter). Multiple is defined as a fraction, the denominator of which
is twelve (12) and the numerator of which is a number equal to twelve
(12) plus a number equal to the number of years of service of the
Executive for the Company, rounded to the nearest whole number, said
numerator not to exceed twenty (20). By way of example only, the
payment to be made pursuant to the foregoing as a result of a Change in
Control occurring in March regarding an executive with 2.6 years of
service, who earns a base salary of $100,000 and who received a bonus
during the preceding year of $40,000 would be computed as follows:
$100,000 x 15/12 + $40,000 x 15/12 = $175,000; and
1
<PAGE>
by way of further example only, the payment to be made pursuant to the
foregoing as a result of a Change in Control occurring in second week
of September regarding an Executive who earns a base salary of $100,000
and who received a bonus for the first two quarters of the year in the
amount of $15,000 paid and $7,500 accrued but unpaid and who upon
calculation of the projected bonus for the 3rd quarter would be
eligible for an additional $7,500, the amount would be computed as
follows:
$100,000 x 15/12 + $22,500 x 15/12 + $7,500 x 15/12 + ($30,000
x 3/4) x 15/12 = $190,625.00; and
b. The Executive shall be entitled to continuation of coverage
for twelve (12) months (beginning with the month subsequent to the
effective date of such termination) under all Company paid or partially
paid health, disability, or group life insurance plans or any
retirement, pension, or profit sharing plans, or any stock, restrictive
stock, phantom stock, stock appreciation rights or other such option or
incentive plan, in each case at such level as had been available to the
Executive immediately prior to the Change in Control; and
c. Any unvested portion of all stock options held by the
Executive as of the day immediately preceding the effective date of
such termination shall immediately vest and become exercisable and, for
purposes of such options, such termination shall be deemed to be a
termination by the Company not for cause. Further, any restricted stock
held by the Executive shall be deemed unrestricted as of the day
immediately preceding the effective date of such termination.
2. Definitions Related to Change in Control.
a. "Change in Control" means any one of the following: (i)
Continuing Directors no longer constitute at least 2/3 of the Board of
Directors; (ii) any person or group of persons (as defined in Rule
13d-5 under the Securities Exchange Act of 1934), together with its
affiliates, become the beneficial owner, directly or indirectly, or 30%
or more of the Company's then outstanding Common Stock or 30% or more
of the voting power of the Company's then outstanding securities
entitled generally to vote for the election of the Company's Directors;
(iii) the approval by the Company's stockholders of the merger or
consolidation of the Company with any other corporation, the sale of
substantially all of the assets of the Company or the liquidation or
dissolution of the Company, unless, in the case of a merger or
consolidation, then Continuing Directors in office immediately prior to
such merger or consolidation will constitute at least 2/3 of the Board
of Directors of the surviving corporation of such merger or
consolidation and any parent (as such term is defined in Rule 12b-2
under the Securities Exchange Act of 1934) of such corporation; or (iv)
at least 2/3 of the then Continuing Directors in office immediately
prior to any other action proposed to be taken by the Company's
Stockholders or by the Company's Board of Directors determine that such
proposed action, if taken, would constitute a change of control of the
Company and such action is taken.
2
<PAGE>
b. "Continuing Director" means any individual who either (i)
was a member of the Company's Board of Directors on the date hereof, or
(ii) was designated (before initial election as a Director) as a
continuing Director by a majority of the then Continuing Directors.
3. Arbitration of Disputes. Any dispute or claim arising out of or
relating to this Agreement shall be settled by arbitration in Johnson County,
Kansas in accordance with the then current rules of the American Arbitration
Association, and judgment upon any award rendered therein may be entered in any
court having proper jurisdiction. The Company shall bear the full cost of any
arbitration, including the expenses and attorneys' fees incurred by the
Executive related thereto and including any actions taken by either party to
appeal or enforce the judgment rendered therein, regardless of the outcome of
such arbitration, and the Company shall not be entitled to use any lawyer who is
a Company employee to represent it in any dispute or arbitration related hereto.
Notwithstanding the foregoing, if the Company refuses to arbitrate such a
dispute and the same is submitted to a court for resolution, the Company shall
pay all attorneys fees and expenses as incurred by Executive in enforcing this
Agreement, in addition to any such fees and expenses incurred by the Company.
Conversely, if the Executive refuses to arbitrate such a dispute and the same is
submitted to a court for resolution, the Company shall not be obligated to pay
Executive's attorneys fees or expenses. Provided however, in no event shall the
attorneys fees to be paid by the Company on behalf of the Executive exceed
$25,000.
4. Mitigation. The Executive shall have no duty to attempt to mitigate
the level of benefits payable by the Company to him hereunder and the Company
shall not be entitled to set off against the amounts payable hereunder any
amounts received by the Executive from any other source, including any
subsequent employer.
3
<PAGE>
5. General Provisions.
a. Law governing. This Agreement shall be governed by and
construed in accordance with the laws of the State of Kansas.
b. Termination. This Agreement shall remain in effect for a
period of three (3) years from and after the date hereof and shall be
automatically extended thereafter for additional terms of one (1) year
each, unless either party has provided the other party written notice
of the termination hereof sixty (60) days prior to the end of the then
applicable term. Notwithstanding the foregoing, if a Change in Control
occurs, this Agreement shall not terminate or be terminable by either
party until twelve (12) months after the effective date of the Change
in Control.
c. Invalid Provisions. If any provision of this Agreement is
held to be illegal, invalid, or unenforceable, such provision shall be
fully severable and this Agreement shall be construed and enforced as
if such illegal, invalid, or unenforceable provision had never
comprised a part hereof; and the remaining provisions hereof shall
remain in full force and effect and shall not be affected by the
illegal, invalid, or unenforceable provision or by its severance
herefrom. Furthermore, in lieu of such illegal, invalid, or
unenforceable provision there shall be added automatically as a part of
this Agreement a provision as similar in terms to such illegal,
invalid, or unenforceable provision as may be possible and still be
legal, valid or enforceable.
d. Entire Agreement. This Agreement sets forth the entire
understanding of the parties and supersedes all prior agreements or
understandings, whether written or oral, with respect to termination or
severance benefits payable by the Company to the Executive. No terms,
conditions, warranties, other than those contained herein, and no
amendments or modifications hereto shall be binding unless made in
writing and signed by the parties hereto.
e. Binding Effect. This Agreement shall extend to and be
binding upon and inure to the benefit to the parties hereto, their
respective heirs, representatives, successors and assigns. This
Agreement may not be assigned by the Executive.
f. Waiver. The waiver by either party hereto of a breach of
any term or provision of this Agreement shall not operate or be
construed as a waiver of a subsequent breach of the same provision by
any party or of the breach of any other term or provision of this
Agreement.
g. Titles. Titles of the paragraphs herein are used solely for
convenience and shall not be used for interpretation or construing any
work, clause, paragraph, or provision of this Agreement.
h. Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but which
together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and the Executive have executed this
Agreement as of the date and year first above written above.
EXECUTIVE: APPLEBEE'S INTERNATIONAL, INC.
- ------------------ By:-----------------------------
4
SCHEDULE OF PARTIES TO SEVERANCE AGREEMENT
Abe J. Gustin
Robert A. Martin
Stuart F. Waggoner
Robert T. Steinkamp
John A. Weber
Louis A. Kaucic
Larry A. Cates
Robert A. Hoffmeister
Mark A. Peterson
Richard K. Horn
William L. McClave
W. Matt Carpenter
Harry B. Stroup
Steve K. Lumpkin
$225,000,000
CREDIT AGREEMENT
Dated as of March 30, 1998
Among
APPLEBEE'S INTERNATIONAL, INC.
as Borrower
and
MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED
as Arranger and Syndication Agent
and
THE INITIAL LENDERS and INITIAL ISSUING BANK
NAMED HEREIN
as Initial Lenders and Initial Issuing Bank
and
THE FIRST NATIONAL BANK OF CHICAGO
as Administrative Agent
and
NATIONSBANK, N.A.
as Documentation Agent
<PAGE>
TABLE OF CONTENTS
Section Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms...............................................1
1.02. Computation of Time Periods........................................26
1.03. Accounting Terms...................................................26
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
2.01. The Advances.......................................................26
2.02. Making the Advances................................................27
2.03. Issuance of and Drawings and Reimbursement Under Letters of Credit.29
2.04. Repayment of Advances..............................................30
2.05. Termination or Reduction of the Commitments........................32
2.06. Prepayments........................................................32
2.07. Interest...........................................................35
2.08. Fees...............................................................36
2.09. Conversion of Advances.............................................37
2.10. Increased Costs, Etc...............................................38
2.11. Payments and Computations..........................................39
2.12. Taxes..............................................................40
2.13. Sharing of Payments, Etc...........................................42
2.14. Use of Proceeds....................................................43
2.15. Defaulting Lenders.................................................43
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Initial Extension of Credit................45
3.02. Conditions Precedent to Each Borrowing and Issuance................49
3.03. Determinations Under Section 3.01..................................50
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Section Page
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower.....................50
ARTICLE V
COVENANTS OF THE BORROWER
5.01. Affirmative Covenants..............................................56
5.02. Negative Covenants.................................................59
5.03. Reporting Requirements.............................................75
5.04. Financial Covenants................................................79
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default..................................................80
6.02. Actions in Respect of the Letters of Credit upon Default...........83
ARTICLE VII
THE AGENTS
7.01. Authorization and Action...........................................84
7.02. Agent's Reliance, Etc..............................................84
7.03. ML&Co., First Chicago and NationsBank and Affiliates...............85
7.04. Lender Party Credit Decision.......................................85
7.05. Indemnification....................................................85
7.06. Successor Agents...................................................87
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc....................................................88
8.02. Notices, Etc.......................................................89
8.03. No Waiver; Remedies................................................89
8.04. Costs, Expenses and Certain Taxes..................................89
8.05. Right of Set-off...................................................91
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Section Page
8.06. Binding Effect.....................................................91
8.07. Assignments and Participations.....................................91
8.08. Execution in Counterparts..........................................94
8.09. No Liability of the Issuing Bank...................................94
8.10. Confidentiality....................................................95
8.11. Jurisdiction, Etc..................................................95
8.12. Governing Law......................................................95
8.13. Waiver of Jury Trial...............................................95
8.14. Intercreditor Agreement............................................96
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.01(c) - Surviving Debt
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Etc.
Schedule 4.01(n) - Plans and Multiemployer Plans
Schedule 4.01(bb) - Open Years
Schedule 4.01(gg) - Existing Debt
Schedule 4.01(hh) - Surviving Debt
Schedule 4.01(jj) - Investments
Schedule 4.01(kk) - Intellectual Property
Schedule 5.02(a)(i)(C) - Existing Liens
Schedule 5.02(a)(ii)(A)(7) - Unsecured Guarantees
Schedule 5.02(a)(vi)(F) - Existing Investments
Schedule 5.02(b)(i)(C) - Existing Liens
Schedule 5.02(b)(ii)(A)(7) - Unsecured Guaranties
Schedule 5.02(b)(v)(F) - Existing Investments
EXHIBITS
Exhibit A-1 - Form of Term Note
Exhibit A-2 - Form of Working Capital Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Borrower Pledge Agreement
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Exhibit D-2 - Form of Subsidiaries Pledge Agreement
Exhibit E - Form of Guaranty
Exhibit F - Form of Intercreditor Agreement
Exhibit G-1 - Form of Opinion of Loan Parties' Special Counsel
Exhibit G-2 - Form of Opinion of Arranger's Special New York Counsel
Exhibit H - Form of Solvency Certificate
Exhibit I - Form of Intercompany Note
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<PAGE>
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of March 30, 1998 among APPLEBEE'S
INTERNATIONAL, INC., a Delaware corporation (the "Borrower"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "Initial Lenders"), THE FIRST NATIONAL
BANK OF CHICAGO ("First Chicago") as the initial issuing bank (the "Initial
Issuing Bank"), MERRILL LYNCH, PIERCE, FENNER & SMITH INCORPORATED ("ML&Co.") as
arranger (together with any successor appointed pursuant to Article VII, the
"Arranger") and as syndication agent (together with any successor appointed
pursuant to Article VII, the "Syndication Agent"), NATIONSBANK, N.A.
("NationsBank") as documentation agent (together with any successor appointed
pursuant to Article VII, the "Documentation Agent") and First Chicago, as
administrative agent (together with any successor appointed pursuant to Article
VII, the "Administrative Agent") for (i) the Issuing Bank and the Working
Capital Lenders (as hereinafter defined) and (ii) the Term Lenders (as
hereinafter defined), respectively.
PRELIMINARY STATEMENTS:
(1) Pursuant to the Asset Purchase Agreement dated December
23, 1997 (the "Purchase Agreement") between the Borrower and Apple South, Inc.
("Apple South"), the Borrower proposes to acquire (the "Acquisition") certain
restaurants more fully described on Exhibit 1.1 to the Purchase Agreement (such
restaurants, together with the other assets to be acquired pursuant to the
Purchase Agreement, the "Acquired Assets") and to refinance certain existing
debt, finance the Buyback (as hereinafter defined) and obtain financing for
general corporate and other permitted purposes.
(2) The Borrower has requested that the Lender Parties provide
financing for the Acquisition and such other financing as provided for herein
and that, from time to time, the Lender Parties lend to the Borrower and issue
Letters of Credit for the benefit of the Borrower to provide working capital for
the Borrower and its Subsidiary Parties. The Lender Parties have indicated their
willingness to agree to lend such amounts on the terms and conditions of this
Agreement.
NOW, THEREFORE, in consideration of the premises and of the
mutual covenants and agreements contained herein, the parties hereto hereby
agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain Defined Terms. As used in this
Agreement, the following terms shall have the following meanings (such meanings
to be equally applicable to both the singular and plural forms of the terms
defined):
"Acquired Assets" has the meaning set forth in the Preliminary
Statements.
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"Acquisition" has the meaning set forth in the Preliminary
Statements.
"Adjusted Capital Expenditures" means, for any Person for any
period, all Capital Expenditures during such Period other than Capital
Expenditures described in proviso clauses (ii) and (iii) of Section
5.02(a)(xvii) and 5.02(b)(xi) during such period.
"Administrative Agent" has the meaning specified in the
recital of parties to this Agreement.
"Administrative Agent's Account" means an account of the
Administrative Agent maintained at its office at One First National
Plaza, Chicago, Illinois 60670 or such other office as the
Administrative Agent may designate, such account to be specified from
time to time by the Administrative Agent.
"Advance" means a Term Advance, a Working Capital Advance or a
Letter of Credit Advance.
"Affiliate" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling," "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 5% or more of the Voting Stock of such Person or to direct or
cause the direction of the management and policies of such Person,
whether through the ownership of Voting Stock, by contract or
otherwise.
"Agent" has the meaning set forth in Section 7.01.
"Apple South" has the meaning specified in the Preliminary
Statements.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a
Base Rate Advance and such Lender Party's Eurodollar Lending Office in
the case of a Eurodollar Rate Advance.
"Appropriate Lender" means, at any time, with respect to (a)
either of the Term or Working Capital Facilities, a Lender that has a
Commitment with respect to such Facility at such time and (b) the
Letter of Credit Facility, (i) the Issuing Bank and (ii) if the other
Working Capital Lenders have made Letter of Credit Advances pursuant to
Section 2.03(b) that are outstanding at such time, each such other
Working Capital Lender.
"Arranger" has the meaning specified in the recital of parties
to this Agreement.
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<PAGE>
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted
by the Administrative Agent, in accordance with Section 8.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time,
the maximum amount available to be drawn under such Letter of Credit at
such time (assuming compliance at such time with all conditions to
drawing).
"Bank Hedge Agreement" means any interest rate Hedge Agreement
required or permitted under Article V that is entered into by and
between the Borrower and any Hedge Bank.
"Base Rate" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the highest of:
(a) the rate of interest announced publicly by First
Chicago in Chicago, Illinois, from time to time, as First
Chicago's corporate base rate, changing when and as said
corporate base rate changes; and
(b) 1/2 of one percent per annum above the Federal
Funds Rate.
"Base Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties
to this Agreement.
"Borrower's Account" means the account of the Borrower
maintained by the Borrower with UMB, N.A. at its office at 1010 Grand
Blvd, Kansas City, MO, 64106, Account No.
9870429527.
"Borrower Pledge Agreement" has the meaning specified in
Section 3.01(k)(vii).
"Borrowing" means a Term Borrowing or a Working Capital
Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City or Chicago,
Illinois and, if the applicable Business Day relates to any Eurodollar
Rate Advances, on which dealings are carried on in the London interbank
market.
"Buyback" means the buyback from public shareholders of up to
$50,000,000 of the Borrower's common stock commencing December 29,
1997.
"Capital Expenditures" means, for any Person for any period,
the sum of all expenditures made, directly or indirectly, by such
Person or any of its Subsidiary Parties during such period for
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<PAGE>
equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have
been or should be, in accordance with GAAP, reflected as additions to
property, plant or equipment on a Consolidated statement of cash flows
of such Person or have a useful life of more than one year.
"Capitalized Leases" means all leases that have been or should
be, in accordance with GAAP, recorded as capitalized leases.
"Cash Collateral Account" has the meaning specified in the
Borrower Pledge Agreement.
"Cash Equivalents" means any of the following, to the extent
owned by the Borrower or any of its Subsidiary Parties free and clear
of all Liens other than Liens created under the Collateral Documents
and having a maturity of not greater than 360 days from the date of
acquisition thereof: (a) readily marketable direct obligations of the
Government of the United States or any agency or instrumentality
thereof or obligations unconditionally guaranteed by the full faith and
credit of the Government of the United States, (b) insured certificates
of deposit of or time deposits with any commercial bank that is a
Lender Party or a member of the Federal Reserve System, issues (or the
parent of which issues) commercial paper rated as described in clause
(c), is organized under the laws of the United States or any State
thereof and has combined capital and surplus of at least $1 billion or
(c) commercial paper in an aggregate amount of no more than $2.5
million per issuer outstanding at any time, issued by any corporation
organized under the laws of any State of the United States and rated at
least "Prime-1" (or the then equivalent grade) by Moody's or "A-1" (or
the then equivalent grade) by S&P.
"Cash Interest Expense" means, for any period, all interest
expense paid or payable on all Debt of the Borrower and its Subsidiary
Parties for such period, determined on a Consolidated basis and in
accordance with GAAP for such period, including, without limitation,
(a) interest expense paid or payable in respect of Debt resulting from
Advances, (b) all fees paid or payable pursuant to Section 2.08, (c)
the interest component of all Obligations in respect of Capitalized
Leases, (c) commissions, discounts and other fees and charges paid or
payable in connection with letters of credit and (d) the net payment,
if any, paid or payable in connection with Hedge Agreements less the
net credit, if any, received in connection with Hedge Agreements, but
excluding, in each case, (A) any amortization of original issue
discount, (B) the interest portion of any deferred payment obligation,
(C) any other interest not payable in cash, including, without
limitation, amortization of deferred financing costs and (D)
capitalized interest reflected in Capital Expenditures.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
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"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Change of Control" means the occurrence of any of the
following: (i) any person or two or more persons acting in concert
shall have acquired beneficial ownership (within the meaning of Rule
13d-3 of the Securities and Exchange Commission under the Securities
Exchange Act of 1934), directly or indirectly, of voting stock of the
Borrower (or other securities convertible into such voting stock)
representing 33% or more of the combined voting power of all voting
stock of the Borrower; (ii) a majority of the members of the Board of
Directors of the Borrower cease to be Continuing Directors (defined, as
of any date of determination, as any member of the Board of Directors
who was nominated for election or elected to such Board of Directors
with, or whose election to such Board of Directors was approved by, the
affirmative vote of a majority of the Continuing Directors who were
members of such Board of Directors at the time of such nomination or
election); or (iii) any person or two or more persons acting in concert
shall have acquired by contract or otherwise, or shall have entered
into a contract or arrangement that, upon consummation, will result in
its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of
the Borrower.
"CIGNA Make-Whole" means the make-whole premium in the amount
not in excess of $1,500,000 payable by the Borrower in connection with
the repayment of indebtedness in respect of its 7.70% Senior Notes due
May 31, 2004 pursuant to the Note Purchase Agreement dated as of June
1, 1994.
"Closing Date" with respect to a Facility means the date of
the initial extension of credit under such Facility.
"Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Administrative Agent for the
benefit of the Secured Parties.
"Collateral Agent" has the meaning set forth in the
Intercreditor Agreement.
"Collateral Documents" means the Borrower Pledge Agreement,
the Subsidiaries Pledge Agreement and any other agreement that creates
or purports to create a Lien in favor of the Administrative Agent for
the benefit of the Secured Parties (including, without limitation, any
such agreement delivered pursuant to Section 5.02(b)(ii)).
"Commitment" means a Term Commitment, a Working Capital
Commitment or a Letter of Credit Commitment.
"Commitment Fee Rate" means with respect to the Working
Capital Facility (i) until the first anniversary of the Closing Date,
.30 of 1% per annum and (ii) thereafter, (A) at all times that the
Borrower has a senior unsecured long term debt rating of less than BBB-
from
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S&P or Baa3 from Moody's, a percentage per annum determined by
reference to the Leverage Ratio as set forth in Table A below and (B)
at all times that the Borrower has a senior unsecured long term debt
rating of BBB- or greater from S&P and Baa3 or greater from Moody's, a
rate per annum determined by reference to the senior unsecured long
term debt ratings as set forth in Table B:
TABLE A
Commitment Fee Rate
---------------------------------------------------
Level I Rate
less than 1.5:1 0.25
Level II
1.5:1 or greater,
but less than 2:1 0.30
Level III
2:1 or greater 0.375
TABLE B
Commitment Fee Rate
---------------------------------------------------
Level I Rate
BBB+/ Baa1
or higher 0.15
Level II
BBB/ Baa2 0.20
Level III
BBB-/ Baa3 0.20
The Commitment Fee shall be determined by reference to the ratio or
rating, as the case may be, in effect from time to time; provided,
however, that (A) no change in the Commitment Fee Rate determined by
reference to Table A shall be effective until three Business Days after
the date on which the Administrative Agent receives financial
statements pursuant to Section 5.03(b) or (c) and a certificate of the
chief financial officer of the Borrower demonstrating such ratio and
(B) if the Borrower has not submitted to the Administrative Agent the
information described in clause (A) of this proviso as and when
required under Section 5.03(b) or (c), as the case may be, the
Commitment Fee Rate shall be at Level III for so long as such
information has not been received by the Administrative Agent; and
provided, further that if the Commitment Fee Rate is determined by
reference to Table B, (a) if neither S&P nor Moody's shall have in
effect a senior unsecured long term debt rating, the Commitment Fee
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Rate will be set in accordance with clause (ii)(A) of this definition;
(b) if the ratings established by S&P and Moody's shall fall within
different levels, the Commitment Fee Rate shall be based upon the lower
rating; and (c) if any rating established by S&P or Moody's shall be
changed, such change shall be effective as of the date on which such
change is first announced publicly by the rating agency making such
change.
"Confidential Information" means information that the Borrower
furnishes to the Administrative Agent or any Lender Party in a writing
designated as confidential, but does not include any such information
that is or becomes generally available to the public other than as a
result of a breach by the Administrative Agent or any Lender Party of
its obligations hereunder or that is or becomes available to the
Administrative Agent or such Lender Party from a source other than the
Borrower and the Administrative Agent or such Lender Party does not
have any actual knowledge that such information was obtained
unlawfully.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Conversion", "Convert" and "Converted" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.09 or 2.10.
"Coverage Ratio" means, at any date, the ratio of (a) EBITDAR
for the most recently completed four fiscal quarters of the Borrower to
(b) the sum of (i) Cash Interest Expense, (ii) cash dividends and
distributions and (iii) the aggregate amount of all payments made in
cash on all operating leases, in each case of the Borrower and its
Subsidiary Parties, determined in accordance with GAAP for such period.
"Debt" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations of
such Person for the deferred purchase price of property or services
(other than trade payables not overdue by more than 120 days incurred
in the ordinary course of such Person's business), (c) all Obligations
of such Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations of such Person created or arising
under any conditional sale or other title retention agreement with
respect to property acquired by such Person (even though the rights and
remedies of the seller or lender under such agreement in the event of
default are limited to repossession or sale of such property), (e) all
Obligations of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any capital stock of or other ownership or profit
interest in such Person or any other Person or any warrants, rights or
options to acquire such capital stock, valued, in the case of
Redeemable Preferred Shares, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends,
(h) all net Obligations of such Person in respect of Hedge Agreements,
(i) all Debt of others referred to in clauses (a) through (h) above or
clause (j) below guaranteed directly or indirectly in any manner by
such Person, or in effect guaranteed directly or indirectly by such
Person through an agreement (i) to pay or purchase such Debt or to
advance or supply funds for the payment or purchase of such Debt,
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(ii) to purchase, sell or lease (as lessee or lessor) property, or to
purchase or sell services, primarily for the purpose of enabling the
debtor to make payment of such Debt or to assure the holder of such
Debt against loss, (iii) to supply funds to or in any other manner
invest in the debtor (including any agreement to pay for property or
services irrespective of whether such property is received or such
services are rendered) or (iv) otherwise to assure a creditor against
loss, and (j) all Debt referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such Debt.
"Debt for Borrowed Money" of any Person means all items that
in accordance with GAAP would be classified as debt on the Consolidated
balance sheet of such Person.
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at
any time, the portion of any Advance required to be made by such Lender
Party to the Borrower pursuant to Section 2.01 or 2.02 at or prior to
such time that has not been made by such Lender Party or by the
Administrative Agent for the account of such Lender Party pursuant to
Section 2.02(d) as of such time. In the event that a portion of a
Defaulted Advance shall be deemed made pursuant to Section 2.15(a), the
remaining portion of such Defaulted Advance shall be considered a
Defaulted Advance originally required to be made pursuant to Section
2.01 on the same date as the Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time that has not been so paid
as of such time, including, without limitation, any amount required to
be paid by such Lender Party to (a) the Issuing Bank pursuant to
Section 2.03(b) to purchase a portion of a Letter of Credit Advance
made by the Issuing Bank, (b) the Administrative Agent pursuant to
Section 2.02(d) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of such
Lender Party, (c) any other Lender Party pursuant to Section 2.13 to
purchase any participation in Advances owing to such other Lender Party
and (d) the Administrative Agent or the Issuing Bank pursuant to
Section 7.05 to reimburse the Administrative Agent or the Issuing Bank
for such Lender Party's ratable share of any amount required to be paid
by the Lender Parties to the Administrative Agent or the Issuing Bank
as provided therein. In the event that a portion of a Defaulted Amount
shall be deemed paid pursuant to Section 2.15(b), the remaining portion
of such Defaulted Amount shall be considered a Defaulted Amount
originally required to be paid hereunder or under any other Loan
Document on the same date as the Defaulted Amount so deemed paid in
part.
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"Defaulting Lender" means, at any time, any Lender Party that,
at such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b)
shall take any action or be the subject of any action or proceeding of
a type described in Section 6.01(f).
"Documentation Agent" has the meaning specified in the recital
of parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office, branch, subsidiary or
affiliate of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"Dutch Subsidiary" means A.I.I. Euro Services (Holland) B.V.,
a Netherlands corporation.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss)(excluding any
effect of the payment of the CIGNA Make-Whole), (b) interest expense,
(c) income tax expense, (d) depreciation expense, (e) amortization
expense and (f) other non-cash losses (except any non-cash losses that
requires accrual of a reserve for anticipated future cash payments for
any period other than accrual for future obligations made pursuant to
SFAS No. 87, No. 112 or No. 116, as amended) deducted in calculating
net income (or net loss) (including, without limitation, loss on the
disposition of assets)), less other non-cash gains (including, without
limitation, gain on the disposition of assets)), in each case of the
Borrower and its Subsidiary Parties, determined in accordance with GAAP
for such period.
"EBITDAR" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss)(excluding any
effect of the payment of the CIGNA Make-Whole), (b) interest expense,
(c) income tax expense, (d) depreciation expense, (e) amortization
expense, (f) the aggregate amount of all payments made in cash on all
operating leases and (g) other non-cash losses (except any non-cash
losses that requires accrual of a reserve for anticipated future cash
payments for any period other than accrual for future obligations made
pursuant to SFAS No. 87, No. 112 or No. 116, as amended) deducted in
calculating net income (or net loss) (including, without limitation,
loss on the disposition of assets)), less other non-cash gains
(including, without limitation, gain on the disposition of assets)), in
each case of the Borrower and its Subsidiary Parties, determined in
accordance with GAAP for such period.
"Eligible Assignee" means (a) with respect to any Facility
(other than the Letter of Credit Facility), (i) a Lender; (ii) an
Affiliate of a Lender; (iii) a commercial bank organized under the laws
of the United States, or any State thereof, and having total assets in
excess of $500,000,000; (iv) a savings and loan association or savings
bank organized under the laws of the United States, or any State
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thereof, and having total assets in excess of $500,000,000; (v) a
commercial bank organized under the laws of any other country that is a
member of the OECD or has concluded special lending arrangements with
the International Monetary Fund associated with its General
Arrangements to Borrow or of the Cayman Islands, or a political
subdivision of any such country, and having total assets in excess of
$500,000,000, so long as such bank is acting through a branch or agency
located in the United States; (vi) the central bank of any country that
is a member of the OECD; (vii) a finance company, insurance company or
other financial institution or fund (whether a corporation,
partnership, trust or other entity) that is engaged in making,
purchasing or otherwise investing in commercial loans in the ordinary
course of its business and having total assets in excess of
$500,000,000 and that is an "accredited investor" as defined under Rule
501 of Regulation D promulgated under the Securities Exchange Act of
1934, as amended; and (viii) any other Person approved by the
Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed, and (b) with respect to the Letter of
Credit Facility, a Person that is an Eligible Assignee under subclause
(iii) or (v) of clause (a) of this definition and is approved by the
Administrative Agent and the Borrower, such approval not to be
unreasonably withheld or delayed; provided, however, that neither any
Loan Party nor any Affiliate of a Loan Party shall qualify as an
Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of
liability or potential liability, investigation, proceeding, consent
order or consent agreement relating in any way to any Environmental
Law, any Environmental Permit or Hazardous Material or arising from
alleged injury or threat to health, safety or the environment,
including, without limitation, (a) by any governmental or regulatory
authority for enforcement, cleanup, removal, response, remedial or
other actions or damages and (b) by any governmental or regulatory
authority or third party for damages, contribution, indemnification,
cost recovery, compensation or injunctive relief.
"Environmental Law" means any federal, state or local statute,
law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree, judicial interpretation, policy or guidance (so
long as it is publically available, whether or not published) or
published agency interpretation, policy or guidance relating to
pollution or protection of the environment, health, safety or natural
resources, including, without limitation, those relating to the use,
handling, transportation, treatment, storage, disposal, release or
discharge of Hazardous Materials.
"Environmental Permit" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of Section
414 of the Internal Revenue Code.
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"ERISA Event" means (a)(i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to any
Plan unless the 30-day notice requirement with respect to such event
has been waived by the PBGC, or (ii) the requirements of subsection (1)
of Section 4043(b) of ERISA (without regard to subsection (2) of such
Section) are met with respect to a contributing sponsor, as defined in
Section 4001(a)(13) of ERISA, of a Plan, and an event described in
paragraph (9), (10), (11), (12) or (13) of Section 4043(c) of ERISA is
reasonably expected to occur with respect to such Plan within the
following 30 days; (b) the application for a minimum funding waiver
with respect to a Plan; (c) the provision by the administrator of any
Plan of a notice of intent to terminate such Plan, pursuant to Section
4041(a)(2) of ERISA (including any such notice with respect to a plan
amendment referred to in Section 4041(e) of ERISA); (d) the cessation
of operations at a facility of any Loan Party or any ERISA Affiliate in
the circumstances described in Section 4062(e) of ERISA; (e) the
withdrawal by any Loan Party or any ERISA Affiliate from a Multiple
Employer Plan during a plan year for which it was a substantial
employer, as defined in Section 4001(a)(2) of ERISA; (f) the conditions
for imposition of a lien under Section 302(f) of ERISA shall have been
met with respect to any Plan; (g) the adoption of an amendment to a
Plan requiring the provision of security to such Plan pursuant to
Section 307 of ERISA; or (h) the institution by the PBGC of proceedings
to terminate a Plan pursuant to Section 4042 of ERISA, or the
occurrence of any event or condition described in Section 4042 of ERISA
that constitutes grounds for the termination of, or the appointment of
a trustee to administer, such Plan.
"Eurocurrency Liabilities" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"Eurodollar Lending Office" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office, branch, subsidiary or affiliate of such Lender Party
as such Lender Party may from time to time specify to the Borrower and
the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum (rounded upward, if necessary, to the nearest
1/32 of one percent) as determined on the basis of the offered rates
for deposits in U.S. dollars, for a period of time comparable to such
Interest Period that appears on the Telerate Page 3750 as of 11:00 A.M.
(London time) two Business Days before the first day of such Interest
Period, provided, however, that if the rate described above does not
appear on the Telerate System on any applicable interest determination
date, the Eurodollar Rate shall be the rate (rounded upward as
described above, if necessary) for deposits in dollars for a period
substantially equal to the Interest Period on the Reuters Page "LIBO"
(or such other page as may replace the LIBO page on that service for
the purpose of displaying such rates), as of 11:00 A.M. (London time)
two Business Days before the first day of such Interest Period.
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If both the Telerate and Reuters system are unavailable, then
the rate for that date will be determined on the basis of the offered
rates for deposits in U.S. dollars for a period of time comparable to
such Interest Period that are offered by four major banks in the London
interbank market at approximately 11:00 A.M. (London time) two Business
Days before the first day of such Interest Period as selected by the
Administrative Agent. The principal London office of each of the four
major London banks will be requested to provide a quotation of its U.S.
dollar deposit offered rate. If at least two such quotations are
provided, the rate for that date will be the arithmetic mean of the
quotations. If fewer than two quotations are provided as requested, the
rate for that date will be determined on the basis of the rates quoted
for loans in U.S. dollars to leading European banks for a period of
time comparable to such Interest Period offered by major banks in New
York City at approximately 11:00 A.M. (New York City time) two Business
Days before the first day of such Interest Period. In the event that
the Administrative Agent is unable to obtain any such quotation as
provided above, it will be deemed that the Eurodollar Rate for such
Interest Period cannot be determined.
In the event that the Board of Governors of the Federal
Reserve System shall impose a Eurodollar Rate Reserve Percentage with
respect to Eurocurrency Liabilities, the Eurodollar Rate for an
Interest Period shall be equal to the amount determined above for such
Interest Period divided by a percentage equal to 100% minus the
Eurodollar Rate Reserve Percentage for such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest
as provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time to
time by the Board of Governors of the Federal Reserve System (or any
successor) for determining the maximum reserve requirement (including,
without limitation, any emergency, supplemental or other marginal
reserve requirement) for a member bank of the Federal Reserve System in
New York City with respect to liabilities or assets consisting of or
including Eurocurrency Liabilities (or with respect to any other
category of liabilities that includes deposits by reference to which
the interest rate on Eurodollar Rate Advances is determined) having a
term equal to such Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Lease Obligations" has the meaning set forth in
Section 5.02(a)(iii).
"Excess Net Cash Proceeds" has the meaning specified in
Section 2.06(b)(i).
"Existing Debt" has the meaning specified in Section 4.01(gg)
hereof.
"Facility" means the Term Facility, the Working Capital
Facility or the Letter of Credit Facility.
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"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the
weighted average of the rates on overnight Federal funds transactions
with members of the Federal Reserve System arranged by Federal funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is a
Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
"First Chicago" has the meaning specified in the recital of
parties to this Agreement.
"Fiscal Year" means a fiscal year of the Borrower and its
Consolidated Subsidiary Parties ending on the last Sunday in December
in any calendar year.
"GAAP" has the meaning specified in Section 1.03.
"Guarantor" means each present and future direct and indirect
Subsidiary of the Borrower, as set forth on Schedule 4.01(b) hereto, as
such Schedule is amended and restated from time to time in accordance
with the provisions hereof.
"Guaranty" has the meaning specified in Section 3.01(k)(viii).
"Hazardous Materials" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other similar
agreements.
"Hedge Bank" means any Lender Party or any of its Affiliates
in its capacity as a party to a Bank Hedge Agreement.
"Indemnified Party" has the meaning specified in Section
8.04(b).
"Information Memorandum" means the information memorandum
dated February 1998 used by the Arranger and the Syndication Agent in
connection with the syndication of the Commitments.
"Initial Extension of Credit" means the earlier to occur of
the initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Bank" has the meaning specified in the
recital of parties to this Agreement.
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"Initial Lenders" has the meaning specified in the recital of
parties to this Agreement.
"Insufficiency" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"Intellectual Property Subsidiary" means a direct
wholly-owned, single-purpose Subsidiary of the Borrower having
organizational documents reasonably acceptable to the Required Term
Lenders.
"Intercompany Note" means a promissory note of a Subsidiary of
the Borrower substantially in the form of Exhibit I.
"Intercreditor Agreement" has the meaning specified in Section
3.01(k) (ix).
"Interest Period" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below. The duration of each such Interest Period shall be
one, three or six months, as the Borrower may, upon notice received by
the Administrative Agent not later than 11:00 A.M. (New York City time)
on the third Business Day prior to the first day of such Interest
Period, select; provided, however, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under a Facility
that ends after any principal repayment installment date for
such Facility unless, after giving effect to such selection,
the aggregate principal amount of Base Rate Advances and of
Eurodollar Rate Advances having Interest Periods that end on
or prior to such principal repayment installment date for such
Facility shall be at least equal to the aggregate principal
amount of Advances under such Facility due and payable on or
prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing
shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur on
the next succeeding Business Day, provided, however, that, if
such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the last
day of such Interest Period shall occur on the next preceding
Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month that
succeeds such initial calendar month by the number of months
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equal to the number of months in such Interest Period, such
Interest Period shall end on the last Business Day of such
succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated and
rulings issued thereunder.
"Investment" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any capital stock or other
ownership or profit interest, warrants, rights, options, obligations or
other securities of such Person, any capital contribution to such
Person or any other investment in such Person, including, without
limitation, any arrangement pursuant to which the investor incurs Debt
of the types referred to in clause (h) or (i) of the definition of
"Debt" in respect of such Person.
"Issuing Bank" means the Initial Issuing Bank and each
Eligible Assignee to which the Letter of Credit Commitment hereunder
has been assigned pursuant to Section 8.07.
"L/C Cash Collateral Account" has the meaning specified in the
Borrower Pledge
Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(c)(ii).
"Lender Party" means any Lender or the Issuing Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 8.07.
"Letter of Credit" has the meaning specified in Section
2.01(c).
"Letter of Credit Advance" means an advance made by the
Issuing Bank or any Working Capital Lender pursuant to Section 2.03(b).
"Letter of Credit Agreement" has the meaning specified in
Section 2.03(a).
"Letter of Credit Commitment" means, with respect to the
Issuing Bank at any time, the amount set forth opposite the Issuing
Bank's name on Schedule I hereto under the caption "Letter of Credit
Commitment" or, if the Issuing Bank has entered into one or more
Assignments and Acceptances, set forth for the Issuing Bank in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as the Issuing Bank's "Letter of Credit Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Letter of Credit Facility" means, at any time, an amount
equal to the lesser of (a) the amount of the Issuing Bank's Letter of
Credit Commitment at such time and (b) $15,000,000, as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"Leverage Ratio" has the meaning specified in Section 5.04(c).
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"Lien" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance
on title to real property.
"Loan Documents" means (a) for purposes of this Agreement and
the Notes and any amendment or modification hereof or thereof and for
all other purposes other than for purposes of the Guaranty and the
Collateral Documents, (i) this Agreement, (ii) the Notes, (iii) the
Guaranty, (iv) the Collateral Documents, (v) each Letter of Credit
Agreement and (vi) the Intercreditor Agreement and (b) for purposes of
the Guaranty and the Collateral Documents, (i) this Agreement, (ii) the
Notes, (iii) the Guaranty, (iv) the Collateral Documents, (v) each
Letter of Credit Agreement, (vi) each Bank Hedge Agreement and (vii)
the Intercreditor Agreement, in each case as amended or otherwise
modified from time to time.
"Loan Parties" means the Borrower and each Guarantor.
"Long Island Sale" means the sale of six operating Applebee's
Restaurants located in Nassau and Suffolk Counties, New York for
approximately $10,300,000 plus a restaurant site which will be under
construction at the time of closing of such sale and for which the
purchasing franchisee will reimburse the Borrower for the Borrower's
out-of-pocket expenses.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower and its Subsidiary
Parties, taken as a whole.
"Material Adverse Effect" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Borrower or the Borrower
and its Subsidiary Parties taken as a whole, (b) the rights and
remedies of the Administrative Agent or any Lender Party under any Loan
Document or (c) the ability of any Loan Party to perform its
Obligations under any Loan Document or Related Document to which it is
or is to be a party.
"Material Debt" means Surviving Debt in a principal amount
greater than $3,000,000.
"ML&Co." has the meaning specified in the recital of parties
to this Agreement.
"Moody's" means Moody's Investors Service, Inc., or any
successor that is a national statistical rating organization.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
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"Multiple Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NationsBank" has the meaning specified in the recital of
parties to this Agreement.
"Net Cash Proceeds" means, with respect to any sale, lease,
transfer or other disposition of any asset, the aggregate amount of
cash received from time to time (whether as initial consideration or
through payment or disposition of deferred consideration) by or on
behalf of such Person in connection with such transaction after
deducting therefrom only (without duplication) (a) reasonable and
customary brokerage commissions, underwriting fees and discounts, legal
fees, finder's fees and other similar fees and commissions and (b) the
amount of taxes payable in connection with or as a result of such
transaction and (c) the amount of any Debt (other than the Advances)
secured by a Lien on such asset that, by the terms of such transaction,
is required to be repaid upon such disposition, in each case to the
extent, but only to the extent, that the amounts so deducted are, at
the time of receipt of such cash, actually paid to a Person that is not
an Affiliate of such Person or any Loan Party or any Affiliate of any
Loan Party and are properly attributable to such transaction or to the
asset that is the subject thereof.
"Note" means a Term Note or a Working Capital Note.
"Notice of Borrowing" has the meaning specified in Section
2.02(a).
"Notice of Issuance" has the meaning specified in Section
2.03(a).
"Notice of Renewal" has the meaning specified in Section
2.01(c).
"Notice of Termination" has the meaning specified in Section
2.01(c).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of the Loan
Parties under the Loan Documents include (a) the obligation to pay
principal, interest, Letter of Credit commissions, charges, expenses,
fees, attorneys' fees and disbursements, indemnities and other amounts
payable by any Loan Party under any Loan Document and (b) the
obligation of any Loan Party to reimburse any amount in respect of any
of the foregoing that any Lender Party, in its sole discretion, may
elect to pay or advance on behalf of such Loan Party.
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"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.01(bb).
"Other Taxes" has the meaning specified in Section 2.12(b).
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Intercompany Debt" means Debt owed to the Borrower
or a wholly-owned Subsidiary of the Borrower by a Subsidiary of the
Borrower, evidenced by an Intercompany Note and pursuant to the terms
of the Intercompany Note subordinated to the Obligations of such
Subsidiary under the Guaranty.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof; (b) Liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's and repairmen's Liens
and other similar Liens arising in the ordinary course of business
securing obligations that are not overdue for a period of more than 120
days or that are contested in good faith, for which a bond in the
required amount has been posted; (c) pledges or deposits to secure
obligations under workers' compensation laws or similar legislation or
to secure public or statutory obligations; and (d) easements, rights of
way and other encumbrances on title to real property that do not render
title to the property encumbered thereby unmarketable or materially
adversely affect the use of such property for its present purposes.
"Permitted Refinancing" with respect to any Debt permitted
under Section 5.02(a)(ii) or 5.02(b)(ii), any Debt extending the
maturity of, or refunding or refinancing, in whole or in part, any such
Debt, provided that (i) that the terms of any such extending, refunding
or refinancing Debt, and of any agreement entered into and of any
instrument issued in connection therewith, are otherwise permitted by
the Loan Documents, (ii) except as provided in clause (iii) below, the
principal amount of such Debt shall not be increased above the
principal amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct and contingent
obligors therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing, (iii) with respect to
any extension, refunding or refinancing of any Facility, the principal
amount of such Debt may be increased above the principal amount thereof
outstanding immediately prior to such extension, refunding or
refinancing but only to the extent that, after giving effect to such
increase, the Borrower is in compliance with Section 5.02(a)(ii) and
Section 5.02(b)(ii), and (iv), if such Debt is to be secured by any
Collateral, the agent or other authorized representative of the lenders
of such Debt shall have executed and delivered the Intercreditor
Agreement in accordance with the terms thereof prior to or simultaneous
with any incurrence of any such Debt.
"Person" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency thereof.
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"Plan" means a Single Employer Plan or a Multiple Employer
Plan.
"Pledged Debt" has the meaning set forth in the Borrower
Pledge Agreement and the Subsidiaries Pledge Agreement, respectively.
"Pledged Shares" has the meaning set forth in the Borrower
Pledge Agreement and the Subsidiaries Pledge Agreement, respectively.
"Preferred Shares" means, with respect to any corporation,
capital stock issued by such corporation that is entitled to a
preference or priority over any other capital stock issued by such
corporation upon any distribution of such corporation's assets, whether
by dividend or upon liquidation.
"Pro Rata Share" of any amount means, with respect to any
Lender under any Facility at any time, the product of such amount times
a fraction the numerator of which is the amount of such Lender's
Commitment under such Facility at such time and the denominator of
which is such Facility at such time.
"Purchase Agreement" has the meaning specified in the
Preliminary Statements.
"Redeemable" means, with respect to any capital stock or other
ownership or profit interest, Debt or other right or Obligation, any
such right or Obligation that (a) the issuer has undertaken to redeem
at a fixed or determinable date or dates, whether by operation of a
sinking fund or otherwise, or upon the occurrence of a condition not
solely within the control of the issuer or (b) is redeemable at the
option of the holder.
"Refinanced Facility" means any Facility that has been
extended, refunded or refinanced pursuant to a Permitted Refinancing.
"Register" has the meaning specified in Section 8.07(d).
"Regulation U" means Regulation U of the Board of Governors of
the Federal Reserve System, as in effect from time to time.
"Related Document" means the Purchase Agreement.
"Required Lenders" means at any time Lenders owed or holding
at least a majority in interest of the sum of (a) the aggregate
principal amount of the Advances outstanding at such time, (b) the
aggregate Available Amount of all Letters of Credit outstanding at such
time and (c) the aggregate Unused Working Capital Commitments at such
time; provided, however, that if any Lender shall be a Defaulting
Lender at such time, there shall be excluded from the determination of
Required Lenders at such time (A) the aggregate principal amount of the
Advances owing to such Lender (in its capacity as a Lender) and
outstanding at such time, (B) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit issued by such
Lender and outstanding at such time and (C) the Unused Working Capital
Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Letter of Credit Advances
owing to the Issuing Bank and the Available Amount of each Letter of
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Credit shall be considered to be owed to the Working Capital Lenders
ratably in accordance with their respective Working Capital
Commitments.
"Required Term Lenders" means at any time Lenders owed or
holding at least a majority of the sum of the aggregate principal
amount of the Term Advances outstanding at such time; provided,
however, that if any Lender shall be a Defaulting Lender at such time,
there shall be excluded from the determination of Required Term Lenders
at such time the aggregate principal amount of the Term Advances owing
to such Lender (in its capacity as a Term Lender) and outstanding at
such time.
"Required Working Capital Lenders" means at any time Lenders
owed or holding at least a majority in interest of the sum of (a) the
aggregate principal amount of the Working Capital Advances and Letter
of Credit Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time and
(c) the aggregate Unused Working Capital Commitments at such time;
provided, however, that if any Lender shall be a Defaulting Lender at
such time, there shall be excluded from the determination of Required
Working Capital Lenders at such time (A) the aggregate principal amount
of the Working Capital Advances and Letter of Credit Advances owing to
such Lender (in its capacity as a Working Capital Lender) and
outstanding at such time, (B) such Lender's Pro Rata Share of the
aggregate Available Amount of all Letters of Credit issued by such
Lender and outstanding at such time and (C) the Unused Working Capital
Commitment of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Letter of Credit Advances
owing to the Issuing Bank and the Available Amount of each Letter of
Credit shall be considered to be owed to the Working Capital Lenders
ratably in accordance with their respective Working Capital
Commitments.
"Responsible Officer" means any of the chief executive
officer, chief financial officer and general counsel of any Loan Party
or any of its Subsidiary Parties.
"Rights Agreement" means the Rights Agreement dated as of
September 7, 1994 between Applebee's International, Inc. and Chemical
Bank, as Rights Agent, as amended through the date hereof.
"S&P" means Standard & Poor's Ratings Group, a division of
McGraw-Hill, Inc., or any successor that is a national statistical
rating organization.
"Secured Parties" means the Collateral Agent, the
Administrative Agent, the Lenders, the Issuing Banks, any other Lender
Parties, the Hedge Banks and the other Persons the Obligations owing to
which are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.
"Single Employer Plan" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so maintained
and in respect of which any Loan Party or any ERISA Affiliate could
have liability under Section 4069 of ERISA in the event such plan has
been or were to be terminated.
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"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property
of such Person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such Person,
(b) the present fair salable value of the assets of such Person is not
less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and
matured, (c) such Person does not intend to, and does not believe that
it will, incur debts or liabilities beyond such Person's ability to pay
such debts and liabilities as they mature and (d) such Person is not
engaged in business or a transaction, and is not about to engage in
business or a transaction, for which such Person's property would
constitute an unreasonably small capital. The amount of contingent
liabilities at any time shall be computed as the amount that, in the
light of all the facts and circumstances existing at such time,
represents the amount that can reasonably be expected to become an
actual or matured liability.
"Special Required Term Lenders" means at any time Lenders owed
or holding more than 33% of the sum of the aggregate principal amount
of the Term Advances outstanding at such time; provided, however, that
if any Lender shall be a Defaulting Lender at such time, there shall be
excluded from the determination of Special Required Term Lenders at
such time the aggregate principal amount of the Term Advances owing to
such Lender (in its capacity as a Term Lender) and outstanding at such
time.
"Specified Leases" means those certain restaurant leases to be
entered into at the closing of the Acquisition by Apple South, as
landlord, and the Borrower or one of its Subsidiaries, as tenant.
"Standby Letter of Credit" means any Letter of Credit issued
under the Letter of Credit Facility, other than a Trade Letter of
Credit.
"Stock Plan" means (i) the Applebee's International, Inc. 1995
Equity Incentive Plan, as amended through the date hereof, (ii) the
Applebee's International, Inc. 1989 Stock Option Plan, as amended
through the date hereof and (iii) the Applebee's International, Inc.
Employee Stock Purchase Plan adopted effective as of January 1, 1997.
"Subordinated Debt" means any Debt of the Borrower that is
subordinated to the Obligations of the Borrower under the Loan
Documents on, and that otherwise contains, terms and conditions
satisfactory to the Required Lenders.
"Subsidiary" of any Person means (a) any corporation,
partnership, joint venture, limited liability company, trust or estate
of which (or in which) more than 50% of (i) the issued and outstanding
capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (ii) the interest in the capital or profits of such
partnership, joint venture or limited liability company, (iii) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one
or more of its other Subsidiaries or by one or more of such Person's
other Subsidiaries and (b) with respect to the Borrower only, the Texas
Subsidiary and the Dutch Subsidiary, respectively, from and after the
time that the Texas Subsidiary and the Dutch Subsidiary, as the case
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may be, are required to execute and deliver the Subsidiaries Pledge
Agreement and the Guaranty pursuant to Section 5.03(q).
"Subsidiary Parties" means (i) all direct or indirect
Subsidiaries of the Borrower, (ii) the Texas Subsidiary and (iii) the
Dutch Subsidiary.
"Subsidiaries Pledge Agreement" has the meaning specified in
Section 3.01(k)(vii).
"Surviving Debt" has the meaning specified in Section 3.01(c).
"Syndication Agent" has the meaning specified in the recital
of parties to this Agreement.
"Tax Certificate" has the meaning specified in Section
5.03(o).
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advance" has the meaning specified in Section 2.01(a).
"Term Applicable Margin" means with respect to the Term
Advances 2.25% per annum for Eurodollar Rate Advances and 1.25 of 1%
per annum for Base Rate Advances.
"Term Borrowing" means a borrowing consisting of simultaneous
Term Advances of the same Type made by the Term Lenders.
"Term Commitment" means, with respect to any Term Lender at
any time, the amount set forth opposite such Lender's name on Schedule
I hereto under the caption "Term Commitment" or, if such Lender has
entered into one or more Assignments and Acceptances, set forth for
such Lender in the Register maintained by the Administrative Agent
pursuant to Section 8.07(d) as such Lender's "Term Commitment", as such
amount may be reduced at or prior to such time pursuant to Section
2.05.
"Term Facility" means, at any time, the aggregate amount of
the Term Lenders' Term Commitments at such time.
"Term Facility Default" means any Term Facility Event of
Default or any event that would constitute a Term Facility Event of
Default but for the requirement that notice be given or time elapse or
both.
"Term Facility Event of Default" has the meaning specified in
Section 6.01.
"Term Lender" means any Lender that has a Term Commitment.
"Term Note" means a promissory note of the Borrower payable to
the order of any Term Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term Advance made by such Lender.
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"Term Facility Termination Date" means the earlier of March
31, 2006 and the date of termination in whole of the Term Commitments
pursuant to Section 2.05 or 6.01.
"Texas Subsidiary" means Applebee's Beverage, Inc., a Texas
corporation.
"Trade Letter of Credit" means any Letter of Credit that is
issued under the Letter of Credit Facility for the benefit of a
supplier of inventory to the Borrower or any of its Subsidiary Parties
to effect payment for such inventory, the conditions to drawing under
which include the presentation to the Issuing Bank of negotiable bills
of lading, invoices and related documents sufficient, in the judgment
of the Issuing Bank, to create a valid and perfected lien on or
security interest in such inventory, bills of lading, invoices and
related documents in favor of the Issuing Bank.
"Type" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"Unused Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, (a) such Lender's Working Capital
Commitment at such time minus (b) the sum of (i) the aggregate
principal amount of all Working Capital Advances and Letter of Credit
Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time, plus (ii) such Lender's Pro Rata Share of (A)
the aggregate Available Amount of all Letters of Credit outstanding at
such time and (B) the aggregate principal amount of all Letter of
Credit Advances made by the Issuing Bank pursuant to Section 2.03(b)
and outstanding at such time.
"Voting Stock" means capital stock issued by a corporation, or
equivalent interests in any other Person, the holders of which are
ordinarily, in the absence of contingencies, entitled to vote for the
election of directors (or persons performing similar functions) of such
Person, even if the right so to vote has been suspended by the
happening of such a contingency.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(b).
"Working Capital Applicable Margin" means with respect to the
Working Capital Advances (i) until the first anniversary of the Closing
Date, 1.375% per annum for Eurodollar Rate Advances and .375 of 1% per
annum for Base Rate Advances and (ii) thereafter, (A) at all times that
the Borrower has a senior unsecured long term debt rating of less than
BBB- from S&P or Baa3 from Moody's, a percentage per annum determined
by reference to the Leverage Ratio as set forth in Table A below and
(B) at all times that the Borrower has a senior unsecured long term
debt rating of BBB- or greater from S&P and Baa3 or greater from
Moody's, a percentage per annum determined by reference to the senior
unsecured long term debt ratings as set forth in Table B:
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<PAGE>
TABLE A
<TABLE>
<CAPTION>
Eurodollar Rate
Base Rate Advances Advances
Percentage Percentage
------------------ ---------------
<S> <C> <C>
Level I
less than 1.5:1 0.125 1.125
Level II
1.5:1 or greater,
but less than 2:1 0.375 1.375
Level III
2:1 or greater 0.625 1.625
</TABLE>
<TABLE>
<CAPTION>
TABLE B
Eurodollar Rate
Base Rate Advances Advances
Percentage Percentage
------------------ ---------------
<S> <C> <C>
Level I
BBB+/ Baa1 0 0.50
or higher
Level II 0 0.625
BBB/ Baa2
Level III
BBB-/ Baa3 0 0.875
</TABLE>
The Working Capital Applicable Margin for each Advance shall be
determined by reference to the ratio or rating, as the case may be, in
effect from time to time; provided, however, that (A) no change in the
Working Capital Applicable Margin determined by reference to Table A
shall be effective until three Business Days after the date on which
the Administrative Agent receives financial statements pursuant to
Section 5.03(b) or (c) and a certificate of the chief financial officer
of the Borrower demonstrating such ratio and (B) if the Borrower has
not submitted to the Administrative Agent the information described in
clause (A) of this proviso as and when required under Section 5.03(b)
or (c), as the case may be, the Working Capital Applicable Margin shall
be at Level III for so long as such information has not been received
by the Administrative Agent; and provided, further that if the Working
Capital Applicable Margin is determined by reference to Table B, (a) if
neither S&P nor Moody's shall have in effect a senior unsecured long
term debt rating, the Working Capital Applicable Margin will be set in
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<PAGE>
accordance with clause (ii)(A) of this definition; (b) if the ratings
established by S&P and Moody's shall fall within different levels, the
Working Capital Applicable Margin shall be based upon the lower rating;
and (c) if any rating established by S&P or Moody's shall be changed,
such change shall be effective as of the date on which such change is
first announced publicly by the rating agency making such change.
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the
Working Capital Lenders.
"Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, the amount set forth opposite such
Lender's name on Schedule I hereto under the caption "Working Capital
Commitment" or, if such Lender has entered into one or more Assignments
and Acceptances, set forth for such Lender in the Register maintained
by the Administrative Agent pursuant to Section 8.07(d) as such
Lender's "Working Capital Commitment", as such amount may be reduced at
or prior to such time pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate
amount of the Working Capital Lenders' Working Capital Commitments at
such time.
"Working Capital Facility Default" means any Working Capital
Facility Event of Default or any event that would constitute a Working
Capital Facility Event of Default but for the requirement that notice
be given or time elapse or both.
"Working Capital Facility Event of Default" has the meaning
specified in Section 6.01.
"Working Capital Lender" means any Lender that has a Working
Capital Commitment.
"Working Capital Lender Party" means any Working Capital
Lender or the Issuing Bank.
"Working Capital Note" means a promissory note of the Borrower
payable to the order of any Working Capital Lender, in substantially
the form of Exhibit A-2 hereto, evidencing the aggregate indebtedness
of the Borrower to such Lender resulting from the Working Capital
Advances made by such Lender.
"Working Capital Facility Termination Date" means the earlier
of March 31, 2003 and the date of termination in whole of the Letter of
Credit Commitments and the Working Capital Commitments pursuant to
Section 2.05 or 6.01.
SECTION 1.02. Computation of Time Periods. In this Agreement
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 words "to" and "until"
each mean "to but excluding".
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistently applied (except to the extent any
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variation in application is required underGAAP) and consistent with those
applied in the preparation of the financial statements referred to in Section
4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances. (a) The Term Advances. Each Term
Lender severally agrees, on the terms and conditions hereinafter set forth, to
make a single advance (a "Term Advance") to the Borrower on March 30, 1998 in an
amount not to exceed such Lender's Term Commitment at such time. The Term
Borrowing shall consist of Term Advances made simultaneously by the Term Lenders
ratably according to their Term Commitments. Amounts borrowed under this Section
2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Working Capital Advances. Each Working Capital Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Working Capital Advance") to the Borrower from time to time on
any Business Day during the period from the date hereof until the Working
Capital Facility Termination Date in an amount for each such Advance not to
exceed such Lender's Unused Working Capital Commitment at such time. Each
Working Capital Borrowing shall be in an aggregate amount of $3,000,000 or an
integral multiple of $1,000,000 in excess thereof (other than a Borrowing the
proceeds of which shall be used solely to repay or prepay in full outstanding
Letter of Credit Advances) and shall consist of Working Capital Advances made
simultaneously by the Working Capital Lenders ratably according to their Working
Capital Commitments. Within the limits of each Working Capital Lender's Unused
Working Capital Commitment in effect from time to time, the Borrower may borrow
under this Section 2.01(b), prepay pursuant to Section 2.06(a) and reborrow
under this Section 2.01(b).
(c) Letters of Credit. The Issuing Bank agrees, on the terms
and conditions hereinafter set forth, to issue letters of credit (the "Letters
of Credit") for the account of the Borrower from time to time on any Business
Day during the period from the date hereof until 60 days before the Working
Capital Facility Termination Date (i) in an aggregate Available Amount for all
Letters of Credit not to exceed at any time the Issuing Bank's Letter of Credit
Commitment at such time and (ii) in an Available Amount for each such Letter of
Credit not to exceed the Unused Working Capital Commitments of the Working
Capital Lenders at such time. No Letter of Credit shall have an expiration date
(including all rights of the Borrower or the beneficiary to require renewal)
later than the earlier of 60 days before the Working Capital Facility
Termination Date and (A) in the case of a Standby Letter of Credit, one year
after the date of issuance thereof, but may by its terms be renewable annually
upon notice (a "Notice of Renewal") given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit but in any event at least three Business Days prior to the
date of the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless such
Issuing Bank has notified the Borrower (with a copy to the Administrative Agent)
on or prior to the date for notice of termination set forth in such Letter of
Credit but in any event at least 30 Business Days prior to the date of automatic
renewal of its election not to renew such Standby Letter of Credit (a "Notice of
Termination")) and (B) in the case of a Trade Letter of Credit, 60 days after
the date of issuance thereof; provided that the terms of each Standby Letter
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of Credit that is automatically renewable annually shall (x) require the Issuing
Bank that issued such Standby Letter of Credit to give the beneficiary named in
such Standby Letter of Credit notice of any Notice of Termination, (y) permit
such beneficiary, upon receipt of such notice, to draw under such Standby Letter
of Credit prior to the date such Standby Letter of Credit otherwise would have
been automatically renewed and (z) not permit the expiration date (after giving
effect to any renewal) of such Standby Letter of Credit in any event to be
extended to a date later than 60 days before the Working Capital Facility
Termination Date. If either a Notice of Renewal is not given by the Borrower or
a Notice of Termination is given by the Issuing Bank pursuant to the immediately
preceding sentence, such Standby Letter of Credit shall expire on the date on
which it otherwise would have been automatically renewed; provided, however,
that even in the absence of receipt of a Notice of Renewal the Issuing Bank may
in its discretion, unless instructed to the contrary by the Administrative Agent
or the Borrower, deem that a Notice of Renewal had been timely delivered and in
such case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(c), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(b) and request the issuance of additional Letters of Credit under this
Section 2.01(c).
SECTION 2.02. Making the Advances. (a) Except as otherwise
provided in Section 2.02(b) or 2.03, each Borrowing shall be made on notice,
given not later than 10:00 A.M. (Chicago time) on the third Business Day prior
to the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the Business Day of the proposed Borrowing in the
case of a Borrowing consisting of Base Rate Advances, by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by telex or telecopier. Each such notice of a Borrowing (including,
without limitation any such notice given under Section 2.02(b)) (each, a "Notice
of Borrowing") shall be by telephone, confirmed immediately in writing, or telex
or telecopier, in substantially the form of Exhibit B hereto, specifying therein
the requested (i) date of such Borrowing, (ii) Facility under which such
Borrowing is to be made, (iii) Type of Advances comprising such Borrowing, (iv)
aggregate amount of such Borrowing and (v) in the case of a Borrowing consisting
of Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Appropriate Lender shall, before 11:00 A.M. (Chicago time) on the date of such
Borrowing, make available for the account of its Applicable Lending Office to
the Administrative Agent at the Administrative Agent's Account, in same day
funds, such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
transferring such funds to the Borrower's Account; provided, however, that, in
the case of any Working Capital Borrowing, the Administrative Agent shall first
make a portion of such funds equal to the aggregate principal amount of any
Letter of Credit Advances made by the Issuing Bank and by any other Working
Capital Lender and outstanding on the date of such Working Capital Borrowing,
plus interest accrued and unpaid thereon to and as of such date, available to
the Issuing Bank and such other Working Capital Lenders for repayment of such
Letter of Credit Advances.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrowings comprising the Initial Extension of Credit
shall be made on notice, given not later than 9:00 A.M. (Chicago time) on the
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Business Day of the Initial Extension of Credit by the Borrower to the
Administrative Agent, which shall give to each Appropriate Lender prompt notice
thereof by telex or telecopier, (ii) the Borrower may not select Eurodollar Rate
Advances for the initial Borrowing hereunder and for the period from the date
hereof to May 1, 1998 (or such earlier date as shall be specified in its sole
discretion by the Administrative Agent in a written notice to the Lenders) or
for any Borrowing if the aggregate amount of such Borrowing is less than
$5,000,000 or if the obligation of the Appropriate Lenders to make Eurodollar
Rate Advances shall then be suspended pursuant to Section 2.09 or Section 2.10
and (iii) the Term Advances may not be outstanding as part of more than 10
separate Borrowings and the Working Capital Advances made on any date may not be
outstanding as part of more than 10 separate Borrowings.
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any Borrowing that the related Notice of
Borrowing specifies is to be comprised of Eurodollar Rate Advances, the Borrower
shall indemnify each Appropriate Lender against any loss, cost or expense
incurred by such Lender as a result of any failure to fulfill on or before the
date specified in such Notice of Borrowing for such Borrowing the applicable
conditions set forth in Article III, including, without limitation, any loss
(including loss of anticipated profits), cost or expense incurred by reason of
the liquidation or reemployment of deposits or other funds acquired by such
Lender to fund the Advance to be made by such Lender as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received notice
from an Appropriate Lender prior to the date of any Borrowing under a Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's ratable portion of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) or (b) of this Section 2.02 and the
Administrative Agent may, in reliance upon such assumption, make available to
the Borrower on such date a corresponding amount. If and to the extent that such
Lender shall not have so made such ratable portion available to the
Administrative Agent, such Lender and the Borrower severally agree to repay or
pay to the Administrative Agent forthwith on demand such corresponding amount
and to pay interest thereon, for each day from the date such amount is made
available to the Borrower until the date such amount is repaid or paid to the
Administrative Agent, at (i) in the case of the Borrower, the interest rate
applicable at such time under Section 2.07 to Advances comprising such Borrowing
and (ii) in the case of such Lender, the Federal Funds Rate. If such Lender
shall pay to the Administrative Agent such corresponding amount, such amount so
paid shall constitute such Lender's Advance as part of such Borrowing for all
purposes.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such Borrowing,
but no Lender shall be responsible for the failure of any other Lender to make
the Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (Chicago time) on the fifth
Business Day prior to the date of the proposed issuance of such Letter of
Credit, by the Borrower to the Issuing Bank, which shall give to the
Administrative Agent and each Working Capital Lender prompt notice thereof by
telex or telecopier. Each such
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notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be by
telephone, confirmed immediately in writing, or telex or telecopier, specifying
therein the requested (A) date of such issuance (which shall be a Business Day),
(B) Available Amount of such Letter of Credit, (C) expiration date of such
Letter of Credit, (D) name and address of the beneficiary of such Letter of
Credit and (E) form of such Letter of Credit, and shall be accompanied by such
application and agreement for letter of credit as the Issuing Bank may specify
to the Borrower for use in connection with such requested Letter of Credit (a
"Letter of Credit Agreement"). If (x) the requested form of such Letter of
Credit is acceptable to the Issuing Bank in its sole discretion and (y) it has
not received notice of objection to such issuance from the Required Working
Capital Lenders, the Issuing Bank will, upon fulfillment of the applicable
conditions set forth in Article III, make such Letter of Credit available to the
Borrower at its office referred to in Section 8.02 or as otherwise agreed with
the Borrower in connection with such issuance. In the event and to the extent
that the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Drawing and Reimbursement. The payment by the Issuing Bank
of a draft drawn under any Letter of Credit shall constitute for all purposes of
this Agreement the making by the Issuing Bank of a Letter of Credit Advance,
which shall be a Base Rate Advance, in the amount of such draft. Upon written
demand by the Issuing Bank, with a copy of such demand to the Administrative
Agent, each Working Capital Lender shall purchase from the Issuing Bank, and the
Issuing Bank shall sell and assign to each such Working Capital Lender, such
Lender's Pro Rata Share of such outstanding Letter of Credit Advance as of the
date of such purchase, by making available for the account of its Applicable
Lending Office to the Administrative Agent for the account of the Issuing Bank,
by deposit to the Administrative Agent's Account, in same day funds, an amount
equal to the portion of the outstanding principal amount of such Letter of
Credit Advance to be purchased by such Lender. Promptly after receipt thereof,
the Administrative Agent shall transfer such funds to the Issuing Bank. The
Borrower hereby agrees to each such sale and assignment. Each Working Capital
Lender agrees to purchase its Pro Rata Share of an outstanding Letter of Credit
Advance on (i) the Business Day on which demand therefor is made by the Issuing
Bank, provided notice of such demand is given not later than 11:00 A.M. (Chicago
time) on such Business Day or (ii) the first Business Day next succeeding such
demand if notice of such demand is given after such time. Upon any such
assignment by the Issuing Bank to any other Working Capital Lender of a portion
of a Letter of Credit Advance, the Issuing Bank represents and warrants to such
other Lender that the Issuing Bank is the legal and beneficial owner of such
interest being assigned by it, free and clear of any liens, but makes no other
representation or warranty and assumes no responsibility with respect to such
Letter of Credit Advance, the Loan Documents or any Loan Party. If and to the
extent that any Working Capital Lender shall not have so made the amount of such
Letter of Credit Advance available to the Administrative Agent, such Working
Capital Lender agrees to pay to the Administrative Agent forthwith on demand
such amount together with interest thereon, for each day from the date of demand
by the Issuing Bank until the date such amount is paid to the Administrative
Agent, at (x) the Federal Funds Rate for the first three days and (y)
thereafter, at the Base Rate, for its account or the account of the Issuing
Bank, as applicable. If such Lender shall pay to the Administrative Agent such
amount for the account of the Issuing Bank on any Business Day, such amount so
paid in respect of principal shall constitute a Letter of Credit Advance made by
such Lender on such Business Day for purposes of this Agreement, and the
outstanding principal amount of the Letter of Credit Advance made by the Issuing
Bank shall be reduced by such amount on such Business Day. The obligation of
each Working Capital Lender to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance pursuant to this Section 2.03(b) shall be unconditional
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and irrevocable, and shall not be affected by (i) any failure of the Borrower to
repay any Letter of Credit Advance at the time required pursuant to Section
2.04(c) or (ii) any other event or circumstance, including, without limitation,
any of the circumstances enumerated in Section 2.04(c)(ii).
(c) Failure to Make Letter of Credit Advances. The failure of
any Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(b) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term Lenders the aggregate outstanding principal amount of the Term Advances on
the following dates in the amounts indicated (which amounts shall be reduced as
a result of the application of prepayments in accordance with the order of
priority set forth in Section 2.06):
Date Amount
---- ------
September 30, 1998 $625,000
March 31, 1999 $625,000
September 30, 1999 $625,000
March 31, 2000 $625,000
September 30, 2000 $625,000
March 31, 2001 $625,000
September 30, 2001 $625,000
March 31, 2002 $625,000
September 30, 2002 $625,000
March 31, 2003 $625,000
September 30, 2003 $625,000
March 31, 2004 $625,000
September 30, 2004 $625,000
March 31, 2005 $625,000
September 31, 2005 $58,125,000
March 31, 2006 $58,125,000
provided, however, that the final principal installment shall be repaid on the
Term Facility Termination Date and in any event shall be in an amount equal to
the aggregate principal amount of the Term Advances outstanding on such date.
(b) Working Capital Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Working Capital Lenders on
the Working Capital Facility Termination Date the aggregate outstanding
principal amount of the Working Capital Advances then outstanding.
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(c) Letter of Credit Advances. (i) The Borrower shall repay to
the Administrative Agent for the account of the Issuing Bank and each other
Working Capital Lender that has made a Letter of Credit Advance on the earlier
of the first Business Day after the date on which such Advance was made and the
Working Capital Facility Termination Date the outstanding principal amount of
each Letter of Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances:
(A) any lack of validity or enforceability of any Loan
Document, any Letter of Credit Agreement, any Letter of Credit or any
other agreement or instrument relating thereto (all of the foregoing
being, collectively, the "L/C Related Documents");
(B) any change in the time, manner or place of payment of, or
in any other term of, all or any of the Obligations of the Borrower in
respect of any L/C Related Document or any other amendment or waiver of
or any consent to departure from all or any of the L/C Related
Documents;
(C) the existence of any claim, set-off, defense or other
right that the Borrower may have at any time against any beneficiary or
any transferee of a Letter of Credit (or any Persons for whom any such
beneficiary or any such transferee may be acting), the Issuing Bank or
any other Person, whether in connection with the transactions
contemplated by the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a
Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(E) payment by the Issuing Bank under a Letter of Credit
against presentation of a draft or certificate that does not strictly
comply with the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Collateral
or other collateral, or any release or amendment or waiver of or
consent to departure from the Guaranty or any other guarantee, for all
or any of the Obligations of the Borrower in respect of the L/C Related
Documents; or
(G) any other circumstance or happening whatsoever, whether or
not similar to any of the foregoing, including, without limitation, any
other circumstance that might otherwise constitute a defense available
to, or a discharge of, the Borrower or a guarantor.
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Letter of Credit Facility and the Unused Working Capital Commitments;
provided, however, that each partial reduction of such a Facility (i) shall be
in an aggregate amount of $3,000,000 or an integral multiple of $1,000,000
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in excess thereof and (ii) shall be made ratably among the Appropriate Lenders
in accordance with their Commitments with respect to such Facility.
(b) Mandatory. (i) On the date of the Term Borrowing, after
giving effect to such Term Borrowing, and from time to time thereafter upon each
repayment or prepayment of the Term Advances, the aggregate Term Commitments of
the Term Lenders shall be automatically and permanently reduced, on a pro rata
basis, by an amount equal to the amount by which the aggregate Term Commitments
immediately prior to such reduction exceed the aggregate unpaid principal amount
of the Term Advances then outstanding.
(ii) The Working Capital Facility shall be automatically and
permanently reduced on a pro rata basis on each date on which prepayment thereof
is required to be made pursuant to Section 2.06(b)(i), (b)(ii) or (b)(vii) in an
amount equal to the amount required to be so prepaid; provided that each such
reduction of the Working Capital Facility shall be made ratably among the
Working Capital Lenders in accordance with their Working Capital Commitments;
provided further, however, that notwithstanding the foregoing and Section
2.06(b)(vii), in no event shall the Working Capital Facility be reduced,
pursuant to this Section 2.05(b)(ii), to less than $75,000,000 (unless a Working
Capital Facility Event of Default has occurred, in which case the limitation set
forth in this proviso shall not apply).
(iii) The Letter of Credit Facility shall be permanently
reduced from time to time on the date of each reduction in the Working Capital
Facility by the amount, if any, by which the amount of the Letter of Credit
Facility exceeds the Working Capital Facility after giving effect to such
reduction of the Working Capital Facility.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may,
upon (x) at least one Business Day's notice in the case of Working Capital
Advances that are Base Rate Advances and three Business Days' notice in the case
of Working Capital Advances that are Eurodollar Rate Advances or (y) at least 15
days but not more than 30 days prior to the proposed prepayment date of any Term
Advances, in each case to the Administrative Agent stating the proposed date and
aggregate principal amount of the prepayment, and if such notice is given the
Borrower shall, prepay the outstanding aggregate principal amount of the Working
Capital Advances or Term Advances, as the case may be, comprising, to the
maximum extent possible, part of the same Borrowing in whole or ratably in part,
together with (i) accrued interest to the date of such prepayment on the
aggregate principal amount prepaid and (ii) in the case of any such prepayment
prior to March 31, 2001 of any Term Advances, a premium of 3% (if such
prepayment is made prior to March 31, 1999), 2% (if such prepayment is made on
or after March 31, 1999 but prior to March 31, 2000) and 1% (if such prepayment
is made on or after March 31, 2000 but prior to March 31, 2001) of the aggregate
principal amount so prepaid; provided, however, that (x) each partial prepayment
shall be in an aggregate principal amount of $3,000,000 or an integral multiple
of $1,000,000 in excess thereof and (y) if any prepayment of a Eurodollar Rate
Advance is made on a date other than the last day of an Interest Period for such
Advance the Borrower shall also pay any amounts owing pursuant to Section
8.04(c). Each such prepayment of any Term Advances shall be applied to the
installments thereof ratably to each principal installment of the Term Facility
under Section 2.04(a).
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(b) Mandatory. (i) The Borrower shall prepay an aggregate
principal amount of the Advances comprising, to the maximum extent possible,
part of the same Borrowings from the Net Cash Proceeds received by any Loan
Party or any of its Subsidiary Parties in any Fiscal Year in excess of
$3,000,000 (such excess Net Cash Proceeds being the "Excess Net Cash Proceeds")
from the sale, lease, transfer or other disposition of any assets of any Loan
Party or any of its Subsidiary Parties (other than any sale, lease, transfer or
other disposition of assets pursuant to clauses (A) or (B) of Section 5.02(a)(v)
or 5.02(b)(iv) or from the Long Island Sale) equal to the amount of such Net
Cash Proceeds as follows:
(A) At such time as no Event of Default has occurred and is
continuing, the Loan Parties shall be entitled to reinvest (whether by
way of a Capital Expenditure or an Investment) such Excess Net Cash
Proceeds within 364 days of receipt thereof in connection with the
purchase of restaurants operated or to be operated by the Borrower or
its Subsidiary Parties and with respect to which the Borrower or its
Subsidiary Parties has the United States franchising rights therefor,
or franchised or to be franchised by the Borrower or its Subsidiary
Parties. If an Event of Default has occurred and is continuing, the
Borrower shall prepay the Advances to the extent of such Excess Net
Cash Proceeds.
(B) At such time as the aggregate amount of Excess Net Cash
Proceeds received by any Loan Party and any of its Subsidiary Parties
in any Fiscal Year exceed $5,000,000, the Borrower shall either (x)
prepay the Advances or (y) deposit such Excess Net Cash Proceeds in an
escrow account established with the Administrative Agent and upon terms
and conditions reasonably satisfactory to the Administrative Agent
(including with respect to reasonable administrative and other fees in
connection with the opening and administration of the escrow account)
and the Required Lenders. Such amounts on deposit in the escrow account
shall be released from such escrow account at the direction of the
Borrower to make reinvestments of Excess Net Cash Proceeds in
accordance with clause (A). Amounts on deposit in the escrow account
shall be available to be invested in Cash Equivalents, at the
Borrower's direction; provided that the Administrative Agent shall not
be liable for any losses as a result of such investments and the
Borrower shall, upon realization of any such loss, deposit additional
amounts to the escrow account to compensate in full for such loss. Upon
the occurrence of any Event of Default, the Administrative Agent shall
withdraw all amounts on deposit in the escrow account and, on behalf of
the Borrower, prepay the Advances.
(C) If any such Excess Net Cash Proceeds are not timely
reinvested in accordance with clause (A), on the 365th day after
receipt thereof (or the next Business Day, if such day is not a
Business Day), the Administrative Agent shall withdraw such Excess Net
Cash Proceeds and, on behalf of the Borrower, prepay the Advances.
(D) Each prepayment of Advances pursuant to this Section
2.06(b)(i) shall be applied ratably based on the proportion that the
aggregate amount of the Working Capital Facility and the Term Facility,
respectively, at such time bears to the aggregate amount of all
Commitments at such time to each of the Working Capital Facility and
the Term Facility until such time as the Working Capital Facility is
reduced to $75,000,000, and thereafter 100% to the Term Facility;
provided, that notwithstanding the foregoing to the contrary, if a
Working Capital Facility Event of Default has occurred, such
prepayments shall be applied ratably to each Facility.
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(ii) The Borrower shall, on each Business Day, prepay an
aggregate principal amount of the Working Capital Advances comprising part of
the same Borrowings and the Letter of Credit Advances equal to the amount by
which (A) the sum of the aggregate principal amount of (x) the Working Capital
Advances and (y) the Letter of Credit Advances then outstanding plus the
aggregate Available Amount of all Letters of Credit then outstanding exceeds (B)
the Working Capital Facility on such Business Day.
(iii) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in such Account to equal the
amount by which the aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Letter of Credit Facility on such Business Day.
(iv) Prepayments of the Working Capital Facility made pursuant
to clause (i) or (ii) above or clause (vii) below shall be first applied to
prepay Letter of Credit Advances then outstanding until such Advances are paid
in full, second applied to prepay Working Capital Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full and
third deposited in the L/C Cash Collateral Account to cash collateralize 100% of
the Available Amount of the Letters of Credit then outstanding. Upon the drawing
of any Letter of Credit for which funds are on deposit in the L/C Cash
Collateral Account, such funds shall be applied to reimburse the Issuing Bank or
the Working Capital Lenders, as applicable.
(v) Prepayments of the Term Facility made pursuant to clause
(i) above and clause (vii) below shall be applied ratably to each principal
installment of the Term Facility under Section 2.04(a).
(vi) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(vii) Notwithstanding the foregoing to the contrary, in the
event that the Borrower is required to make any mandatory prepayment of the Term
Advances pursuant to Section 2.06(b)(i) (a "Waivable Mandatory Prepayment"):
(A) not less than three Business Days prior to the date (the
"Required Prepayment Date") on which the Borrower is required to make
such Waivable Mandatory Prepayment, the Borrower shall notify the
Administrative Agent of the amount of such Waivable Mandatory
Prepayment, and the Administrative Agent will promptly thereafter
notify each Term Lender of the amount of such Term Lender's Pro Rata
Share of such Waivable Mandatory Prepayment and such Term Lender's
option to refuse to accept the prepayment of such amount;
(B) each Term Lender may exercise such option by giving
written notice to the Borrower of its election to do so on or before
the first Business Day prior to the Required Prepayment Date; and
(C) on the Required Prepayment Date, the Borrower shall pay to
the Administrative Agent the amount of Waivable Mandatory Prepayment.
The amount of such Waivable Mandatory Prepayment shall be applied as follows:
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(X) in an amount equal to that portion of the Waivable
Mandatory Prepayment payable to those Term Lenders that have not
exercised such option to refuse prepayment of the Term Advances of such
Term Lenders (which prepayments shall be applied to the scheduled
installments of principal of the Term Advances in accordance with
Section 2.06(b)(v)); and
(Y) in an amount equal to that portion of the Waivable
Mandatory Prepayment otherwise payable to those Term Lenders that have
exercised such option to refuse prepayment of first the Working Capital
Advances and Letter of Credit Advances under the Working Capital
Facility (provided that such prepayment of the Working Capital Facility
shall be made, if no Working Capital Facility Event of Default has
occurred, only to the extent that the Working Capital Facility would
not be reduced to less than $75,000,000), which prepayments shall be
applied in accordance with Section 2.06(b)(iv), and second to prepay
the Term Advances of those Term Lenders who exercised such option
(which prepayments shall be applied to the scheduled installments of
principal of the Term Advances in accordance with Section 2.06(b)(v).
If any Term Lender shall not give a notice of such election, such Term
Lender shall be deemed to have accepted such prepayment.
(viii) In the event that a Change of Control (other than a
Change of Control arising pursuant to clause (iii) of the definition thereof)
shall occur:
(A) not more than two Business Days after such occurrence the
Borrower shall notify the Administrative Agent of such occurrence, and
the Administrative Agent will promptly thereafter notify each Term
Lender thereof and of such Term Lender's option to require the Borrower
to mandatorily prepay all of the Term Advances of such Term Lender on
the day that is the 45th day following such occurrence (the "Change of
Control Mandatory Prepayment Date");
(B) each Term Lender may exercise such option by giving
written notice to the Administrative Agent of its election to do so on
or before the 30th day after such notice is given by the Administrative
Agent to such Term Lender;
(C) the Administrative Agent shall promptly (but no later than
one Business Day after its receipt of notices referred to in (B) above)
notify the Borrower of the aggregate amount of the Term Advances that
Term Lenders have elected to have prepaid; and
(D) on the Change of Control Mandatory Prepayment Date, the
Borrower shall pay to the Administrative Agent for the ratable benefit
of each electing Term Lender such aggregate amount plus an amount equal
to 1% of the outstanding principal amount of the Term Advances so
prepaid, and each electing Term Lender shall apply the amount received
in respect of principal to the prepayment of the Term Advances owing to
it.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower
shall pay interest on the unpaid principal amount of each Advance owing to each
Lender from the date of such Advance until such principal amount shall be paid
in full, at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is
a Base Rate Advance, a rate per annum equal at all times to the sum of
(A) the Base Rate in effect from
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time to time plus (B) the Working Capital Applicable Margin (in the
case of Working Capital Advances and Letter of Credit Advances) or the
Term Applicable Margin (in the case of Term Advances) in effect from
time to time, payable in arrears quarterly on the last day of each
March, June, September and December during such periods and on the date
such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of (A)
the Eurodollar Rate for such Interest Period for such Advance plus (B)
the Working Capital Applicable Margin (in the case of Working Capital
Advances) or the Term Applicable Margin (in the case of Term Advances)
in effect from time to time, payable in arrears on the last day of such
Interest Period and, if such Interest Period has a duration of more
than three months, on each day that occurs during such Interest Period
every three months from the first day of such Interest Period and on
the date such Eurodollar Rate Advance shall be Converted or paid in
full.
(b) Default Interest. Upon the occurrence and during the
continuance of an Event of Default the Required Term Lenders or the Required
Working Capital Lenders, as applicable, may, at their option, by notice to the
Borrower require the Borrower to, and the Borrower shall, pay interest on (i)
the unpaid principal amount of each Advance owing to each Lender under the
Facility with respect to which such Default occurred, payable in arrears on the
dates referred to in clause (a)(i) or (a)(ii) above and on demand, at a rate per
annum equal at all times to 2% per annum above the rate per annum required to be
paid on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other amount
payable hereunder that is not paid when due, from the date such amount shall be
due until such amount shall be paid in full, payable in arrears on the date such
amount shall be paid in full and on demand, at a rate per annum equal at all
times to 2% per annum above the rate per annum required to be paid, in the case
of interest, on the Type of Advance on which such interest has accrued pursuant
to clause (a)(i) or (a)(ii) above, and, in all other cases, on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Rate. Promptly after receipt of a
Notice of Borrowing pursuant to Section 2.02(a), the Administrative Agent shall
give notice to the Borrower and each Appropriate Lender of the applicable
interest rate determined by the Administrative Agent for purposes of clause
(a)(i) or (ii).
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay
to the Administrative Agent for the account of the Working Capital Lenders a
commitment fee, from the date of the Initial Extension of Credit in the case of
each Initial Lender and from the effective date specified in the Assignment and
Acceptance pursuant to which it became a Lender in the case of each other Lender
until the Working Capital Facility Termination Date, payable in arrears on the
date of the initial Borrowing hereunder, thereafter quarterly on the last
Business Day of each March, June, September and December, commencing June 30,
1998, and on the Working Capital Facility Termination Date, at the then
applicable Commitment Fee Rate on the average daily Unused Working Capital
Commitment of such Lender; provided, however, that any commitment fee accrued
with respect to any of the Commitments of a Defaulting Lender during the period
prior to the time such Lender became a Defaulting Lender and unpaid at such time
shall not be payable by the Borrower so long as such Lender shall be a
Defaulting Lender except to the extent that such commitment fee shall
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otherwise have been due and payable by the Borrower prior to such time; and
provided further that no commitment fee shall accrue on any of the Commitments
of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to
the Administrative Agent for the account of each Working Capital Lender a
commission, payable in arrears quarterly on the last Business Day of each March,
June, September, and December, commencing June 30, 1998, and on the earliest to
occur of the full drawing expiration, termination or cancellation of any such
Letter of Credit and on the Working Capital Facility Termination Date, on such
Lender's Pro Rata Share of the average daily aggregate Available Amount during
such quarter of all Letters of Credit outstanding from time to time at the rate
equal to the Working Capital Applicable Margin for Eurodollar Rate Advances at
such time less .125 of 1% per annum.
(ii) The Borrower shall pay to the Issuing Bank, for its own
account, a fronting fee of .25 of 1% of the face amount of each Letter of Credit
issued or renewed by such Issuing Bank, on the date of issuance or renewal
thereof, and such other documentary and processing fees and charges in
connection with the issuance or administration of each Letter of Credit as are
set forth in the Issuing Bank's standard schedule for such fees and charges as
in effect from time to time.
(c) Administrative Agent's Fees. The Borrower shall pay to
the Administrative Agent for its own account the fees set forth in that certain
letter agreement dated March 6, 1998 or as otherwise agreed between the Borrower
and the Administrative Agent from time to time.
SECTION 2.09. Conversion of Advances. (a) Optional. The
Borrower may on any Business Day, upon notice given to the Administrative Agent
not later than 10:00 A.M. (Chicago time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Sections 2.07
and 2.10, Convert all or any portion of the Advances of one Type comprising the
same Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $3,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
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Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance.
(iii) Upon the occurrence and during the continuance of any
Event of Default, (x) each Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, Convert into a Base Rate
Advance and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i)
the introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any central
bank or other governmental authority (whether or not having the force of law),
there shall be any increase in the cost to any Lender Party of agreeing to make
or of making, funding or maintaining Eurodollar Rate Advances or of agreeing to
issue or of issuing or maintaining Letters of Credit or of agreeing to make or
of making or maintaining Letter of Credit Advances (excluding for purposes of
this Section 2.10 any such increased costs resulting from (i) Taxes or Other
Taxes (as to which Section 2.12 shall govern) and (ii) changes in the basis of
taxation of overall net income or overall gross income by the United States or
by the foreign jurisdiction or state under the laws of which such Lender Party
is organized or has its Applicable Lending Office or any political subdivision
thereof), then the Borrower shall from time to time, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), pay to the
Administrative Agent for the account of such Lender Party additional amounts
sufficient to compensate such Lender Party for such increased cost. A
certificate as to the amount of such increased cost, submitted to the Borrower
by such Lender Party, shall be conclusive and binding for all purposes, absent
manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or would
affect the amount of capital required or expected to be maintained by such
Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend or to issue Letters of Credit hereunder and
other commitments of such type or the issuance or maintenance of the Letters of
Credit (or similar contingent obligations), then, upon demand by such Lender
Party (with a copy of such demand to the Administrative Agent), the Borrower
shall pay to the Administrative Agent for the account of such Lender Party, from
time to time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend or to issue
Letters of Credit hereunder or to the issuance or maintenance of any Letters of
Credit. A certificate as to such amounts submitted to the Borrower by such
Lender Party shall be conclusive and binding for all purposes, absent manifest
error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, Lenders owed at least a majority of the then aggregate unpaid
principal amount thereof notify the Administrative Agent that the Eurodollar
Rate for any Interest Period for such Advances will not adequately reflect the
cost to such Lenders of making, funding or maintaining their Eurodollar Rate
Advances for such Interest Period, the Administrative Agent shall forthwith so
notify the Borrower and the Appropriate Lenders, whereupon (i) each such
Eurodollar Rate Advance under any Facility will automatically, on the last day
of the then existing Interest Period therefor, Convert into a Base Rate Advance
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and (ii) the obligation of the Appropriate Lenders to make, or to Convert
Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist.
SECTION 2.11. Payments and Computations. (a) The Borrower
shall make each payment hereunder and under the Notes, irrespective of any right
of counterclaim, deduction or set-off (except as otherwise provided in Section
2.15), not later than 11:00 A.M. (Chicago time) on the day when due in U.S.
dollars to the Administrative Agent at the Administrative Agent's Account in
same day funds. The Administrative Agent will promptly thereafter cause like
funds to be distributed (i) if such payment by the Borrower is in respect of
principal, interest, commitment fees or any other Obligation then payable
hereunder and under the Notes to more than one Lender Party, to such Lender
Parties for the account of their respective Applicable Lending Offices ratably
in accordance with the amounts of such respective Obligations then payable to
such Lender Parties and (ii) if such payment by the Borrower is in respect of
any Obligation then payable hereunder to one Lender Party, to such Lender Party
for the account of its Applicable Lending Office, in each case to be applied in
accordance with the terms of this Agreement. Upon its acceptance of an
Assignment and Acceptance and recording of the information contained therein in
the Register pursuant to Section 8.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for application
to the Obligations under the Loan Documents under circumstances for which the
Loan Documents do not specify the Advances or the Facility to which, or the
manner in which, such funds are to be applied, the Administrative Agent may, but
shall not be obligated to, elect to distribute such funds to each Lender Party
ratably in accordance with such Lender Party's proportionate share of the
principal amount of all outstanding Advances and the Available Amount of all
Letters of Credit then outstanding, in repayment or prepayment of such of the
outstanding Advances or other Obligations owed to such Lender Party, and for
application to such principal installments, as the Administrative Agent shall
direct.
(c) The Borrower hereby authorizes each Lender Party, if and
to the extent payment owed to such Lender Party is not made when due hereunder
or, in the case of a Lender, under the Note held by such Lender, to charge from
time to time against any or all of the Borrower's accounts with such Lender
Party any amount so due.
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(d) All computations of interest based on the Base Rate shall
be made by the Administrative Agent on the basis of a year of 365 or 366 days,
as the case may be, and all computations of interest based on the Eurodollar
Rate and all fees and Letter of Credit commissions shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(e) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(f) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due to any Lender
Party hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.12. Taxes. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.11,
free and clear of and without deduction for any and all present or future taxes,
levies, imposts, deductions, charges or withholdings, and all liabilities with
respect thereto, excluding, in the case of each Lender Party and the
Administrative Agent, taxes that are imposed on its overall net income by the
United States, net income taxes that are imposed by the United States that would
not have been imposed but for the Lender Party's or Administrative Agent's (as
the case may be) status as a resident of the United States or permanent
establishment or fixed place of business in the United States through which such
Lender Party or the Administrative Agent (as the case may be) engages in a trade
or business (other than any connection arising solely from such Lender Party or
the Administrative Agent (as the case may be) having executed, delivered or
performed its obligations, or having received a payment, or having enforced its
rights under this Agreement or any of the other Loan Documents) and taxes that
are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction under the laws of which such
Lender Party or the Administrative Agent (as the case may be) is organized or
any political subdivision thereof and, in the case of each Lender Party, taxes
that are imposed on its overall net income (and franchise taxes imposed in lieu
thereof) by the state or foreign jurisdiction of such Lender Party's Applicable
Lending Office or any political subdivision thereof (all such non-excluded
taxes, levies, imposts, deductions, charges, withholdings and liabilities in
respect of payments hereunder or under the Notes being hereinafter referred to
as "Taxes"). If the Borrower shall be required by law to deduct any Taxes from
or in respect of any sum payable hereunder or under any Note to any Lender Party
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or the Administrative Agent, (i) the sum payable shall be increased as may be
necessary so that after making all required deductions (including deductions
applicable to additional sums payable under this Section 2.12) such Lender Party
or the Administrative Agent (as the case may be) receives 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 taxation authority or other authority in accordance
with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performing under, or otherwise with respect to,
this Agreement or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.12, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses) arising
therefrom or with respect thereto. This indemnification shall be made within 30
days from the date such Lender Party or the Administrative Agent (as the case
may be) makes written demand therefor.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 8.02, the original or a certified copy of a receipt evidencing such
payment. In the case of any payment hereunder or under the Notes by or on behalf
of the Borrower through an account or branch outside the United States or by or
on behalf of the Borrower by a payor that is not a United States person, if the
Borrower determines that no Taxes are payable in respect thereof, the Borrower
shall furnish, or shall cause such payor to furnish, to the Administrative
Agent, at such address, an opinion of counsel acceptable to the Administrative
Agent stating that such payment is exempt from Taxes. For purposes of this
subsection (d) and subsection (e), the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender or
Initial Issuing Bank, as the case may be, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender Party in the case of each other
Lender Party, and from time to time thereafter as requested in writing by the
Borrower (but only so long thereafter as such Lender Party remains lawfully able
to do so), provide each of the Administrative Agent and the Borrower with two
original Internal Revenue Service forms 1001 or 4224, as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, or (in the
case of Lender Party that is claiming exemption from United States withholding
tax under Section 871(h) or 881(c) of the Internal Revenue Code with respect to
payments of "portfolio interest") two accurate and complete signed original
Forms W-8 or any successor form prescribed by the Internal Revenue Service (and,
if such Lender Party delivers Forms W-8, two signed certificates certifying that
such Lender Party is not (i) a "bank" for purposes of Section 881(c) of the
Internal Revenue Code, (ii) is not a 10-percent shareholder (within the meaning
of Section 871(h)(3)(B) of the Internal Revenue Code) of the Borrower, (iii) is
not a controlled foreign corporation related to the Borrower (within the meaning
of Section 864(d)(4) of the Internal Revenue Code) and (iv) is not a conduit
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entity participating in a conduit financing arrangement (as defined in Treasury
Regulation Section 1.881-3), certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes. If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicates a
United States interest withholding tax rate in excess of zero, withholding tax
at such rate shall be considered excluded from Taxes unless and until such
Lender Party provides the appropriate form certifying that a lesser rate
applies, whereupon withholding tax at such lesser rate only shall be considered
excluded from Taxes for periods governed by such form; provided, however, that,
if at the date of the Assignment and Acceptance pursuant to which a Lender Party
becomes a party to this Agreement, the Lender Party assignor was entitled to
payments under subsection (a) in respect of United States withholding tax with
respect to interest paid at such date, then, to such extent, the term Taxes
shall include (in addition to withholding taxes that may be imposed in the
future or other amounts otherwise includable in Taxes) United States withholding
tax, if any, applicable with respect to the Lender Party assignee on such date.
If any form or document referred to in this subsection (e) requires the
disclosure of information, other than information necessary to compute the tax
payable and information required on the date hereof by Internal Revenue Service
form 1001, 4224 or W-8 (and the related certificate described above), that the
Lender Party reasonably considers to be confidential, the Lender Party shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with a form evidencing an exemption from or
reduced rate of United States withholding tax described in subsection (e) above
(other than if such failure is due to a change in law occurring after the date
on which a form originally was required to be provided or if such form otherwise
is not required due to an exception contained in subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) with respect to Taxes imposed by the United States by reason of such
failure; provided, however, that should a Lender Party become subject to Taxes
because of its failure to deliver a form required hereunder, the Borrower shall
take such steps as such Lender Party shall reasonably request to assist such
Lender Party to recover such Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be otherwise disadvantageous to such Lender Party.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party
under any Facility (such Facility, the "Relevant Facility") shall obtain at any
time any payment (whether voluntary, involuntary, through the exercise of any
right of set-off, or otherwise) (a) on account of Obligations due and payable to
such Lender Party hereunder in respect of the Relevant Facility and under the
Notes in respect of the Relevant Facility at such time in excess of its ratable
share (according to the proportion of (i) the amount of such Obligations due and
payable to such Lender Party in respect of the Relevant Facility at such time to
(ii) the aggregate amount of the Obligations due and payable to all Lender
Parties under the Relevant Facility hereunder and under the Notes in respect of
the Relevant Facility at such time) of payments on account of the Obligations
due and payable to all Lender Parties hereunder in respect of the Relevant
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Facility and under the Notes in respect of the Relevant Facility at such time
obtained by all the Lender Parties under the Relevant Facility at such time or
(b) on account of Obligations owing (but not due and payable) to such Lender
Party hereunder in respect of the Relevant Facility and under the Notes in
respect of the Relevant Facility at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations owing to such
Lender Party at such time to (ii) the aggregate amount of the Obligations owing
(but not due and payable) to all Lender Parties hereunder in respect of the
Relevant Facility and under the Notes in respect of the Relevant Facility at
such time) of payments on account of the Obligations owing (but not due and
payable) to all Lender Parties hereunder in respect of the Relevant Facility and
under the Notes in respect of the Relevant Facility at such time obtained by all
of the Lender Parties under the Relevant Facility at such time, such Lender
Party shall forthwith purchase from the other Lender Parties under the Relevant
Facility such participations in the Obligations due and payable or owing to
them, as the case may be, as shall be necessary to cause such purchasing Lender
Party to share the excess payment ratably with each of them; provided, however,
that if a Lender Party is a Lender Party under more than one Facility, any
payment subject to this Section shall be allocated ratably to each such Facility
(according to the proportion of (i) the aggregate amount of Commitments under
such Facility at the time of determination to (ii) the aggregate amount of the
Commitments under all Facilities at the time of determination); provided,
further, that if all or any portion of such excess payment is thereafter
recovered from such purchasing Lender Party, such purchase from each other
Lender Party shall be rescinded and such other Lender Party shall repay to the
purchasing Lender Party the purchase price to the extent of such Lender Party's
ratable share (according to the proportion of (i) the purchase price paid to
such Lender Party to (ii) the aggregate purchase price paid to all Lender
Parties) of such recovery together with an amount equal to such Lender Party's
ratable share (according to the proportion of (i) the amount of such other
Lender Party's required repayment to (ii) the total amount so recovered from the
purchasing Lender Party) of any interest or other amount paid or payable by the
purchasing Lender Party in respect of the total amount so recovered. The
Borrower agrees that any Lender Party so purchasing a participation from another
Lender Party pursuant to this Section 2.13 may, to the fullest extent permitted
by law, exercise all its rights of payment (including the right of set-off) with
respect to such participation as fully as if such Lender Party were the direct
creditor of the Borrower in the amount of such participation
SECTION 2.14. Use of Proceeds. The proceeds of the Advances
and issuances of Letters of Credit shall be available (and the Borrower agrees
that it shall use such proceeds and Letters of Credit) solely to finance, in
part, the Acquisition, refinance certain existing debt, finance the Buyback, to
pay transaction fees and expenses and to provide working capital and for general
corporate purposes from time to time for the Borrower and its Subsidiary
Parties.
SECTION 2.15. Defaulting Lenders. (a) In the event that, at
any one time, (i) any Lender Party shall be a Defaulting Lender, (ii) such
Defaulting Lender shall owe a Defaulted Advance to the Borrower and (iii) the
Borrower shall be required to make any payment hereunder or under any other Loan
Document to or for the account of such Defaulting Lender, then the Borrower may,
so long as no Event of Default under the Facility with respect to which such
Lender has a Commitment shall be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. The Administrative Agent shall advise the Borrower if any Lender
becomes a Defaulting Lender on the first Business Day after such occurrence and
the amount of the related Defaulted Advance. In the event that, on any date,
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the Borrower shall so set off and otherwise apply its obligation to make any
such payment against the obligation of such Defaulting Lender to make any such
Defaulted Advance on or prior to such date, the amount so set off and otherwise
applied by the Borrower shall constitute for all purposes of this Agreement and
the other Loan Documents an Advance by such Defaulting Lender made on the date
under the Facility pursuant to which such Defaulted Advance was originally
required to have been made pursuant to Section 2.01. Such Advance shall be a
Base Rate Advance and shall be considered, for all purposes of this Agreement,
to comprise part of the Borrowing in connection with which such Defaulted
Advance was originally required to have been made pursuant to Section 2.01, even
if the other Advances comprising such Borrowing shall be Eurodollar Rate
Advances on the date such Advance is deemed to be made pursuant to this
subsection (a). The Borrower shall notify the Administrative Agent at any time
the Borrower exercises its right of set-off pursuant to this subsection (a) and
shall set forth in such notice (A) the name of the Defaulting Lender and the
Defaulted Advance required to be made by such Defaulting Lender and (B) the
amount set off and otherwise applied in respect of such Defaulted Advance
pursuant to this subsection (a). Any portion of such payment otherwise required
to be made by the Borrower to or for the account of such Defaulting Lender that
is paid by the Borrower, after giving effect to the amount set off and otherwise
applied by the Borrower pursuant to this subsection (a), shall be applied by the
Administrative Agent as specified in subsection (b) or (c) of this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted
Amount to the Administrative Agent or any of the other Lender Parties and (iii)
the Borrower shall make any payment hereunder or under any other Loan Document
to the Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Lender
Parties and to the fullest extent permitted by applicable law, apply at such
time the amount so paid by the Borrower to or for the account of such Defaulting
Lender to the payment of each such Defaulted Amount to the extent required to
pay such Defaulted Amount. In the event that the Administrative Agent shall so
apply any such amount to the payment of any such Defaulted Amount on any date,
the amount so applied by the Administrative Agent shall constitute for all
purposes of this Agreement and the other Loan Documents payment, to such extent,
of such Defaulted Amount on such date. Any such amount so applied by the
Administrative Agent shall be retained by the Administrative Agent or
distributed by the Administrative Agent to such other Lender Parties, ratably in
accordance with the respective portions of such Defaulted Amounts payable at
such time to the Administrative Agent and such other Lender Parties and, if the
amount of such payment made by the Borrower shall at such time be insufficient
to pay all Defaulted Amounts owing at such time to the Administrative Agent and
the other Lender Parties, in the following order of priority:
(i) first, to the Administrative Agent for any Defaulted
Amount then owing to the Administrative Agent; and
(ii) second, to any other Lender Parties for any Defaulted
Amounts then owing to such other Lender Parties, ratably in accordance
with such respective Defaulted Amounts then owing to such other Lender
Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
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Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party
shall be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a
Defaulted Advance or a Defaulted Amount and (iii) the Borrower, the
Administrative Agent or any other Lender Party shall be required to pay or
distribute any amount hereunder or under any other Loan Document to or for the
account of such Defaulting Lender, then the Borrower or such other Lender Party
shall pay such amount to the Administrative Agent to be held by the
Administrative Agent, to the fullest extent permitted by applicable law, in
escrow or the Administrative Agent shall, to the fullest extent permitted by
applicable law, hold in escrow such amount otherwise held by it. Any funds held
by the Administrative Agent in escrow under this subsection (c) shall be
deposited by the Administrative Agent in an account with First Chicago, in the
name and under the control of the Administrative Agent, but subject to the
provisions of this subsection (c). The terms applicable to such account,
including the rate of interest payable with respect to the credit balance of
such account from time to time, shall be First Chicago's standard terms
applicable to escrow accounts maintained with it. Any interest credited to such
account from time to time shall be held by the Administrative Agent in escrow
under, and applied by the Administrative Agent from time to time in accordance
with the provisions of, this subsection (c). The Administrative Agent shall, to
the fullest extent permitted by applicable law, apply all funds so held in
escrow from time to time to the extent necessary to make any Advances required
to be made by such Defaulting Lender and to pay any amount payable by such
Defaulting Lender hereunder and under the other Loan Documents to the
Administrative Agent or any other Lender Party, as and when such Advances or
amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Administrative Agent for any amount then due
and payable by such Defaulting Lender to the Administrative Agent
hereunder;
(ii) second, to any other Lender Parties for any amount then
due and payable by such Defaulting Lender to such other Lender Parties
hereunder, ratably in accordance with such respective amounts then due
and payable to such other Lender Parties; and
(iii) third, to the Borrower for any Advance then required to
be made by such Defaulting Lender pursuant to a Commitment of such
Defaulting Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under
this Section 2.15 are in addition to other rights and remedies that the Borrower
may have against such Defaulting Lender with respect to any Defaulted Advance
and that the Administrative Agent or any Lender Party may have against such
Defaulting Lender with respect to any Defaulted Amount.
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ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. Conditions Precedent to Initial Extension of
Credit. The obligation of each Lender to make an Advance or of the Issuing Bank
to issue a Letter of Credit on the occasion of the Initial Extension of Credit
hereunder is subject to the satisfaction of the following conditions precedent
before or concurrently with the Initial Extension of Credit:
(a) The Acquisition shall have been consummated in compliance
with all applicable laws, except for such non-compliance with respect
to liquor and operating licenses in respect of the Acquired Assets as
could not reasonably be expected to have a Material Adverse Effect. The
final terms and conditions of the Acquisition and the Buyback,
including, without limitation, all legal and tax aspects thereof, shall
be (i) in all material respects as described in the Information
Memorandum and the information and materials delivered to the Lender
Parties in connection therewith and (ii) otherwise satisfactory to the
Lender Parties.
(b) The Lender Parties shall be satisfied with the corporate
and legal structure and capitalization of each Loan Party, including
the terms and conditions of the charter, bylaws and each class of
capital stock of each Loan Party and of each agreement or instrument
relating to such structure or capitalization, including each
stockholders', voting trust or other similar agreement or instrument
relating thereto.
(c) The Lender Parties shall be satisfied that all Existing
Debt, other than the Debt identified on Schedule 3.01(c) (the
"Surviving Debt"), has been prepaid, redeemed or defeased in full or
otherwise satisfied and extinguished and that all such Surviving Debt
shall be on terms and conditions satisfactory to the Lender Parties.
(d) Before giving effect to the Acquisition and the other
transactions contemplated by this Agreement, there shall have occurred
no material adverse change in the business, condition (financial or
otherwise), operations, performance, properties or prospects of the
Borrower and its Subsidiary Parties, taken as a whole, or in the
Acquired Assets since December 28, 1997.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party pending or threatened
before any court, governmental agency or arbitrator that (i) could
reasonably be expected to have (both prior to and after giving effect
to the Acquisition) a Material Adverse Effect or a material adverse
effect on the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Acquired Assets taken as a
whole or (ii) purports to adversely affect the legality, validity or
enforceability of the Acquisition, this Agreement, any Note, any other
Loan Document, any Related Document or the consummation of the
transactions contemplated hereby.
(f) All governmental and third party consents and approvals
necessary in connection with the transactions contemplated hereby and
the use of proceeds hereof shall have been obtained (without the
imposition of any conditions that are not reasonably acceptable to the
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Initial Lenders) and shall remain in effect; all applicable waiting
periods shall have expired without any material adverse action being
taken by any competent authority that restrains, prevents or imposes
materially adverse conditions upon the Acquisition, the Buyback or the
transactions contemplated thereby in the reasonable judgment of the
Initial Lenders; and no law or regulation shall be applicable that
restrains, prevents or imposes materially adverse conditions upon the
Acquisition, the Buyback or the transactions contemplated hereby
(g) The Borrower shall have paid all accrued fees and expenses
of the Administrative Agent, the Collateral Agent, the Arranger, the
Syndication Agent and the Lender Parties (including the accrued
reasonable fees and expenses of counsel to the Administrative Agent,
the Collateral Agent, the Arranger, the Syndication Agent and local
counsel to the Administrative Agent, the Collateral Agent, the Arranger
and the Syndication Agent).
(h) The Lenders shall be satisfied that (i) the Borrower and
its Subsidiary Parties will be able to meet their obligations under all
employee and retiree welfare plans, (ii) the employee benefit plans of
the Borrower and its ERISA Affiliates are, in all material respects,
funded in accordance with the minimum statutory requirements, (iii) no
"reportable event" (as defined in ERISA, but excluding events for which
reporting has been waived) has occurred as to any such employee benefit
plan and (iv) no termination of, or withdrawal from, any such employee
benefit plan has occurred or is contemplated that could reasonably be
expected to result in a material liability.
(i) The Lenders shall be satisfied with the amount, types and
terms and conditions of all insurance maintained by the Borrower and
its Subsidiary Parties.
(j) All accrued and unpaid Obligations of the Borrower in
respect of that certain Note Purchase Agreement dated as of June 1,
1994 and the notes issued thereunder shall have been paid in full, and
the Administrative Agent shall have received a letter of the note
purchasers thereunder as to such payment, in form and substance
reasonably satisfactory to the Administrative Agent.
(k) The Administrative Agent shall have received on or before
the day of the Initial Extension of Credit the following, each dated
such day (unless otherwise specified), in form and substance
satisfactory to the Administrative Agent and the Arranger (unless
otherwise specified) and (except for the Notes) in sufficient copies
for each Lender Party:
(i) The Notes payable to the order of the Lenders.
(ii) Certified copies of the resolutions of the Board
of Directors of the Borrower and each other Loan Party
approving the Acquisition, the Buyback, this Agreement, the
Notes, each other Loan Document and each Related Document to
which it is or is to be a party, and of all documents
evidencing other necessary corporate action and governmental
and other third party approvals and consents, if any, with
respect to the Acquisition, the Buyback, this Agreement, the
Notes, each other Loan Document and each Related Document.
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(iii) A copy of a certificate of the Secretary of
State of the jurisdiction of its incorporation, dated
reasonably near the date of the Initial Extension of Credit,
listing the charter of the Borrower and each other Loan Party
and each amendment thereto on file in his office and
certifying that (A) such amendments are the only amendments to
the Borrower's or such other Loan Party's charter on file in
his office, (B) the Borrower and each other Loan Party have
paid all franchise taxes to the date of such certificate and
(C) the Borrower and each other Loan Party are duly
incorporated and in good standing under the laws of the State
of the jurisdiction of its incorporation.
(iv) Copies, certified by a Responsible Officer of
the Borrower as being true and complete, of (A) each Related
Document, duly executed by the parties thereto and in form and
substance satisfactory to the Lender Parties and (B) each
Stock Plan and the Rights Agreement.
,
(v) A certificate of the Borrower and each other Loan
Party, signed on behalf of the Borrower and such other Loan
Party by its President or a Vice President and its Secretary
or any Assistant Secretary, dated the date of the Initial
Extension of Credit (the statements made in which certificate
shall be true on and as of the date of the Initial Extension
of Credit), certifying as to (A) the absence of any amendments
to the charter of the Borrower or such other Loan Party since
the date of the Secretary of State's certificate referred to
in Section 3.01(k)(iii), (B) a true and correct copy of the
bylaws of the Borrower and such other Loan Party as in effect
on the date of the Initial Extension of Credit, (C) the due
incorporation and good standing of the Borrower and such other
Loan Party as a corporation organized under the laws of the
its jurisdiction of incorporation, and the absence of any
proceeding for the dissolution or liquidation of the Borrower
or such other Loan Party, (D) the truth of the representations
and warranties contained in the Loan Documents as though made
on and as of the date of the Initial Extension of Credit and
(E) the absence of any event occurring and continuing, or
resulting from the Initial Extension of Credit, that
constitutes a Default.
(vi) A certificate of the Secretary or an Assistant
Secretary of the Borrower and each other Loan Party certifying
the names and true signatures of the officers of the Borrower
and such other Loan Party authorized to sign this Agreement,
the Notes, each other Loan Document and each Related Document
to which they are or are to be parties and the other documents
to be delivered hereunder and thereunder.
(vii) A pledge agreement in substantially the form of
Exhibit D-1 (as amended, supplemented or otherwise modified
from time to time in accordance with its terms, the "Borrower
Pledge Agreement"), duly executed by the Borrower and a pledge
agreement in substantially the form of Exhibit D-2 (as
amended, supplemented or otherwise modified from time to time
in accordance with its terms, the "Subsidiaries Pledge
Agreement"), duly executed by each other Loan Party, together
with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated
stock powers executed in blank and instruments
evidencing the Pledged Debt referred to therein
indorsed in blank,
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(B) acknowledgment copies of proper
financing statements, duly filed on or before the day
of the Initial Extension of Credit under the Uniform
Commercial Code of all jurisdictions that the
Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Borrower
Pledge Agreement, covering the Collateral described
in the Borrower Pledge Agreement or the Subsidiaries
Pledge Agreement, covering the Collateral described
in the Subsidiaries Pledge Agreement, as the case may
be,
(C) completed requests for information,
dated on or before the date of the Initial Extension
of Credit, listing the financing statements referred
to in clause (B) above and all other effective
financing statements filed in the jurisdictions
referred to in clause (B) above that name the
Borrower or any other Loan Party as debtor, together
with copies of such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the
Borrower Pledge Agreement and the Subsidiaries Pledge
Agreement, as the case may be, that the Collateral
Agent may deem necessary or desirable in order to
perfect and protect the Liens created thereby,
(E) evidence that all other action that the
Collateral Agent may deem necessary or desirable in
order to perfect and protect the first priority liens
and security interests created under the Borrower
Pledge Agreement and the Subsidiaries Pledge
Agreement, as the case may be, has been taken.
(viii) A guaranty in substantially the form of
Exhibit E (as amended, supplemented or otherwise modified from
time to time in accordance with its terms, the "Guaranty"),
duly executed by each Guarantor.
(ix) An intercreditor agreement in substantially the
form of Exhibit F, as amended, supplemented or otherwise
modified from time to time in accordance with its terms, the
"Intercreditor Agreement"), duly executed by the
Administrative Agent on behalf of the Working Capital Lenders
and on behalf of the Term Lenders.
(x) Such financial, business and other information
regarding each Loan Party and its Subsidiary Parties as the
Lender Parties shall have requested, including, without
limitation, Consolidated pro forma financial statements as to
the Borrower and its Subsidiary Parties and forecasts prepared
by management of the Borrower, in form and substance
satisfactory to the Lender Parties, of Consolidated balance
sheets, income statements and cash flow statements on an
annual basis for each Fiscal Year of the Borrower, commencing
Fiscal Year 1998, and for each subsequent Fiscal Year of the
Borrower until the Term Facility Termination Date.
(xi) A certificate, in form and substance
satisfactory to the Lender Parties, attesting to the Solvency
of the Borrower, individually and taken as a whole together
with its Subsidiary Parties , immediately before and
immediately after giving effect to the Acquisition and the
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other transactions contemplated hereby, from its chief
financial officer
(xii) A favorable opinion of Blackwell Sanders
Matheny Weary & Lombardi LLP, counsel for the Borrower and the
other Loan Parties, in substantially the form of Exhibit G-1
hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xii) A favorable opinion of Shearman & Sterling,
special New York counsel to the Arranger, in substantially the
form of Exhibit G-2 hereto and as to such other matters as any
Lender Party through the Administrative Agent may reasonably
request.
SECTION 3.02. Conditions Precedent to Each Borrowing and
Issuance. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Working Capital
Lender pursuant to Section 2.03(b)) on the occasion of each Borrowing (including
the Initial Extension of Credit), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit, shall be subject to the further conditions precedent that on the date of
such Borrowing or issuance or renewal (a) the following statements shall be true
(and each of the giving of the applicable Notice of Borrowing, Notice of
Issuance or Notice of Renewal and the acceptance by the Borrower of the proceeds
of such Borrowing or of such Letter of Credit or the renewal of such Letter of
Credit shall constitute a representation and warranty by the Borrower that both
on the date of such notice and on the date of such Borrowing, issuance or
renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing, issuance or renewal and to the application of
the proceeds therefrom, as though made on and as of such date other
than any such representations or warranties that, by their terms, refer
to a specific date other than the date of such Borrowing or issuance or
renewal, in which case as of such specific date; and
(ii) no event has occurred and is continuing, or would result
from such Borrowing, issuance or renewal or from the application of the
proceeds therefrom, that constitutes a Default; and
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Appropriate Lender through the Administrative Agent
may reasonably request.
SECTION 3.03. Determinations Under Section 3.01. For purposes
of determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and if the Initial Extension of Credit consists of a Borrowing, such Lender
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Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower.
The Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its incorporation, (ii) is duly qualified and in good
standing as a foreign corporation in each other jurisdiction in which
it owns or leases property or in which the conduct of its business
requires it to so qualify except where the failure to so qualify could
not reasonably be expected to have a Material Adverse Effect and (iii)
has all requisite corporate power and authority (including, without
limitation, all governmental licenses, permits and other approvals) to
own or lease and operate its properties and to carry on its business as
now conducted and as proposed to be conducted, except where the failure
to do so could not reasonably be expected to have a Material Adverse
Effect.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of all Subsidiaries of each Loan Party, showing as of the
date hereof (as to each such Subsidiary) the jurisdiction of its
incorporation, the number of shares of each class of capital stock
authorized, and the number outstanding, on the date hereof and the
percentage of the outstanding shares of each such class owned (directly
or indirectly) by such Loan Party and the number of shares covered by
all outstanding options, warrants, rights of conversion or purchase and
similar rights at the date hereof. All of the outstanding capital stock
of all of such Subsidiaries has been validly issued, is fully paid and
non-assessable and is owned by such Loan Party or one or more of its
Subsidiaries free and clear of all Liens, except those created under
the Loan Documents.
(c) The execution, delivery and performance by each Loan Party
of this Agreement, the Notes, each other Loan Document and each Related
Document to which it is or is to be a party, and the consummation of
the Acquisition and the other transactions contemplated hereby, are
within such Loan Party's corporate powers, have been duly authorized by
all necessary corporate action, and do not (i) contravene such Loan
Party's charter or bylaws, (ii) violate any law (including, without
limitation, the Securities Exchange Act of 1934 and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970), rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction or decree, (iii) conflict with or
result in the breach of, or constitute a default under, any contract,
loan agreement, indenture, mortgage, deed of trust, lease or other
instrument binding on or affecting any Loan Party or any of its
properties or (iv) except for the Liens created under the Loan
Documents, result in or require the creation or imposition of any Lien
upon or with respect to any of the properties of any Loan Party. No
Loan Party is in violation of any such law, rule, regulation, order,
writ, judgment, injunction or decree or in breach of any such contract
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loan agreement, indenture, mortgage, deed of trust, lease or other
instrument, the violation or breach of which could reasonably be
expected to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory body
or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of this
Agreement, the Notes, any other Loan Document or any Related Document
to which it is or is to be a party, or for the consummation of the
Acquisition or the other transactions contemplated hereby, (ii) the
grant by any Loan Party of the Liens granted by it pursuant to the
Collateral Documents, (iii) the perfection or maintenance of the Liens
created by the Collateral Documents (including the first priority
nature thereof) or (iv) the exercise by the Administrative Agent or any
Lender Party of its rights under the Loan Documents or the remedies in
respect of the Collateral pursuant to the Collateral Documents, except
for the authorizations, approvals, actions, notices and filings listed
on Schedule 4.01(d), all of which have been duly obtained, taken, given
or made and are in full force and effect, and except with respect to
liquor and other operational licenses with respect to the Acquired
Assets that could not reasonably be expected to have a material adverse
effect on the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Acquired Assets taken as a
whole and, after consummation of the Acquisition, could not reasonably
be expected to result in a Material Adverse Effect. All applicable
waiting periods in connection with the Acquisition and the other
transactions contemplated hereby have expired without any action having
been taken by any competent authority restraining, preventing or
imposing materially adverse conditions upon the Acquisition or the
rights of the Loan Parties freely to transfer or otherwise dispose of,
or to create any Lien on, any properties now owned or hereafter
acquired by any of them.
(e) This Agreement has been, and each of the Notes, each other
Loan Document when delivered hereunder will have been, duly executed
and delivered by each Loan Party party thereto. This Agreement is, and
each of the Notes, each other Loan Document and each Related Document
when delivered hereunder will be, the legal, valid and binding
obligation of each Loan Party party thereto, enforceable against such
Loan Party in accordance with its terms, except as enforceability may
be limited by applicable bankruptcy, insolvency, reorganization,
receivership, moratorium, fraudulent transfer or other similar laws
affecting the rights and remedies of creditors generally and by
principles of equity.
(f) The Consolidated balance sheet of the Borrower and its
Subsidiary Parties as at December 28, 1997, and the related
Consolidated statement of income and Consolidated statement of cash
flows of the Borrower and its Subsidiary Parties for the fiscal year
then ended, accompanied by an opinion of Deloitte & Touche, independent
public accountants, copies of which have been furnished to the
Arranger, fairly present in all material respects the Consolidated
financial condition of the Borrower and its Subsidiary Parties as at
such date and the Consolidated results of the operations of the
Borrower and its Subsidiary Parties for the period ended on such date,
all in accordance with GAAP, and since December 28, 1997, there has
been no Material Adverse Change.
(g) The Consolidated pro forma balance sheet of the Borrower
and its Subsidiary Parties as at December 28, 1997, and the related
Consolidated pro forma statement of income of the Borrower and its
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Subsidiary Parties for the Fiscal Year then ended, copies of which have
been furnished to the Arranger, fairly present in all material respects
the Consolidated pro forma financial condition of the Borrower and its
Subsidiary Parties as at such date and the Consolidated pro forma
results of operations of the Borrower and its Subsidiary Parties for
the period ended on such date, in each case giving effect to the
Acquisition and the other transactions contemplated hereby, all in
accordance with GAAP.
(h) The Consolidated forecasted balance sheets, income
statements and cash flows statements of the Borrower and its Subsidiary
Parties delivered to the Lender Parties in the Information Memorandum
and to the Administrative Agent pursuant to Section 3.01(k)(x) or 5.03
were prepared in good faith on the basis of the assumptions stated
therein, which assumptions were fair in the light of conditions
existing at the time of delivery of such forecasts, and represented, at
the time of delivery, the Borrower's reasonable estimate of its future
financial performance (although the actual results during the periods
covered by such forecasts may differ from the forecasted results).
(i) Neither the Information Memorandum nor any other
information, exhibit or report furnished by any Loan Party to the
Administrative Agent or any Lender Party in connection with the
negotiation of the Loan Documents or pursuant to the terms of the Loan
Documents contained any untrue statement of a material fact or omitted
to state a material fact necessary to make the statements made therein
not misleading, subject in the case of the Consolidated forecasted
balance sheets, income statements and cash flows statements of the
Borrower and its Subsidiary Parties contained therein to the
qualifications set forth in Section 4.01(h) with respect thereto.
(j) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party, including any Environmental
Action, pending or, to the Borrower's knowledge, threatened before any
court, governmental agency or arbitrator that (i) could reasonably be
expected to (A) have a Material Adverse Effect or (ii) purports to
adversely affect the legality, validity or enforceability of the
Acquisition, this Agreement, any Note, any other Loan Document, any
Related Document or the consummation of the transactions contemplated
hereby.
(k) Except in connection with the Buyback, no proceeds of any
Advance or drawings under any Letter of Credit will be used to acquire
any equity security of a class that is registered pursuant to Section
12 of the Securities Exchange Act of 1934.
(l) The Borrower is not engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance or drawings under any Letter of Credit will be
used to purchase or carry any Margin Stock or to extend credit to
others for the purpose of purchasing or carrying any Margin Stock
except for the stock acquired as a result of the Buyback.
(m) Following application of the proceeds of each Advance or
drawing under each Letter of Credit, not more than 25 percent of the
value of the assets (either of the Borrower only or of the Borrower and
its Subsidiary Parties on a Consolidated basis) subject to the
provisions of Section 5.02(a)(i), 5.02(a)(v), 5.02(b)(i) or 5.02(b)(iv)
or subject to any restriction contained in any agreement or instrument
between the Borrower and any Lender Party or any Affiliate of any
Lender Party relating to Debt and within the scope of Section 6.01(e)
will be Margin Stock.
(n) Set forth on Schedule 4.01(n) hereto is a complete and
accurate list of all Plans and Multiemployer Plans.
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(o) No ERISA Event has occurred or is reasonably expected to
occur with respect to any Plan.
(p) As of the last annual actuarial valuation date, the funded
current liability percentage, as defined in Section 302(d)(8) of ERISA,
of each Plan exceeds 90%, and there has been no material adverse change
in the funding status of any such Plan since such date.
(q) Schedule B (Actuarial Information) to the most recent
annual report (Form 5500 Series) for each Plan, copies of which have
been filed with the Internal Revenue Service and furnished to the
Lender Parties, is in all material respects complete and accurate and
fairly presents the funding status of such Plan, and since the date of
such Schedule B there has been no material adverse change in such
funding status.
(r) Neither any Loan Party nor any ERISA Affiliate has
incurred or is reasonably expected to incur any Withdrawal Liability
exceeding $1,000,000 to any Multiemployer Plan.
(s) Neither any Loan Party nor any ERISA Affiliate has been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or has been terminated, within the meaning of
Title IV of ERISA, and no such Multiemployer Plan is reasonably
expected to be in reorganization or to be terminated, within the
meaning of Title IV of ERISA.
(t) Except as set forth in the financial statements referred
to in this Section 4.01 and in Section 5.03, the Loan Parties and their
respective Subsidiary Parties have no material liability with respect
to "expected post retirement benefit obligations" within the meaning of
Statement of Financial Accounting Standards No. 106.
(u) Neither the business nor the properties of any Loan Party
or any of its Subsidiary Parties are currently affected by any fire,
explosion, accident, strike, lockout or other labor dispute, drought,
storm, hail, earthquake, embargo, act of God or of the public enemy or
other casualty (whether or not covered by insurance) that could
reasonably be expected to have a Material Adverse Effect.
(v) The operations and properties of each Loan Party comply in
all material respects with all applicable Environmental Laws and
Environmental Permits, all past material non-compliance with such
Environmental Laws and Environmental Permits has been resolved without
ongoing obligations or costs, and no circumstances exist that could
reasonably be expected to (i) form the basis of an Environmental Action
against any Loan Party or any of its properties that could have a
Material Adverse Effect or (ii) cause any such property to be subject
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to any material restrictions on ownership, occupancy, use or
transferability under any Environmental Law
(w) Except for those matters that could not be reasonably
expected to have a Material Adverse Effect, to the best knowledge of
the Borrower after diligent investigation, none of the properties
currently or formerly owned or operated by any Loan Party is listed or
proposed for listing on the NPL or on the CERCLIS or any analogous
foreign, state or local list or is adjacent to any such property; there
are no and never have been any underground or aboveground storage tanks
or any surface impoundments, septic tanks, pits, sumps or lagoons in
which Hazardous Materials are being or have been treated, stored or
disposed on any property currently owned or operated by any Loan Party
or, to the best of its knowledge, on any property formerly owned or
operated by any Loan Party; there is no asbestos or asbestos-
containing material on any property currently owned or operated by any
Loan Party; and Hazardous Materials have not been released, discharged
or disposed of on any property currently or formerly owned or operated
by any Loan Party.
(x) No Loan Party is undertaking, and has not completed,
either individually or together with other potentially responsible
parties, any investigation or assessment or remedial or response action
relating to any actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation, either
voluntarily or pursuant to the order of any governmental or regulatory
authority or the requirements of any Environmental Law that could
reasonably be expected to have a Material Adverse Effect; and all
Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party have been disposed of in a manner not
reasonably expected to result in material liability to any Loan Party.
(y) No Loan Party is a party to any indenture, loan or credit
agreement or any lease or other agreement or instrument or subject to
any charter or corporate restriction that could reasonably be expected
to have a Material Adverse Effect.
(z) The Collateral Documents create a valid and perfected
first priority security interest in the Collateral, securing the
payment of the Obligations, and all filings and other actions necessary
or desirable to perfect and protect such security interest have been
duly taken. The Loan Parties are the legal and beneficial owners of the
Collateral free and clear of any Lien, except for the liens and
security interests created or permitted under the Loan Documents.
(aa) Each Loan Party has filed, has caused to be filed or has
been included in all tax returns (Federal, state, local and foreign)
required to be filed and has paid all taxes shown thereon to be due,
together with applicable interest and penalties.
(bb) Set forth on Schedule 4.01(bb) hereto is a complete and
accurate list, as of the date hereof, of each taxable year of each Loan
Party for which Federal income tax returns have been filed and for
which the expiration of the applicable statute of limitations for
assessment or collection has not occurred by reason of extension or
otherwise (an "Open Year").
(cc) The aggregate unpaid amount, as of the date hereof, of
adjustments to the Federal income tax liability of each Loan Party and
each of its Subsidiary Parties proposed by the Internal Revenue Service
with respect to Open Years does not exceed $100,000 in the aggregate.
No issues have been raised by the Internal Revenue Service in respect
of Open Years that, in the aggregate, could reasonably be expected to
have a Material Adverse Effect.
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(dd) The aggregate unpaid amount, as of the date hereof, of
adjustments to the state, local and foreign tax liability of each Loan
Party and its Subsidiary Parties proposed by all state, local and
foreign taxing authorities (other than amounts arising from adjustments
to Federal income tax returns) does not exceed $500,000 in the
aggregate. No issues have been raised by such taxing authorities that,
in the aggregate, could reasonably be expected to have a Material
Adverse Effect.
(ee) Neither any Loan Party nor any of its Subsidiary Parties
is an "investment company," or an "affiliated person" of, or "promoter"
or "principal underwriter" for, an "investment company," as such terms
are defined in the Investment Company Act of 1940, as amended. Neither
the making of any Advances, nor the issuance of any Letters of Credit,
nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
(ff) The Borrower is, individually and together with its
Subsidiary Parties , Solvent.
(gg) Set forth on Schedule 4.01(gg) hereto is a complete and
accurate list of all Debt existing on the date hereof, showing as of
the date hereof the principal amount outstanding thereunder (such Debt
being the "Existing Debt").
(hh) Set forth on Schedule 4.01(hh) hereto is a complete and
accurate list of all Surviving Debt, showing as of the date hereof the
principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(ii) Each Loan Party has good, marketable and insurable fee
simple title to its real property, free and clear of all Liens, other
than Liens created or permitted by the Loan Documents. Each lease with
respect to real property is the legal, valid and binding obligation of
the lessor thereof, enforceable in accordance with its terms, except as
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, receivership, moratorium, fraudulent transfer or other
similar laws affecting the rights and remedies of creditors generally
and by principles of equity.
(jj) Set forth on Schedule 4.01(jj) hereto is a complete and
accurate list of all Investments held by any Loan Party or any of its
Subsidiary Parties , showing as of the date hereof the amount, obligor
or issuer and maturity, if any, thereof.
(kk) Set forth on Schedule 4.01(kk) hereto is a complete and
accurate list of all (i) patents, trademarks, trade names and service
marks, (ii) to the extent material to the business of the Borrower and
its Subsidiary Parties, copyrights, and (iii) all applications therefor
and licenses thereof, of each Loan Party or any of its Subsidiary
Parties , showing as of the date hereof the jurisdiction in which
registered, the registration number, the date of registration and the
expiration date.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will (for the benefit of
the Lenders, the Issuing Bank and the Administrative Agent):5
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(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiary Parties to comply, in all material respects, with all
applicable laws, rules, regulations and orders, such compliance to
include, without limitation, compliance with ERISA and the Racketeer
Influenced and Corrupt Organizations Chapter of the Organized Crime
Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each
of its Subsidiary Parties to pay and discharge, before the same shall
become delinquent, (A) all taxes, assessments and governmental charges
or levies imposed upon it or upon its property and (B) all lawful
claims that, if unpaid, might by law become a Lien upon its property;
provided, however, that neither the Borrower nor any of its Subsidiary
Parties shall be required to pay or discharge any such tax, assessment,
charge or claim that is being contested in good faith and by proper
proceedings and as to which appropriate reserves are being maintained,
unless and until any Lien resulting therefrom attaches to its property
and becomes enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each
of its Subsidiary Parties and all lessees and other Persons operating
or occupying its properties to comply, in all material respects, with
all applicable Environmental Laws and Environmental Permits; obtain and
renew and cause each of its Subsidiary Parties to obtain and renew all
Environmental Permits necessary for its operations and properties; and
conduct, and cause each of its Subsidiary Parties to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws; provided, however, that neither
the Borrower nor any of its Subsidiary Parties shall be required to
undertake any such cleanup, removal, remedial or other action to the
extent that its obligation to do so is being contested in good faith
and by proper proceedings and appropriate reserves are being maintained
with respect to such circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiary Parties to maintain, workers' compensation, general
liability and property casualty insurance with responsible and
reputable insurance companies or associations in such amounts and
covering such risks as is usually carried by companies engaged in
similar businesses and owning similar properties in the same general
areas in which the Borrower or such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and
maintain, and cause each of its Subsidiary Parties to preserve and
maintain, its existence, legal structure, legal name, rights (charter
and statutory), permits, licenses, approvals, privileges and
franchises; provided, however, that the Borrower and its Subsidiary
Parties may consummate any other merger or consolidation permitted
under Section 5.02(a)(iv) and Section 5.02(b)(iii); and provided
further, that neither the Borrower nor any of its Subsidiary Parties
shall be required to preserve any right, permit, license, approval,
privilege or franchise if the Board of Directors of the Borrower or
such Subsidiary, as the case may be, shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Borrower or such Subsidiary, as the case may be, and
that the loss thereof is not disadvantageous in any material respect to
the Borrower, the Borrower and its Subsidiary Parties , taken as a
whole, or the Lender Parties; provided that the determination of the
Board of Directors of the Borrower shall not be required with respect
to any rights, permits, licenses, approvals, privileges or franchises
that the Board of Directors of the Borrower would not, in the ordinary
course of business and consistent with past practices and policies, be
required to approve, and in which case such determination shall be made
by the Borrower in its reasonable business judgment consistent with
past practices.
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(f) Visitation Rights. At any reasonable time and from time to
time, permit the Administrative Agent, the Documentation Agent, the
Arranger or any of the Lender Parties or any agents or representatives
thereof , to examine and make copies of and abstracts from the records
and books of account of, and visit the properties of, the Borrower and
any of its Subsidiary Parties (in each case coordinated through the
Administrative Agent, the Documentation Agent or the Arranger prior to
the occurrence of an Event of Default), and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiary Parties
with any of their officers or directors and with their independent
certified public accountants (in each case coordinated through a
Responsible Officer prior to the occurrence of an Event of Default).
(g) Keeping of Books. Keep proper books of record and account
on a Consolidated basis in accordance with GAAP.
(h) Maintenance of Properties, Etc. Maintain and preserve, and
cause each of its Subsidiary Parties to maintain and preserve, all of
its properties that are used or useful in the conduct of its business
in good working order and condition, ordinary wear and tear excepted.
(i) Transactions with Affiliates. Conduct, and cause each of
its Subsidiary Parties to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates on terms that are
fair and reasonable and no less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate, except as disclosed in the
Borrower's Form 10-K for 1997 and the proxy statement filed with the
Securities and Exchange Commission in March, 1998 for the annual
meeting of the Borrower to be held on May 6, 1998.
(j) Preparation of Environmental Reports. At the request of
the Required Lenders from time to time after the occurrence of a
Default, provide to the Lender Parties within 60 days after such
request, at the expense of the Borrower, an environmental site
assessment report for any of its or its Subsidiary Parties' properties
described in such request, prepared by an environmental consulting firm
acceptable to the Required Lenders, indicating the presence or absence
of Hazardous Materials and the estimated cost of any compliance,
removal or remedial action in connection with any Hazardous Materials
on such properties; without limiting the generality of the foregoing,
if the Required Lenders determine at any time that a material risk
exists that any such report will not be provided within the time
referred to above, the Administrative Agent on behalf of the Required
Lenders may retain an environmental consulting firm to prepare such
report at the expense of the Borrower, and the Borrower hereby grants
and agrees to cause any Subsidiary that owns any property described in
such request to grant at the time of such request, to the
Administrative Agent, such firm and any agents or representatives
thereof an irrevocable non-exclusive license, subject to the rights of
tenants, to enter onto their respective properties to undertake such an
assessment.
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(k) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform in all material respects all obligations in respect
of all leases of real property to which the Borrower or any of its
Subsidiary Parties is a party, keep such leases in full force and
effect and not allow such leases to lapse or be terminated or any
rights to renew such leases to be forfeited or canceled (in each case
except to the extent that, in the reasonable business judgment of the
Borrower or such Subsidiary, it is in the best interest of the Borrower
or such Subsidiary to allow or to cause such nonperformance, lapse,
termination, forfeiture or cancellation, and such nonperformance,
lapse, termination, forfeiture or cancellation could not, individually
or in the aggregate, be reasonably likely to result in a Material
Adverse Effect), notify the Administrative Agent of any default by any
party with respect to such leases and cooperate with the Administrative
Agent in all respects to cure any such default, and cause each of its
Subsidiary Parties to do so.
(l) Performance of Related Document. Perform and observe in
all material respects all of the terms and provisions of the Related
Document to be performed or observed by it, maintain the Related
Document in full force and effect, enforce the Related Document in
accordance with its terms, take all such action to such end as may be
from time to time requested by the Administrative Agent and, upon
request of the Administrative Agent, make to each other party to the
Related Document such demands and requests for information and reports
or for action as the Borrower is entitled to make under the Related
Document.
(m) Interest Rate Hedging. Enter into within 90 days of the
Initial Extension of Credit and maintain at all times thereafter
through March 31, 2001 interest rate Hedge Agreements with any Lender,
any Affiliate of any Lender or any other Person acceptable to the
Required Working Capital Lenders, covering a notional amount equal to
at least 50% of the principal amount of the Term Advances outstanding
and providing for such Persons to make payments thereunder, to the
extent of increases in interest rates based on the Eurodollar Rate
greater than 1% above the weighted average Eurodollar Rate on the date
hereof.
SECTION 5.02. Negative Covenants. (a) Negative Covenants
relating to the Working Capital Facility. So long as any Working Capital Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Working
Capital Lender shall have any Working Capital Commitment hereunder, the Borrower
will not (for the benefit of the Working Capital Lenders, the Issuing Bank and
the Administrative Agent only), at any time:
(i) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiary Parties to create, incur, assume or suffer
to exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiary Parties to sign or file or suffer to exist, under
the Uniform Commercial Code of any jurisdiction, a financing statement
that names the Borrower or any of its Subsidiary Parties as debtor, or
sign or suffer to exist, or permit any of its Subsidiary Parties to
sign or suffer to exist, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or permit
any of its Subsidiary Parties to assign, any accounts or other right to
receive income, excluding, however, from the operation of the foregoing
restrictions the following:
(A) Liens created under the Loan Documents
(including, without limitation, Liens subject to the
Intercreditor Agreement);
(B) Permitted Liens;
(C) Liens existing on the date hereof and described
on Schedule 5.02(a)(i)(C) hereto;
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(D) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Subsidiary Parties in the ordinary course of business to
secure the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property
or equipment to be subject to such Liens, or Liens existing on
any such property or equipment at the time of acquisition
(other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (D) shall not exceed the amount
permitted under Section 5.02(a)(ii)(A)(9) at any time
outstanding and that any such Debt shall not otherwise be
prohibited by the terms of the Loan Documents;
(E) Liens securing any Debt permitted under clauses
(3), (4) and (5) of Section 5.02(a)(ii)(A); provided that (1)
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (E) shall not exceed $50,000,000 at
any time outstanding and that any such Debt shall not
otherwise be prohibited by the terms of the Loan Documents,
(2) the debt secured by Liens on property other than the
Collateral shall not exceed $5,000,000 at any time
outstanding, (3) with respect to any Lien on the Collateral,
the agent or other authorized representative of the lender of
such Debt shall execute and deliver the Intercreditor
Agreement in accordance with the terms thereof and (4) on and
after such time that the security interest in the Collateral
is released pursuant to the terms of the Collateral Documents,
no Liens on the property that constitutes Collateral shall be
permitted;
(F) Liens securing any Debt permitted under clause
(2) of Section 5.02(a)(ii)(A); and
(G) the replacement, extension or renewal of any Lien
permitted by clauses (C) through (F) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(ii) Debt. Create, incur, assume or suffer to exist, or permit
any of its Subsidiary Parties to create, incur, assume or suffer to
exist, any Debt other than:
(A) in the case of the Borrower,
(1) Debt under the Loan Documents,
(2) Debt incurred in connection with any
Permitted Refinancing of the Working Capital Facility
or the Term Facility (subject to the limitations of
clause (3) below),
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(3) Debt incurred in connection with any
increase in a Facility (or any increase in connection
with a Permitted Refinancing of a Facility) that,
when aggregated with the amount of Debt incurred
pursuant to clause (4) below, does not exceed the sum
of the amount of such Facility (or, if a Permitted
Refinancing thereof has occurred, the amount of the
Facility immediately prior to such Permitted
Refinancing) prior to giving effect to such increase
(and without giving effect to any prior increases in
such Facility, or if a Permitted Refinancing of a
Facility has occurred, in the Facility so refinanced)
and $50,000,000,
(4) Debt incurred in an aggregate amount not
in excess of $50,000,000 outstanding at any time that
is unsecured or secured by Liens permitted by Section
5.02(a)(i)(E) that, when aggregated with the amount
of Debt incurred pursuant to clause (3) above, does
not exceed the sum of the amount of the Facilities
(without giving effect to any prior increases in such
Facilities) and $50,000,000,
(5) Debt in respect of letter of credit
facilities in an aggregate amount not in excess of
$15,000,000 outstanding at any time that is unsecured
or secured by Liens permitted by Section
5.02(a)(i)(E),
(6) unsecured Debt consisting of guaranties
made by the Borrower in connection with the financing
by the Borrower's franchisees of the acquisition of
restaurants franchised by the Borrower or any of its
Subsidiary Parties in respect of an aggregate amount
of guaranteed obligations not in excess of $10,000,00
at any time,
(7) unsecured Debt consisting of (I)
guaranties existing on the date hereof set forth in
Schedule 5.02(a)(ii)(A)(7) in respect of an aggregate
amount of guaranteed obligations not in excess of
$5,000,000 at any time and (II) guaranties in respect
of the then effective term of operating leases of
franchisees in respect of guaranteed obligations not
in excess of $18,000,000 at any time,
(8) Debt in respect of Hedge Agreements
designed to hedge against fluctuations in interest
rates or foreign exchange rates incurred in the
ordinary course of business and consistent with
prudent business practice in an aggregate notional
amount not to exceed $125,000,000 at any time
outstanding,
(9) Debt secured by Liens permitted by
Section 5.02(a)(i)(D) not to exceed in the aggregate
the sum of $5,000,000 and the amount of Debt, if any,
not to exceed $6,000,000, constituting purchase money
obligations secured by Liens on the Specified Leases,
at any time outstanding,
(10) Capitalized Leases not to exceed in the
aggregate $20,000,000 at any time outstanding,
(11) the Surviving Debt, and any Permitted
Refinancing thereof;
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(B) in the case of any of its Subsidiary Parties,
(1) Permitted Intercompany Debt (except,
with respect to any Intellectual Property Subsidiary,
to the extent otherwise prohibited under Section
5.02(b)(ii)); and
(2) Debt under the Loan Documents; and
(C) in the case of the Borrower and any of its
Subsidiary Parties, indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business.
(iii) Operating Lease Obligations. Create, incur, assume or
suffer to exist, or permit any of its Subsidiary Parties to create,
incur, assume or suffer to exist, any obligations as lessee for the
rental or hire of real or personal property of any kind under operating
leases or agreements to lease having an original term of one year or
more that would cause the direct and contingent liabilities of the
Borrower and its Subsidiary Parties, on a Consolidated basis, in
respect of all such obligations payable in any Fiscal Year of the
Borrower to exceed an amount equal to the sum of (A) the amount of such
obligations payable during the preceding Fiscal Year of the Borrower
(excluding amounts described in the following proviso) and (B)
$4,000,000; provided that the Borrower may exceed such limit for any
Fiscal Year to the extent that, after applying an amount equal to the
product of (A) such excess for such Fiscal Year (the "Excess Lease
Obligations") and (B) 8, as Capital Expenditure for such Fiscal Year as
a permitted Capital Expenditures set forth in the table set forth in
Section 5.02(a)(xvii) for such Fiscal Year, the Borrower shall be in
compliance with Section 5.02(a)(xvii).
(iv) Mergers, Etc. Merge into or consolidate with any Person
or permit any Person to merge into it, or permit any of its Subsidiary
Parties to do so, except that (A) any Subsidiary of the Borrower may
merge into or consolidate with any other Subsidiary of the Borrower
provided that, in the case of any such merger or consolidation, the
Person formed by such merger or consolidation shall be a wholly-owned
Subsidiary of the Borrower and (B) the Borrower may merge into or
consolidate with any Person in connection with the making of any
Investment permitted by Section 5.02(a)(vi); provided, however, that in
each case, immediately after giving effect thereto, no event shall
occur and be continuing that constitutes a Working Capital Facility
Default and, in the case of any such merger to which the Borrower is a
party, the Borrower is the surviving corporation.
(v) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiary Parties to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase, lease or otherwise acquire any assets other
than Inventory to be sold in the ordinary course of its business,
except:
(A) sales of inventory in the ordinary course of its
business,
(B) in a transaction authorized by subsection (iv) of
this Section,
(C) the sale of any asset by the Borrower or any
Subsidiary (other than a sale of accounts receivables other
than delinquent accounts for collection purposes only) so long
as (1) the purchase price paid to the Borrower or such
Subsidiary for such asset shall be no less than the fair
market value as reasonably determined by the Borrower (or, in
the case of assets with a fair market value exceeding
$5,000,000, as reasonably determined by, and evidenced by a
resolution of, the board of directors of the Borrower) of such
asset at the time of such sale, (2) the purchase price for
such asset shall be paid to the Borrower or such Subsidiary in
consideration consisting of (x) cash and (y) notes in a
principal amount not to exceed the greater of $5,000,000 or
25% of the aggregate amount of such consideration (provided
that the aggregate amount of all such notes from all such
sales, transfers and other dispositions not exceed $20,000,000
at any time) and (3) the aggregate purchase price paid to the
Borrower and all of its Subsidiary Parties for such asset and
all other assets sold by the Borrower and its Subsidiary
Parties during the same Fiscal Year pursuant to this clause
(C) shall not exceed $25,000,000,
(D) so long as no Working Capital Facility Default
shall occur and be continuing, the grant of any option or
other right to purchase any asset in a transaction that would
be permitted under the provisions of clause (C) above, and
(E) the Long Island Sale,
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provided that in the case of sales of assets and the receipt of Net
Cash Proceeds pursuant to clause (C) above, the Borrower shall comply
with the provisions of Section 2.06(b)(i).
(vi) Investments in Other Persons. Make or hold, or permit any
of its Subsidiary Parties to make or hold, any Investment in any Person
other than:
(A) Investments by the Borrower and its Subsidiary
Parties in their Subsidiary Parties; provided that the
Borrower shall not make any Investment in the Texas Subsidiary
or the Dutch Subsidiary, as the case may be, that would result
in the Texas Subsidiary or the Dutch Subsidiary, as the case
may be, being required to execute and deliver the Subsidiaries
Pledge Agreement and the Guaranty under Section 5.03(q) unless
simultaneously with the making of such Investment the Texas
Subsidiary or Dutch Subsidiary, as the case may be, so
executes such documents;
(B) loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiary
Parties as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(C) Investments by the Borrower and its Subsidiary
Parties in Cash Equivalents;
(D) Investments by the Borrower in Hedge Agreements
permitted under
Section 5.02(a)(ii)(A)(8);
(E) Investments consisting of Intercompany Debt
permitted under Section 5.02(a)(ii)(B);
(F) Investments existing on the date hereof and
described on Schedule 5.02(a)(vi)(F) hereto;
(G) other Investments in connection with the purchase
of restaurants operated or to be operated by the Borrower or
its Subsidiary Parties and with respect to which the Borrower
or its Subsidiary Parties has the United States franchising
rights therefor, or franchised or to be franchised by the
Borrower or its Subsidiary Parties from (1) Net Cash Proceeds
and (2) otherwise to the extent that (x), when aggregated with
the amount of Capital Expenditures made pursuant to proviso
clause (iii) of Section 5.02(a)(xvii), such Investments do not
exceed in an aggregate amount from the date of the Initial
Extension of Credit (I) $50,000,000 through and including
December 31, 2000 and (II) thereafter $100,000,000; provided
that with respect to Investments made under this clause (G):
(x) any newly acquired or created Subsidiary of the Borrower
or any of its Subsidiary Parties shall be a wholly-owned
Subsidiary thereof and (y) immediately before and after giving
effect thereto, no Default that, with the giving of notice or
passage of time or both would become a Working Capital
Facility Event of Default, shall have occurred and be
continuing or would result therefrom; and
(H) Investments consisting of (1) notes receivable
from franchisees arising from accounts receivable from
franchisees in an aggregate principal amount not to exceed
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$5,000,000 at any time outstanding and (2) notes described and
permitted under Section 5.02(a)(v)(C)(2)(y).
(vii) Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such
capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit
any of its Subsidiary Parties to do any of the foregoing or permit any
of its Subsidiary Parties to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock of the Borrower or any
warrants, rights or options to acquire such capital stock or to issue
or sell any capital stock or any warrants, rights or options to acquire
such capital stock, except that, so long as no Working Capital Facility
Default shall have occurred and be continuing at the time of any action
described in clause (A)(3), (A)(4) or (A)(5) below or would result
therefrom, (A) the Borrower may (1) declare and pay dividends and
distributions payable only in common stock of the Borrower, (2) issue
options and rights, and capital stock upon exercise of such options or
rights, pursuant to any Stock Plan or the Rights Agreement, (3)
purchase, redeem, retire, defease or otherwise acquire shares of its
capital stock with the proceeds received from the issue of new shares
of its capital stock with equal or inferior voting powers,
designations, preferences and rights, (4) repurchase shares of common
stock in connection with the Buyback and (5) declare and pay cash
dividends to its stockholders and purchase, redeem, retire or otherwise
acquire shares of its own outstanding capital stock for cash if after
giving effect thereto the aggregate amount of such dividends,
purchases, redemptions, retirements and acquisitions paid or made in
any Fiscal Year would not exceed $5,000,000, and (B) any Subsidiary of
the Borrower may (1) declare and pay cash dividends to the Borrower and
(2) declare and pay cash dividends to any other wholly-owned Subsidiary
of the Borrower of which it is a Subsidiary.
(viii) Change in Nature of Business. Make, or permit any of
its Subsidiary Parties to make, any material change in the nature of
its business as carried on at the date hereof.
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(ix) Charter Amendments. Amend, or permit any of its
Subsidiary Parties to amend, its certificate of incorporation,
certificate of formation, partnership agreement, limited liability
company agreement or bylaws; provided, that notwithstanding the
foregoing to the contrary, the Borrower shall cause the Subsidiary
Parties listed on Schedule 5.02(b)(ix) to amend their certificate of
incorporation to eliminate preemptive rights and to provide evidence
thereof reasonably satisfactory to the Administrative Agent within 60
days of the date hereof.
(x) Accounting Changes. Make or permit, or permit any of its
Subsidiary Parties to make or permit, any material change in (A)
accounting policies or reporting practices, except as required by GAAP
or (B) its or their Fiscal Year.
(xi) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner any Debt (other than any Existing Debt and other than any
Specified Leases), or make any payment in violation of any
subordination terms of, any Debt, other than (A) the prepayment of the
Advances in accordance with the terms of this Agreement, pursuant to
any Permitted Refinancing and (B) regularly scheduled or required
repayments or redemptions of Surviving Debt, or amend, modify or change
in any manner any term or condition of any Surviving Debt or
Subordinated Debt, or permit any of its Subsidiary Parties to do any of
the foregoing other than to prepay any Debt payable to the Borrower.
(xii) Amendment, Etc. of Related Document. Cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof or take any other action in connection with any
Related Document that would materially impair the value of the interest
or rights of the Borrower thereunder or that would materially impair
the rights or interests of the Administrative Agent or any Lender
Party, or permit any of its Subsidiary Parties to do any of the
foregoing.
(xiii) Ownership Change. Take, or permit any of its Subsidiary
Parties to take, any action that would result in an "ownership change"
(as defined in Section 382 of the Internal Revenue Code) with respect
to the Borrower or the application of the "separate return limitation
year" or "consolidated return change of ownership" limitations under
the Federal income tax consolidated return regulations with respect to
the Borrower; provided, however, that in no event shall the Borrower's
mere required recordation of stock transfers (as opposed to the
transfers themselves) constitute a breach of this covenant.
(xiv) Negative Pledge. Enter into or suffer to exist, or
permit any of its Subsidiary Parties to enter into or suffer to exist,
any agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets other than (A) in favor of
the Secured Parties or (B) in connection with (1) any Surviving Debt or
(2) any Debt permitted by Section 5.02(a)(ii)(A)(8) or 5.02(a)
(ii)(A)(9) hereof.
(xv) Partnerships, Etc.. Become a general partner in any
general or limited partnership or joint venture, or permit any of its
Subsidiary Parties to do so, other than any Subsidiary the sole assets
of which consist of its interest in such partnership or joint venture.
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(xvi) Hedge Agreements or Speculative Transactions. Purchase
or enter into, or permit any of its Subsidiary Parties to purchase or
enter into, any Hedge Agreement, any commodity swap, or any other type
of option or futures contract, or any similar speculative transactions
except for Hedge Agreements permitted under Section 5.02(a)(ii).
(xvii) Capital Expenditures. Make, or permit any of its
Subsidiary Parties to make, any Capital Expenditures that would cause
the aggregate of all such Capital Expenditures made by the Borrower and
its Subsidiary Parties in any period set forth below to exceed an
amount equal to the amount set forth below for such period:
Fiscal Year Amount
1998 $100,000,000
1999 $115,000,000
2000 $115,000,000
2001 $115,000,000
2002 $115,000,000
provided, that:
(i) beginning in Fiscal Year 1999, the amount set forth
in the table above shall be reduced for such Fiscal Year to an
amount equal to the product of (x) such amount and (y) a
fraction (not greater than 1) the numerator of which is EBITDA
as of the end of the immediately preceding Fiscal Year and the
denominator of which is $125,000,000;
(ii) the Acquisition shall not be subject to the
limitations of this Section
5.02(a)(xvii);
(iii) notwithstanding the foregoing limitation on
Capital Expenditures, the Borrower shall be permitted to make
Capital Expenditures constituting the purchase of restaurants
operated or to be operated by the Borrower or its Subsidiary
Parties and with respect to which the Borrower or its Subsidiary
Parties has the United States franchising rights therefor, or
franchised or to be franchised by the Borrower or its Subsidiary
Parties ("Restaurant Acquisition CapEx"), and such Restaurant
Acquisition CapEx shall not be applied against the permitted
Capital Expenditures amounts set forth above from (A) Net Cash
Proceeds and (B) otherwise to the extent that (x), when
aggregated with the amount of Investments made pursuant to
Section 5.02(a)(vi)(G), such Restaurant Acquisition CapEx do not
exceed in an aggregate amount from the date of the Initial
Extension of Credit (I) $50,000,000 through and including
December 31, 2000 and (II) thereafter $100,000,000, and (y)
immediately before and after giving effect thereto, no event
that, with the giving of notice or passage of time or both would
become a Working Capital Facility Event of Default, shall have
occurred and be continuing or would result therefrom; and
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(iv) the amount set forth in the table above for any
Fiscal Year shall be reduced by an amount equal to the product
of (A) the Excess Lease Obligations for such Fiscal Year and (B)
8.
For purposes of this Section 5.02(a)(xvii), the amount
of Capital Expenditures otherwise permitted to be made during any Fiscal
Year shall be increased for such Fiscal Year by the Carried Forward
Amount for such Fiscal Year. The "Carried Forward Amount" for any Fiscal
Year shall be the excess, if any, of the amount of Capital Expenditures
permitted to be made during the preceding Fiscal Year over the actual
amount of Capital Expenditures made during such Fiscal Year.
(b) Negative Covenants relating to the Term Facility. So long
as any Term Advance shall remain unpaid or any Term Lender shall have any Term
Commitment hereunder, the Borrower will not (for the benefit of the Term Lenders
and the Administrative Agent only), at any time:
(i) Liens, Etc. Create, incur, assume or suffer to exist, or
permit any of its Subsidiary Parties to create, incur, assume or suffer
to exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiary Parties to sign or file or suffer to exist, under
the Uniform Commercial Code of any jurisdiction, a financing statement
that names the Borrower or any of its Subsidiary Parties as debtor, or
sign or suffer to exist, or permit any of its Subsidiary Parties to
sign or suffer to exist, any security agreement authorizing any secured
party thereunder to file such financing statement, or assign, or permit
any of its Subsidiary Parties to assign, any accounts or other right to
receive income, excluding, however, from the operation of the foregoing
restrictions the following:
(A) Liens created under the Loan Documents
(including, without limitation, Liens subject to the
Intercreditor Agreement);
(B) Permitted Liens;
(C) Liens existing on the date hereof and described
on Schedule 5.02(b)(i)(C) hereto;
(D) purchase money Liens upon or in real property or
equipment acquired or held by the Borrower or any of its
Subsidiary Parties in the ordinary course of business to
secure the purchase price of such property or equipment or to
secure Debt incurred solely for the purpose of financing the
acquisition, construction or improvement of any such property
or equipment to be subject to such Liens, or Liens existing on
any such property or equipment at the time of acquisition
(other than any such Liens created in contemplation of such
acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing
for the same or a lesser amount; provided, however, that no
such Lien shall extend to or cover any property other than the
property or equipment being acquired, constructed or improved,
and no such extension, renewal or replacement shall extend to
or cover any property not theretofore subject to the Lien
being extended, renewed or replaced; and provided further that
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (D) shall not exceed the amount
permitted under Section 5.02(b)(ii)(A)(9) at any time
outstanding and that any such Debt shall not otherwise be
prohibited by the terms of the Loan Documents;
(E) Liens securing any Debt permitted under clauses
(3), (4) and (5) of Section 5.02(b)(ii)(A); provided that (1)
the aggregate principal amount of the Debt secured by Liens
permitted by this clause (E) shall not exceed $50,000,000 at
any time outstanding and that any such Debt shall not
otherwise be prohibited by the terms of the Loan Documents,
(2) the debt secured by Liens on property other than the
Collateral shall not exceed $5,000,000 at any time
outstanding, (3) with respect to any
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Lien on the Collateral, the agent or other authorized
representative of the lender of such Debt shall execute and
deliver the Intercreditor Agreement in accordance with the
terms thereof and (4) on and after such time that the security
interest in the Collateral is released pursuant to the terms
of the Collateral Documents, no Liens on the property that
constitutes Collateral shall be permitted;
(F) Liens securing any Debt permitted under clause
(2) of Section 5.02(b)(ii)(A); and
(G) the replacement, extension or renewal of any Lien
permitted by clauses (C) through (F) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or change
in any direct or contingent obligor) of the Debt secured
thereby.
(ii) Debt. Create, incur, assume or suffer to exist or
otherwise become or be liable (collectively, "incur") in respect of any
Debt; provided, however, that the Borrower may incur Debt if the
Coverage Ratio for the Borrower for the four full fiscal quarters
immediately preceding the incurrence of such Debt taken as one period
is equal to or greater than 2.0:1.0. For purposes of this Section
5.02(b)(ii), the Coverage Ratio shall be determined after giving pro
forma effect to:
(x) the incurrence of such debt and (if applicable)
the application of the net proceeds therefrom, including to
refinance other Debt, as if such Debt was incurred, and the
application of such proceeds occurred, at the beginning of
such four-quarter period;
(y) the incurrence, repayment or retirement of any
other Debt by the Borrower and its Subsidiary Parties since
the first day of such four-quarter period (except that, in
making such computation, the amount of Debt under any
revolving credit facility (including without limitation the
Working Capital Facility) shall be computed based upon the
average daily balance of such Debt during such four-quarter
period); and
(z) any acquisition or disposition by the Borrower
and its Subsidiary Parties of any company or any business or
any assets out of the ordinary course of business, whether by
merger, stock purchase or sale, or asset purchase or sale or
any related repayment of Debt, in each case since the first
day of such four-quarter period, as if such acquisition or
disposition had been consummated on the first day of such
four-quarter period).
Notwithstanding the foregoing provisions of this Section 5.02(b)(ii) to
the contrary, the Borrower and its Subsidiary Parties shall not incur
any such Debt unless and until the Borrower shall, at its election and
its expense, either:
(x) (1) duly execute and deliver to the Collateral
Agent mortgages, pledges, assignments and other security
agreements, as specified by and in form and substance
satisfactory to the Collateral Agent, securing payment of all
the Obligations
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of the Borrower under the Loan Documents and constituting
valid and perfected first priority Liens in all then existing
and future license rights, patents, trademarks, tradenames and
copyrights held by the Borrower, directly or indirectly, (2)
take whatever action (including, without limitation, the
recording of mortgages, the filing of Uniform Commercial Code
financing statements, the giving of notices and the
endorsement of notices on title documents) may be necessary or
advisable in the opinion of the Collateral Agent to vest in
the Collateral Agent (or in any representative of the
Collateral Agent designated by it) valid and subsisting Liens
on the properties purported to be subject to the security
agreements delivered pursuant to this Section 5.02(b)(ii),
enforceable against all third parties in accordance with their
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent transfer or other similar laws
affecting the rights and remedies of creditors generally and
by principles of equity, and (iii) deliver to the
Administrative Agent and the Collateral Agent a signed copy of
a favorable opinion, addressed to the Administrative Agent and
the Collateral Agent, of counsel for the Borrower acceptable
to the Administrative Agent as to the matters contained in
clauses (i) and (ii) above, as to such security agreements
being legal, valid and binding obligations of the Borrower and
its Subsidiary Parties enforceable in accordance with their
terms, except as enforceability may be limited by applicable
bankruptcy, insolvency, reorganization, receivership,
moratorium, fraudulent transfer or other similar laws
affecting the rights and remedies of creditors generally and
by principles of equity, and as to such other matters as the
Administrative Agent may reasonably request; or
(y) transfer to and hold all then existing and future
license rights, patents, trademarks, tradenames and copyrights
to one or more Intellectual Property Subsidiaries, and provide
the Administrative Agent with copies of evidence reasonably
satisfactory to the Administrative Agent of such transfer and
information with respect to such transfer as the
Administrative Agent or any Term Lender through the
Administrative Agent may reasonably request; or
(z) do a combination of (x) and (y).
The foregoing provisions of this Section 5.02(b)(ii) shall not prohibit
the incurrence of the following Debt:
(A) in the case of the Borrower,
(1) Debt under the Loan Documents,
(2) Debt incurred in connection with any
Permitted Refinancing of a Facility (subject to the
limitations of clause (3) below),
(3) Debt incurred in connection with any
increase in a Facility (or any increase in connection
with a Permitted Refinancing of a Facility) that,
when aggregated with the amount of Debt incurred
pursuant to clause (4) below, does not exceed the sum
of the amount of such Facility (or, if a
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Permitted Refinancing thereof has occurred, the
amount of the Facility immediately prior to such
Permitted Refinancing) prior to giving effect to such
increase (and without giving effect to any prior
increases in such Facility, or if a Permitted
Refinancing of a Facility has occurred, in the
Facility so refinanced) and $50,000,000,
(4) Debt incurred in an aggregate amount not
in excess of $50,000,000 outstanding at any time that
is unsecured or secured by Liens permitted by Section
5.02(b)(i)(E) that, when aggregated with the amount
of Debt incurred pursuant to clause (3) above, does
not exceed the sum of the amount of the Facilities
(without giving effect to any prior increases in such
Facilities) and $50,000,000,
(5) Debt in respect of letter of credit
facilities in an aggregate amount not in excess of
$15,000,000 outstanding at any time that is unsecured
or secured by Liens permitted by Section
5.02(b)(i)(E),
(6) unsecured Debt consisting of guaranties
made by the Borrower in connection with the financing
by the Borrower's franchisees of the acquisition of
restaurants franchised by the Borrower or any of its
Subsidiary Parties in respect of an aggregate amount
of guaranteed obligations not in excess of
$10,000,000 at any time,
(7) unsecured Debt consisting of (I)
guaranties existing on the date hereof set forth in
Schedule 5.02(b)(ii)(A)(7) in respect of an aggregate
amount of guaranteed obligations not in excess of
$5,000,000 at any time and (II) guaranties in respect
of the then effective term of operating leases of
franchisees in respect of guaranteed obligations not
in excess of $18,000,000 at any time,
(8) Debt in respect of Hedge Agreements
designed to hedge against fluctuations in interest
rates or foreign exchange rates incurred in the
ordinary course of business and consistent with
prudent business practice in an aggregate notional
amount not to exceed $125,000,000 at any time
outstanding,
(9) Debt secured by Liens permitted by
Section 5.02(b)(i)(D) not to exceed in the aggregate
the sum of $5,000,000 and the amount of Debt, if any,
not to exceed $6,000,000, constituting purchase money
obligations secured by Liens on the Specified Leases,
at any time outstanding,
(10) Capitalized Leases not to exceed in the
aggregate $20,000,000 at any time outstanding,
(11) the Surviving Debt, and any Permitted
Refinancing thereof;
(B) in the case of any of its Subsidiary Parties,
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(1) Permitted Intercompany Debt (except,
with respect to any Intellectual Property Subsidiary,
to the extent otherwise prohibited under Section
5.02(b)(ii)); and
(2) Debt under the Loan Documents; and
(C) in the case of the Borrower and any of its
Subsidiary Parties, indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business.
(iii) Mergers, Etc. Merge into or consolidate with any Person
or permit any Person to merge into it, or permit any of its Subsidiary
Parties to do so, except that (A) any Subsidiary of the Borrower may
merge into or consolidate with any other Subsidiary of the Borrower
provided that, in the case of any such merger or consolidation, the
Person formed by such merger or consolidation shall be a wholly-owned
Subsidiary of the Borrower and (B) the Borrower may merge into or
consolidate with any Person in connection with the making of any
Investment permitted by Section 5.02(b)(v); provided, however, that in
each case, immediately after giving effect thereto, no event shall
occur and be continuing that constitutes a Term Facility Default and,
in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation.
(iv) Sales, Etc. of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiary Parties to sell, lease,
transfer or otherwise dispose of, any assets, or grant any option or
other right to purchase, lease or otherwise acquire any assets other
than Inventory to be sold in the ordinary course of its business,
except:
(A) sales of inventory in the ordinary course of its
business,
(B) in a transaction authorized by subsection (iii)
of this Section,
(C) the sale of any asset by the Borrower or any
Subsidiary (other than a sale of accounts receivables other
than delinquent accounts for collection purposes only) so long
as (1) the purchase price paid to the Borrower or such
Subsidiary for such asset shall be no less than the fair
market value as reasonably determined by the Borrower (or, in
the case of assets with a fair market value exceeding
$5,000,000, as reasonably determined by, and evidenced by a
resolution of, the board of directors of the Borrower) of such
asset at the time of such sale, (2) the purchase price for
such asset shall be paid to the Borrower or such Subsidiary in
consideration consisting of (x) cash and (y) notes in a
principal amount not to exceed the greater of $5,000,000 or
25% of the aggregate amount of such consideration (provided
that the aggregate amount of all such notes from all such
sales, transfers and other dispositions not exceed $20,000,000
at any time) and (3) the Coverage Ratio for the Borrower for
the four full fiscal quarters immediately preceding such sale
taken as one period is equal to or greater than 2.0:1.0,
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(D) so long as no Term Facility Default shall occur
and be continuing, the grant of any option or other right to
purchase any asset in a transaction that would be permitted
under the provisions of clause (C) above, and
(E) the Long Island Sale,
provided that in the case of sales of assets and the receipt of Net
Cash Proceeds pursuant to clause (C) above, the Borrower shall comply
with the provisions of Section 2.06(b)(i).
(v) Investments in Other Persons. Make or hold, or permit any
of its Subsidiary Parties to make or hold, any Investment in any Person
other than:
(A) Investments by the Borrower and its Subsidiary
Parties in their Subsidiary Parties; provided that the
Borrower shall not make any Investment in the Texas Subsidiary
or the Dutch Subsidiary, as the case may be, that would result
in the Texas Subsidiary or the Dutch Subsidiary, as the case
may be, being required to execute and deliver the Subsidiaries
Pledge Agreement and the Guaranty under Section 5.03(q) unless
simultaneously with the making of such Investment the Texas
Subsidiary or the Dutch Subsidiary, as the case may be, so
executes such documents;
(B) loans and advances to employees in the ordinary
course of the business of the Borrower and its Subsidiary
Parties as presently conducted in an aggregate principal
amount not to exceed $1,000,000 at any time outstanding;
(C) Investments by the Borrower and its Subsidiary
Parties in Cash Equivalents;
(D) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(ii)(A)(8);
(E) Investments consisting of Intercompany Debt
permitted under Section
5.02(b)(ii)(B);
(F) Investments existing on the date hereof and
described on Schedule 5.02(b)(v)(F) hereto;
(G) other Investments in connection with the purchase
of restaurants operated or to be operated by the Borrower or
its Subsidiary Parties and with respect to which the Borrower
or its Subsidiary Parties has the United States franchising
rights therefor, or franchised or to be franchised by the
Borrower or its Subsidiary Parties from (1) Net Cash Proceeds
and (2) otherwise to the extent that (x), when aggregated with
the amount of Capital Expenditures made pursuant to proviso
clause (iii) of Section 5.02(b)(xi), such Investments do not
exceed in an aggregate amount from the date of the Initial
Extension of Credit (I) $50,000,000 through and including
December 31, 2000 and (II) thereafter $100,000,000; provided
that with respect to Investments made under this clause (G):
(x) any newly acquired or created Subsidiary of the Borrower
or any of its Subsidiary Parties shall be a wholly-owned
Subsidiary thereof
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and (y) immediately before and after giving effect thereto, no
Default that, with the giving of notice or passage of time or
both would become a Term Facility Event of Default, shall have
occurred and be continuing or would result therefrom; and
(H) Investments consisting of (1) notes receivable
from franchisees arising from accounts receivable from
franchisees in an aggregate principal amount not to exceed
$5,000,000 at any time outstanding and (2) notes described and
permitted under Section 5.02(b)(iv)(C)(2)(y).
(vi) Dividends, Etc. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its
capital stock or any warrants, rights or options to acquire such
capital stock, now or hereafter outstanding, return any capital to its
stockholders as such, make any distribution of assets, capital stock,
warrants, rights, options, obligations or securities to its
stockholders as such or issue or sell any capital stock or any
warrants, rights or options to acquire such capital stock, or permit
any of its Subsidiary Parties to do any of the foregoing or permit any
of its Subsidiary Parties to purchase, redeem, retire, defease or
otherwise acquire for value any capital stock of the Borrower or any
warrants, rights or options to acquire such capital stock or to issue
or sell any capital stock or any warrants, rights or options to acquire
such capital stock, except that, so long as no Term Facility Default
shall have occurred and be continuing at the time of any action
described in clause (A)(3), (A)(4) or (A)(5) below or would result
therefrom, (A) the Borrower may (1) declare and pay dividends and
distributions payable only in common stock of the Borrower, (2) issue
options and rights, and capital stock upon exercise of such options or
rights, pursuant to any Stock Plan or the Rights Agreement, (3)
purchase, redeem, retire, defease or otherwise acquire shares of its
capital stock with the proceeds received from the issue of new shares
of its capital stock with equal or inferior voting powers,
designations, preferences and rights, (4) repurchase shares of common
stock in connection with the Buyback and (5) declare and pay cash
dividends to its stockholders and purchase, redeem, retire or otherwise
acquire shares of its own outstanding capital stock for cash if, after
giving effect thereto the aggregate amount of such dividends,
purchases, redemptions, retirements and acquisitions paid or made in
any Fiscal Year would not exceed the greater of $5,000,000 and 50% of
Consolidated net income of the Borrower and its Subsidiary Parties for
such Fiscal Year and (B) any Subsidiary of the Borrower may (1) declare
and pay cash dividends to the Borrower and (2) declare and pay cash
dividends to any other wholly-owned Subsidiary of the Borrower of which
it is a Subsidiary.
(vii) Change in Nature of Business. Make, or permit any of its
Subsidiary Parties to make, any material change in the nature of its
business as carried on at the date hereof.
(viii) Accounting Changes. Make or permit, or permit any of
its Subsidiary Parties to make or permit, any material change in (i)
accounting policies or reporting practices, except as required by GAAP
or (ii) Fiscal Year.
(ix) Prepayments, Etc. of Debt. Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof in
any manner any Debt (other than any Existing Debt and other than any
Specified Leases), or make any payment in violation of any
subordination terms of, any Debt, other than (A) the prepayment of the
Advances in accordance with the terms of this Agreement, pursuant to
any Permitted Refinancing and
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(B) regularly scheduled or required repayments or redemptions of
Surviving Debt, or amend, modify or change in any manner any term or
condition of any Material Debt in any manner that, taken as a whole,
results in the terms and conditions of such Material Debt being
materially more restrictive on the Borrower than the original terms and
conditions thereof, or permit any of its Subsidiary Parties to do any
of the foregoing other than to prepay any Debt payable to the Borrower.
(x) Minimum Working Capital Facility. Fail to maintain at all
times commitments under the Working Capital Facility and/or one or more
Permitted Refinancings thereof with an aggregate committed amount
thereunder of at least $75,000,000; provided that no amendment or
modification shall be made to the terms and conditions of the Working
Capital Facility, or any such Permitted Refinancing thereof, if such
amended, modified or refinanced revolving credit facility, taken as a
whole, is materially more onerous (including, without limitation, with
respect to fees and interest margins) on the Borrower than the Working
Capital Facility in effect on the Closing Date.
(xi) Capital Expenditures. Make, or permit any of its
Subsidiary Parties to make, any Capital Expenditures that would cause
the aggregate of all such Capital Expenditures made by the Borrower and
its Subsidiary Parties in any period set forth below to exceed the
amount set forth below for such period:
Fiscal Year Amount
1998 $100,000,000
1999 $125,000,000
2000 $125,000,000
2001 $125,000,000
2002 $125,000,000
2003 $125,000,000
2004 $125,000,000
2005 $125,000,000
provided, that:
(i) beginning in Fiscal Year 1999, the amount set
forth in the table above shall be reduced for such Fiscal Year
to an amount equal to the product of (x) such amount and (y) a
fraction (not greater than 1) the numerator of which is EBITDA
as of the end of the immediately preceding Fiscal Year and the
denominator of which is $125,000,000;
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(ii) the Acquisition shall not be subject to the
limitations of this Section 5.02(b)(xi);
(iii) notwithstanding the foregoing limitation on
Capital Expenditures, the Borrower shall be permitted to make
Capital Expenditures constituting the purchase of restaurants
operated or to be operated by the Borrower or its Subsidiary
Parties and with respect to which the Borrower or its
Subsidiary Parties has the United States franchising rights
therefor, or franchised or to be franchised by the Borrower or
its Subsidiary Parties ("Restaurant Acquisition CapEx"), and
such Restaurant Acquisition CapEx shall not be applied against
the permitted Capital Expenditures amounts set forth above
from (A) Net Cash Proceeds and (B) otherwise to the extent
that (x), when aggregated with the amount of Investments made
pursuant to Section 5.02(b)(v)(G), such Restaurant Acquisition
CapEx does not exceed in an aggregate amount from the date of
the Initial Extension of Credit (I) $50,000,000 through and
including December 31, 2000 and (II) thereafter $100,000,000,
and (y) immediately before and after giving effect thereto, no
event that, with the giving of notice or passage of time or
both would become a Term Facility Event of Default, shall have
occurred and be continuing or would result therefrom; and
(iv) the amount set forth in the table above for any
Fiscal Year shall be reduced by an amount equal to the product
of (A) the Excess Lease Obligations for such Fiscal Year and
(B) 8.
For purposes of this Section 5.02(b)(xi), the amount
of Capital Expenditures otherwise permitted to be made during any
Fiscal Year shall be increased for such Fiscal Year by the Carried
Forward Amount for such Fiscal Year. The "Carried Forward Amount" for
any Fiscal Year shall be the excess, if any, of the amount of Capital
Expenditures permitted to be made during the preceding Fiscal Year over
the actual amount of Capital Expenditures made during such Fiscal Year.
The covenants set forth in clauses (ii), (iv) and (vi) of this Section 5.02(b)
shall cease to be effective at such time as (I) the Borrower's senior unsecured
long term debt achieves ratings of at least BBB- from S&P and Baa3 from Moody's,
(II) such ratings remain in effect continuously for six months, (III) the
Borrower is not, during such period, placed on "credit watch" (or any like
designation by S&P or Moody's) and (IV) no Term Facility Default shall have
occurred and be continuing at such time.
SECTION 5.03. Reporting Requirements. So long as any Advance
shall remain unpaid, any Letter of Credit shall be outstanding or any Lender
Party shall have any Commitment hereunder, the Borrower will furnish to the
Lender Parties:
(a) Default Notice. As soon as possible and in any event
within three days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the
chief financial officer of the Borrower setting forth details of such
Default and the action that the Borrower has taken and proposes to take
with respect thereto.
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(b) Quarterly Financials. As soon as available and in any
event within 45 days after the end of each of the first three quarters
of each Fiscal Year, a Consolidated balance sheet of the Borrower and
its Subsidiary Parties as of the end of such quarter and a Consolidated
statement of income of the Borrower and its Subsidiary Parties for the
period commencing at the end of the previous fiscal quarter and ending
with the end of such fiscal quarter and a Consolidated statement of
income and a Consolidated statement of cash flows of the Borrower and
its Subsidiary Parties for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter, setting
forth in each case in comparative form the corresponding figures for
the corresponding period of the preceding Fiscal Year, all in
reasonable detail and duly certified (subject to normal year-end audit
adjustments) by the chief financial officer of the Borrower as having
been prepared in accordance with GAAP, together with (i) a certificate
of said officer stating that no Default has occurred and is continuing
or, if a Default has occurred and is continuing, a statement as to the
nature thereof and the action that the Borrower has taken and proposes
to take with respect thereto and (ii) a schedule in form satisfactory
to the Administrative Agent of the computations used by the Borrower in
determining compliance with the amount limitations contained in the
covenants contained in Sections 5.02(a)(ii), 5.02(a)(iii),
5.02(a)(v)(C), 5.02(a)(vi)(G), 5.02(a)(vii)(A)(5), 5.02(a)(xvii),
5.02(b)(ii), 5.02(b)(iv)(C), 5.02(b)(v)(G), 5.02(b)(vi)(a)(5) and
5.02(b)(xi) and the covenants contained in Section 5.04, provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP.
(c) Annual Financials. As soon as available and in any event
within 90 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Borrower and its Subsidiary Parties,
including therein a Consolidated balance sheet of the Borrower and its
Subsidiary Parties as of the end of such Fiscal Year and a Consolidated
statement of income and a Consolidated statement of cash flows of the
Borrower and its Subsidiary Parties for such Fiscal Year, in each case
accompanied by an opinion reasonably acceptable to the Required Lenders
of Deloitte & Touche or other independent public accountants of
recognized standing acceptable to the Required Lenders, together with
(i) a certificate of such accounting firm to the Lender Parties stating
that in the course of the regular audit of the business of the Borrower
and its Subsidiary Parties, which audit was conducted by such
accounting firm in accordance with generally accepted auditing
standards, such accounting firm has obtained no knowledge that a
Default has occurred and is continuing, or if, in the opinion of such
accounting firm, a Default has occurred and is continuing, a statement
as to the nature thereof, (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by such accountants in
determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Sections 5.02(a)(ii), 5.02(a)(iii),
5.02(a)(v)(C), 5.02(a)(vi)(G), 5.02(a)(vii)(A)(5), 5.02(a)(xvii),
5.02(b)(ii), 5.02(b)(iv)(C), 5.02(b)(v)(G), 5.02(b)(vi)(a)(5) and
5.02(b)(xi) and the covenants contained in Section 5.04, provided that
in the event of any change in GAAP used in the preparation of such
financial statements, the Borrower shall also provide, if necessary for
the determination of compliance with Section 5.04, a statement of
reconciliation conforming such financial statements to GAAP and (iii) a
certificate of the chief financial officer of the Borrower stating that
no Default has occurred and is continuing or, if a default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Borrower has taken and proposes to take with respect thereto.
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(d) Annual Forecasts. As soon as available and in any event no
later than 30 days after the end of each Fiscal Year, forecasts
prepared by management of the Borrower, in form reasonably satisfactory
to the Administrative Agent and the Required Lenders, of balance
sheets, income statements and cash flow statements on an annual basis
for each Fiscal Year thereafter until the later to occur of the Working
Capital Facility Termination Date and the Term Facility Termination
Date.
(e) ERISA Events and ERISA Reports. Promptly and in any event
within 10 days after any Loan Party or any ERISA Affiliate knows or has
reason to know that any ERISA Event has occurred, a statement of the
chief financial officer of the Borrower describing such ERISA Event and
the action, if any, that such Loan Party or such ERISA Affiliate has
taken and proposes to take with respect thereto and (ii) on the date
any records, documents or other information must be furnished to the
PBGC with respect to any Plan pursuant to Section 4010 of ERISA, a copy
of such records, documents and information.
(f) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any
Plan.
(g) Actuarial Reports. Promptly upon receipt thereof by any
Loan Party or any ERISA Affiliate, a copy of the annual actuarial
valuation report for each Plan the funded current liability percentage
(as defined in Section 302(d)(8) of ERISA) of which is less than 90% or
the unfunded current liability of which exceeds $1,000,000.
(h) Plan Annual Reports. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each Plan.
(i) Multiemployer Plan Notices. Promptly and in any event
within five Business Days after receipt thereof by any Loan Party or
any ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (i) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (ii) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer Plan
or (iii) the amount of liability incurred, or that may be incurred, by
such Loan Party or any ERISA Affiliate in connection with any event
described in clause (i) or (ii).
(j) Litigation. Promptly after the commencement thereof,
notice of all actions, suits, investigations, litigation and
proceedings before any court or governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign,
affecting any Loan Party or any of its Subsidiary Parties of the type
described in Section 4.01(j) that could reasonably be expected to have
a Material Adverse Effect.
(k) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and
reports that any Loan Party or any of its Subsidiary Parties sends to
its stockholders, and copies of all regular, periodic and special
reports, and all registration statements, that any Loan Party or any of
its Subsidiary Parties files with the
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Securities and Exchange Commission or any governmental authority that
may be substituted therefor, or with any national securities exchange.
(l) Creditor Reports. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
securities of any Loan Party or of any of its Subsidiary Parties
pursuant to the terms of any indenture, loan or credit or similar
agreement and not otherwise required to be furnished to the Lender
Parties through the Administrative Agent pursuant to any other clause
of this Section 5.03.
(m) Agreement Notices. Promptly upon receipt thereof, copies
of all notices, requests and other documents received by any Loan Party
or any of its Subsidiary Parties under or pursuant to any Related
Document or indenture, loan or credit or similar agreement and, from
time to time upon request by the Administrative Agent, such information
and reports regarding the Related Document as the Administrative Agent
may reasonably request.
(n) Revenue Administrative Agent Reports. Within 10 days after
receipt, copies of all Revenue Administrative Agent Reports (Internal
Revenue Service Form 886), or other written proposals of the Internal
Revenue Service, that propose, determine or otherwise set forth
positive adjustments to the Federal income tax liability of the
affiliated group (within the meaning of Section 1504(a)(1) of the
Internal Revenue Code) of which the Borrower is a member aggregating
$1,000,000 or more.
(o) Tax Certificates. Promptly, and in any event within five
Business Days after the due date (with extensions) for filing the final
United States federal income tax return in respect of each taxable
year, a certificate (a "Tax Certificate"), signed by the President or
the chief financial officer of the Borrower, stating that the Borrower,
as the common parent of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member, has paid to the Internal Revenue Service or other taxing
authority the full amount shown due on such United Sates federal income
tax return by such affiliated group in respect of Federal income tax
for such year.
(p) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by any Loan Party or any of its Subsidiary Parties
with any Environmental Law or Environmental Permit that could
reasonably be expected to have a Material Adverse Effect.
(q) Subsidiaries. At such time as (i) any Subsidiary is
created or acquired, (ii) the total assets of the Texas Subsidiary
first exceeds the lesser of (A) $6,000,000 and (B) the sum of (x)
$3,500,000 plus (y) the product of (1) $150,000 and (2) the number of
restaurants in excess of the number of restaurants existing on the date
hereof with respect to which the Texas Subsidiary holds the liquor
license, and the net income for any fiscal year of the Texas Subsidiary
exceeds $500,000, or (iii) the total assets of the Dutch Subsidiary
first exceeds $500,000 and the net income for any fiscal year thereof
exceeds $500,000, a revised Schedule 4.01(b) reflecting such
Subsidiary, the Texas Subsidiary or the Dutch Subsidiary, as the case
may be, together with (x) any relevant information with respect thereto
as may be requested by the Administrative Agent or the Collateral Agent
and (y) originally executed Guaranty and Subsidiaries Pledge Agreement
executed and delivered by such Subsidiary, the Texas
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Subsidiary or the Dutch Subsidiary, as the case may be, together with
all Collateral of such Subsidiary, the Texas Subsidiary or the Dutch
Subsidiary, as the case may be, and such other documents or instruments
as the Collateral Agent may reasonably request to perfect and maintain
the perfection of its security interests in such Collateral.
(r) Intellectual Property. At the time of delivery of the
annual financial statements hereunder, a supplement to Schedule
4.01(kk) hereto as of the end of the Fiscal Year of the Borrower to
which such annual financial statements relate.
(s) Supplemental Subsidiary Pledge. At such time as any
Guarantor which is not a party to the Subsidiaries Pledge Agreement
obtains any property that would constitute Collateral as defined in the
Subsidiaries Pledge Agreement, an originally executed Subsidiaries
Pledge Agreement executed and delivered by such Guarantor, together
with all Collateral of such Guarantor and such other documents or
instruments as the Collateral Agent may reasonably request to perfect
and maintain the perfection of its security interests in such
Collateral
(t) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiary
Parties as any Lender Party (through the Administrative Agent) may from
time to time reasonably request , including without limitation, within
60 days of the date hereof copies, certified by a Responsible Officer
of the Borrower as being true and complete, of all agreements,
instruments and other documents delivered in connection with the
Related Document.
SECTION 5.04. Financial Covenants. So long as any Working
Capital Advance shall remain unpaid, any Letter of Credit shall be outstanding
or any Working Capital Lender shall have any Working Capital Commitment
hereunder, the Borrower will (for the benefit of the Working Capital Lenders,
the Issuing Bank and the Administrative Agent only):
(a) Interest Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower, beginning with the fiscal quarter
ending closest to June 30, 1998, a ratio of EBITDA for the most
recently completed four fiscal quarters of the Borrower and its
Subsidiary Parties to Cash Interest Expense during such period of not
less than 5:1.
(b) Fixed Charge Coverage Ratio. Maintain at the end of each
fiscal quarter of the Borrower, beginning with the fiscal quarter
ending closest to June 30, 1998, a ratio of EBITDAR for the most
recently completed four fiscal quarters of the Borrower and its
Subsidiary Parties to the sum of (i) Cash Interest Expense plus (ii)
the aggregate required (but not optional) amount of all payments made
in cash on all operating leases plus (iii) the aggregate principal
amounts of all Debt for Borrowed Money payable plus (iv) the aggregate
amount of Adjusted Capital Expenditures, in each case, by the Borrower
and its Subsidiary Parties during such period of not less than the
amount set forth below for each period set forth below:
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Four Fiscal Quarters
Ending Closest to Ratio
June 30, 1998 0.9
September 30, 1998 0.9
December 31, 1998 0.9
March 31, 1999 0.9
June 30, 1999 0.9
September 30, 1999 0.9
December 31, 1999 0.9
March 31, 2000 0.9
June 30, 2000 0.9
September 30, 2000 0.9
December 31, 2000 0.9
March 31, 2001
and each quarter thereafter 1.0;
provided, that such ratio for any fiscal quarter shall be increased to
1.0 if at the end of such fiscal quarter the aggregate Unused Working
Capital Commitments of all of the Working Capital Lenders is less than
or equal to $25,000,000.
(c) Leverage Ratio. Maintain at the end of each fiscal quarter
of the Borrower, beginning with the fiscal quarter ending closest to
June 30, 1998, a ratio of Debt for Borrowed Money of the Borrower and
its Subsidiary Parties to EBITDA (such ratio, the "Leverage Ratio") for
the most recently completed four fiscal quarters of the Borrower and
its Subsidiary Parties of not more than the amount set forth below for
each period set forth below:
Four Fiscal Quarters
Ending Closest to Ratio
June 30, 1998 2.50
September 30, 1998 2.50
December 31, 1998 2.50
March 31, 1999 2.25
June 30, 1999 2.25
September 30, 1999 2.25
December 31, 1999 2.25
March 31, 2000
and each quarter thereafter 2.00
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following
events ("Events of Default") shall occur and be continuing:
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(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same shall become due and payable or (ii) the Borrower
shall fail to pay any interest on any Advance, or any Loan Party shall
fail to make any other payment under any Loan Document, in each case
under this clause (ii) within five Business Days after the same becomes
due and payable; or
(b) any representation or warranty made by any Loan Party
under or in connection with any Loan Document shall prove to have been
incorrect in any material respect when made; or
(c) (i) the Borrower shall fail to perform or observe any
term, covenant or agreement contained in Section 2.14, 5.01(f), (g),
(i), (j) or (m) or Section 5.03; or
(ii) the Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.02(a) or Section
5.04; or
(iii) the Borrower shall fail to perform or observe
any term, covenant or agreement contained in Section 5.02(b); or
(d) any Loan Party shall fail to perform any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 10
days after the earlier of the date on which (A) a Responsible Officer
of the Borrower becomes aware of such failure or (B) written notice
thereof shall have been given to the Borrower by the Administrative
Agent or any Lender Party through the Administrative Agent; or
(e) any Loan Party or any of its Subsidiary Parties shall fail
to pay any principal of, premium or interest on or any other amount
payable in respect of any Debt that is outstanding in a principal
amount or, in the case of Hedge Agreements, a net amount, of at least
$5,000,000 either individually or in the aggregate (but excluding Debt
outstanding hereunder) of such Loan Party or such Subsidiary (as the
case may be), when the same becomes due and payable (whether by
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 relating to
such Debt; or any other event shall occur or condition shall exist
under any agreement or instrument relating to any such Debt 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 to permit the acceleration of, the maturity of such Debt
or otherwise to cause, or to permit the holder thereof to cause, such
Debt to mature; or any such Debt 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 an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiary Parties shall
generally not pay its debts as such debts become due, or shall admit in
writing its inability to pay its debts generally, or shall make a
general assignment for the benefit of creditors; or any proceeding
shall be instituted by or against any Loan Party or any of its
Subsidiary Parties seeking to adjudicate it a bankrupt or insolvent,
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or seeking liquidation, winding up, reorganization, arrangement,
adjustment, protection, relief, or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief
of debtors, or seeking the entry of an order for relief or the
appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property and, in the case of any such
proceeding instituted against it (but not instituted by it) that is
being diligently contested by it in good faith, either such proceeding
shall remain undismissed or unstayed for a period of 60 days or any of
the actions sought in such proceeding (including, without limitation,
the entry of an order for relief against, or the appointment of a
receiver, trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or any
of its Subsidiary Parties shall take any corporate action to authorize
any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess
of $5,000,000 shall be rendered against any Loan Party or any of its
Subsidiary Parties and either (i) enforcement proceedings shall have
been commenced by any creditor upon such judgment or order, (ii) such
judgment or order is not stayed from enforcement, by reason of a
pending appeal or otherwise, within 30 days or (iii) after such stay of
enforcement is first effective, there shall be any period of 10
consecutive days during which such stay of enforcement, shall not be in
effect; provided, however, that any such judgment or order shall not
give rise to an Event of Default under this Section 6.01(g) if and for
so long as (A) the amount of such judgment or order is covered by a
valid and binding policy of insurance between the defendant and the
insurer covering payment thereof and the amount deductible thereunder,
if any, is $5,000,000 or less and (B) such insurer has been notified,
and has not disputed the claim made for payment, of the amount of such
judgment or order; or
(h) any non-monetary judgment or order shall be rendered
against any Loan Party or any of its Subsidiary Parties that could
reasonably be expected to have a Material Adverse Effect, and either
such judgment or order is not stayed from enforcement, by reason of a
pending appeal or otherwise, within 30 days or, after such stay of
enforcement is first effective, there shall be any period of 10
consecutive days during which such stay of enforcement, shall not be in
effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.02(b)(ii) or 5.03(s) shall for any reason
cease to be valid and binding on or enforceable against any Loan Party
party to it, or any such Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01 or 5.02(b)(ii) or 5.03(s) shall for any reason (other than
pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Collateral
purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event
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shall have occurred and then exist (or the liability of the Loan
Parties and the ERISA Affiliates related to such ERISA Event) exceeds
$5,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that, when
aggregated with all other amounts required to be paid to Multiemployer
Plans by the Loan Parties and the ERISA Affiliates as Withdrawal
Liability (determined as of the date of such notification), exceeds
$5,000,000 or requires payments exceeding $1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such Multiemployer
Plan is in reorganization or is being terminated, within the meaning of
Title IV of ERISA, and as a result of such reorganization or
termination the aggregate annual contributions of the Loan Parties and
the ERISA Affiliates to all Multiemployer Plans that are then in
reorganization or being terminated have been or will be increased over
the amounts contributed to such Multiemployer Plans for the plan years
of such Multiemployer Plans immediately preceding the plan year in
which such reorganization or termination occurs by an amount exceeding
$1,000,000;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Working Capital Lenders (if such event
is a Working Capital Facility Event of Default) or the Special Required Term
Lenders (if such event is a Term Facility Event of Default), by notice to the
Borrower, declare the obligation of each Appropriate Lender to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Working Capital
Lender pursuant to Section 2.03(b)) and, in the case of a Working Capital
Facility Event of Default, of the Issuing Bank to issue or renew Letters of
Credit to be terminated, whereupon the same shall forthwith terminate, and (ii)
shall at the request, or may with the consent, of the Required Working Capital
Lenders or the Special Required Term Facility Lenders, as the case may be, by
notice to the Borrower, declare the Working Capital Notes or the Term Notes, as
the case may be, all interest thereon and all other amounts payable under this
Agreement and the other Loan Documents in respect thereof to be forthwith due
and payable, whereupon such Notes, all such interest and all such amounts shall
become and be forthwith due and payable, without presentment, demand, protest or
further notice of any kind, all of which are hereby expressly waived by the
Borrower; provided, however, that in the event of an actual or deemed entry of
an order for relief with respect to any Loan Party under the United States
Federal Bankruptcy Code, (x) the obligation of each Lender to make Advances
(other than Letter of Credit Advances by the Issuing Bank or a Working Capital
Lender pursuant to Section 2.03(b)) and of the Issuing Bank to issue or renew
Letters of Credit shall automatically be terminated and (y) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. For purposes of this Agreement, the
"Working Capital Facility Events of Default" shall constitute all Events of
Default (other than those set forth in clause (c)(iii) for the first 30 days
that such Event of Default remains uncured or waived hereunder by the requisite
number of Term Lenders), and the "Term Facility Events of Default" shall
constitute all Events of Default (other than those set forth in clause (c)(ii)
or (k) for the first 30 days that such Event of Default remains uncured or
waived hereunder by the requisite number of Working Capital Lenders). In the
event that a Term Facility Event of Default arises as a result of the occurrence
of the event described in clause (k), each Term Lender is hereby deemed to have
exercised its option pursuant to Section 2.06(B)(viii), and the Change of
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Control Mandatory Prepayment Date with respect thereto shall occur on the 45th
day following the occurrence of such Change in Control.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Working Capital Facility Event of Default shall have occurred
and be continuing, the Administrative Agent may, or shall at the request of the
Required Working Capital Facility Lenders, irrespective of whether it is taking
any of the actions described in Section 6.01 or otherwise, make demand upon the
Borrower to, and forthwith upon such demand the Borrower will, pay to the
Administrative Agent on behalf of the Lender Parties under the Working Capital
Facility in same day funds at the Administrative Agent's office designated in
such demand, for deposit in the L/C Cash Collateral Account, an amount equal to
the aggregate Available Amount of all Letters of Credit then outstanding. If at
any time the Administrative Agent determines that any funds held in the L/C Cash
Collateral Account are subject to any right or claim of any Person other than
the Administrative Agent and such Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent, pay to the
Administrative Agent, as additional funds to be deposited and held in the L/C
Cash Collateral Account, an amount equal to the excess of (a) such aggregate
Available Amount over (b) the total amount of funds, if any, then held in the
L/C Cash Collateral Account that the Administrative Agent determines to be free
and clear of any such right and claim.
ARTICLE VII
THE AGENTS
SECTION 7.01. Authorization and Action. Each Lender Party (in
its capacities as a Lender, the Issuing Bank (if applicable) and a potential
Hedge Bank) hereby appoints and authorizes the Administrative Agent, the
Arranger and the Collateral Agent (each, together with the Syndication Agent and
the Documentation Agent, an "Agent") to take such action as agent on its behalf
and to exercise such powers and discretion under this Agreement and the other
Loan Documents as are delegated to such Agent by the terms hereof and thereof,
together with such powers and discretion as are reasonably incidental thereto.
The Syndication Agent and the Documentation Agent, as such, shall have no duties
hereunder or under the other Loan Documents. As to any matters not expressly
provided for by the Loan Documents (including, without limitation, enforcement
or collection of the Notes), the Agents shall not be required to exercise any
discretion or take any action, but shall be required to act or to refrain from
acting (and shall be fully protected in so acting or refraining from acting)
upon the instructions of the Required Working Capital Lenders (with respect to
matters relating to the Working Capital Facility) or the Required Term Lenders
(with respect to matters relating to the Term Facility), and such instructions
shall be binding upon all Lender Parties under such Facility and all holders of
Notes issued in respect of such Facility; provided, however, that no Agent shall
be required to take any action that exposes such Agent to personal liability or
that is contrary to this Agreement or applicable law. The Administrative Agent
agrees to give to each Lender Party prompt notice of each notice given to it by
the Borrower pursuant to the terms of this Agreement.
SECTION 7.02. Agent's Reliance, Etc. Neither any Agent nor any
of its directors, officers, agents or employees shall be liable for any action
taken or omitted to be taken by it or them under or in connection with the Loan
Documents, except for its or their own gross negligence or willful misconduct.
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Without limitation of the generality of the foregoing, each Agent: (a) may treat
the payee of any Note as the holder thereof until the Administrative Agent
receives and accepts an Assignment and Acceptance entered into by the Lender
that is the payee of such Note, as assignor, and an Eligible Assignee, as
assignee, as provided in Section 8.07; (b) may consult with legal counsel
(including counsel for any Loan Party), independent public accountants and other
experts selected by it and shall not be liable for any action taken or omitted
to be taken in good faith by it in accordance with the advice of such counsel,
accountants or experts; (c) makes no warranty or representation to any Lender
Party and shall not be responsible to any Lender Party for any statements,
warranties or representations (whether written or oral) made in or in connection
with the Loan Documents; (d) shall not have any duty to ascertain or to inquire
as to the performance or observance of any of the terms, covenants or conditions
of any Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 7.03. ML&Co., First Chicago and NationsBank and
Affiliates. With respect to its Commitments, the Advances made by it and the
Notes issued to it, each of ML&Co., First Chicago and NationsBank shall have the
same rights and powers under the Loan Documents as any other Lender Party and
may exercise the same as though it were not an Agent; and the term "Lender
Party" or "Lenders Parties" shall, unless otherwise expressly indicated, include
each of ML&Co., First Chicago and NationsBank in its individual capacity. Each
of ML&Co., First Chicago and NationsBank and their respective affiliates may
accept deposits from, lend money to, act as trustee under indentures of, accept
investment banking engagements from and generally engage in any kind of business
with, any Loan Party, any of its Subsidiary Parties and any Person who may do
business with or own securities of any Loan Party or any such Subsidiary, all as
if ML&Co., First Chicago and NationsBank were not Agents and without any duty to
account therefor to the Lender Parties.
SECTION 7.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without reliance upon any Agent or any other Lender Party and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit decisions in taking or not taking action under this
Agreement.
SECTION 7.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, reasonable costs, reasonable expenses or
reasonable disbursements of any kind or nature whatsoever that may be imposed
on, incurred by, or asserted against the such Agent in any way relating to or
arising out of the Loan Documents or any action taken or omitted by such Agent
under the Loan Documents; provided, however, that no Lender Party shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
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from such Agent's gross negligence or willful misconduct. Without limitation of
the foregoing, each Lender Party agrees to reimburse each Agent promptly upon
demand for its ratable share of any reasonable costs and expenses (including,
without limitation, reasonable fees and expenses of counsel) payable by the
Borrower under Section 8.04, to the extent that such Agent is not promptly
reimbursed for such costs and expenses by the Borrower. For purposes of this
Section 7.05(a), the Lender Parties' respective ratable shares of any amount
shall be determined, at any time, according to the sum of (a) the aggregate
principal amount of the Advances outstanding at such time and owing to the
respective Lender Parties, (b) their respective Pro Rata Shares of the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c) the
aggregate unused portions of their respective Term Commitments at such time and
(d) their respective Unused Working Capital Commitments at such time; provided,
that the aggregate principal amount of Letter of Credit Advances owing to the
Issuing Bank shall be considered to be owed to the Working Capital Lenders
ratably in accordance with their respective Working Capital Commitments. In the
event that any Defaulted Advance shall be owing by any Defaulting Lender at any
time, such Lender Party's Commitment with respect to the Facility under which
such Defaulted Advance was required to have been made shall be considered to be
unused for purposes of this Section 7.05(a) to the extent of the amount of such
Defaulted Advance. The failure of any Lender Party to reimburse any Agent
promptly upon demand for its ratable share of any amount required to be paid by
the Lender Party to such Agent as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent for its ratable
share of such amount, but no Lender Party shall be responsible for the failure
of any other Lender Party to reimburse such Agent for such other Lender Party's
ratable share of such amount. Without prejudice to the survival of any other
agreement of any Lender Party hereunder, the agreement and obligations of each
Lender Party contained in this Section 7.05(a) shall survive the payment in full
of principal, interest and all other amounts payable hereunder and under the
other Loan Documents.
(b) Each Working Capital Lender severally agrees to indemnify
the Issuing Bank (to the extent not promptly reimbursed by the Borrower) from
and against such Lender Party's ratable share (determined as provided below) of
any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, reasonable costs, reasonable expenses or reasonable
disbursements of any kind or nature whatsoever that may be imposed on, incurred
by, or asserted against the Issuing Bank in any way relating to or arising out
of the Loan Documents or any action taken or omitted by the Issuing Bank under
the Loan Documents; provided, however, that no Working Capital Lender shall be
liable for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements resulting
from the Issuing Bank's gross negligence or willful misconduct. Without
limitation of the foregoing, each Working Capital Lender agrees to reimburse the
Issuing Bank promptly upon demand for its ratable share of any reasonable costs
and expenses (including, without limitation, reasonable fees and expenses of
counsel) payable by the Borrower under Section 8.04, to the extent that the
Issuing Bank is not promptly reimbursed for such costs and expenses by the
Borrower. For purposes of this Section 7.05(b), the Working Capital Lenders'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (a) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Working Capital Lenders,
(b) their respective Pro Rata Shares of the aggregate Available Amount of all
Letters of Credit outstanding at such time plus (c) their respective Unused
Working Capital Commitments at such time; provided, that the aggregate principal
amount of Letter of Credit Advances owing to the Issuing Bank shall be
considered to be owed to the Working Capital Lenders ratably in accordance with
their respective Working Capital Commitments. In the event that any Defaulted
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Advance shall be owing by any Defaulting Lender which is a Working Capital
Lender at any time, such Working Capital Lender's Commitment with respect to the
Working Capital Facility shall be considered to be unused for purposes of this
Section 7.05(b) to the extent of the amount of such Defaulted Advance. The
failure of any Working Capital Lender to reimburse the Issuing Bank promptly
upon demand for its ratable share of any amount required to be paid by the
Working Capital Lenders to the Issuing Bank as provided herein shall not relieve
any other Working Capital Lender of its obligation hereunder to reimburse the
Issuing Bank for its ratable share of such amount, but no Working Capital Lender
shall be responsible for the failure of any other Working Capital Lender to
reimburse the Issuing Bank for such other Working Capital Lender's ratable share
of such amount. Without prejudice to the survival of any other agreement of any
Working Capital Lender hereunder, the agreement and obligations of each Working
Capital Lender contained in this Section 7.05(b) shall survive the payment in
full of principal, interest and all other amounts payable hereunder and under
the other Loan Documents.
SECTION 7.06. Successor Agents. Any Agent may resign (and in
the case of the Administrative Agent, as to any or all of the Facilities) at any
time by giving written notice thereof to the Lender Parties and the Borrower and
may be removed (in the case of the Administrative Agent, as to any or all of the
Facilities) at any time with or without cause by, in the case of the
Administrative Agent, the Required Working Capital Lenders (in respect of the
Working Capital Facility) or the Required Term Lenders (in respect of the Term
Facility) and with respect to any other Agent, the Required Lenders (the Agent
so resigning or being removed being the "Retiring Agent"). Upon any such
resignation or removal, (i) if the Retiring Agent is the Administrative Agent,
the Required Working Capital Lenders (in respect of the Working Capital
Facility) or the Required Term Lenders (in respect of the Term Facility) shall
have the right to appoint a successor to such Retiring Agent, or (ii) as to any
other Agent, the Required Lenders shall have the right to appoint a successor to
such Retiring Agent, in each case as to such of the Facilities as to which such
Retiring Agent has resigned or been removed (the Lenders described in clause (i)
or (ii), as the case may be, being the "Appointing Lenders"). If no successor to
such Retiring Agent shall have been so appointed, and shall have accepted such
appointment, within 30 days after the Retiring Agent's giving of notice of
resignation or the removal of the Retiring Agent, then such Retiring Agent may,
on behalf of the relevant Lender Parties, appoint a successor to such Retiring
Agent, which shall be a commercial bank organized under the laws of the United
States or of any State thereof and having a combined capital and surplus of at
least $250,000,000. Upon the acceptance of any appointment as an Agent hereunder
by a successor (such successor, in the capacity held by the Retiring Agent,
being the "Successor Agent") as to all of the relevant Facilities and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Collateral Documents, and
such other instruments or notices, as may be necessary or desirable, or as the
Appointing Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such Successor
Agent shall succeed to and become vested with all the rights, powers,
discretion, privileges and duties of the Retiring Agent, and the Retiring Agent
shall be discharged from its duties and obligations under the Loan Documents.
Upon the acceptance of any appointment as Agent hereunder by a Successor Agent
as to less than all of the Facilities and upon the execution and filing or
recording of such financing statements, or amendments thereto, and such
amendments or supplements to the Collateral Documents, and such other
instruments or notices, as may be necessary or desirable, or as the Appointing
Lenders may request, in order to continue the perfection of the Liens granted or
purported to be granted by the Collateral Documents, such Successor Agent shall
succeed to and become vested with all the rights, powers, discretion, privileges
and duties of the Retiring Agent as to such Facilities, other than with respect
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to funds transfers and other similar aspects of the administration of Borrowings
under such Facilities, issuances of Letters of Credit (notwithstanding any
resignation as Administrative Agent with respect to the Letter of Credit
Facility) and payments by the Borrower in respect of such Facilities, and the
Retiring Agent shall be discharged from its duties and obligations under this
Agreement as to such Facilities, other than as aforesaid. The Lenders agree to
use commercially reasonable efforts and act in good faith to appoint a Successor
Agent. If within 45 days after written notice is given of the Retiring Agent's
resignation or removal under this Section 7.06 no successor to such Retiring
Agent shall have been appointed and shall have accepted such appointment, then
on such 45th day (i) the Retiring Agent's resignation or removal shall become
effective, (ii) the Retiring Agent shall thereupon be discharged from its duties
and obligations under the Loan Documents and (iii) the Appointing Lenders shall
thereafter perform all duties of the Retiring Agent under the Loan Documents
with respect to the relevant Facility until such time, if any, as the Appointing
Lenders appoint a successor to such Retiring Agent as provided above. After any
Retiring Agent's resignation or removal hereunder as Agent as to all of the
Facilities, the provisions of this Article VII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent as to any
Facilities under this Agreement.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by the Borrower or any other Loan Party therefrom, shall in any
event be effective unless the same shall be in writing and signed (or, in the
case of the Collateral Documents, consented to) by, if the Working Capital
Lenders would be directly affected thereby, the Required Working Capital Lenders
(other than any amendment to Section 5.02(b), any "Term Facility Event of
Default" and any defined term referred to therein) and, if the Term Lenders
would be directly affected thereby, the Required Term Lenders (other than any
amendment to or waiver of Section 5.02(a), 5.04, any "Working Capital Facility
Event of Default" and any defined term referred to therein), 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 (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender)
directly affected thereby, do any of the following at any time: (i) waive any of
the conditions specified in Section 3.01 or, in the case of the Initial
Extension of Credit, Section 3.02 (except that after the initial extension of
credit in respect of the Term Facility, such waiver shall be effective when
signed by all of the Working Capital Lenders), (ii) change the number of Lenders
or the percentage of (x) the Commitments, (y) the aggregate unpaid principal
amount of the Advances or (z) the aggregate Available Amount of outstanding
Letters of Credit that, in each case, shall be required for the Lenders or any
of them to take any action hereunder, (iii) reduce or limit the obligations of a
Guarantor under Section 1 of the Guaranty or otherwise limit a Guarantor's
liability with respect to the Obligations owing to the Administrative Agent and
the Lender Parties, except that a Guarantor may be released of all of its
Obligations under the Loan Documents pursuant to a transaction permitted under
the Loan Documents whereby all of the direct and indirect equity interests of
the Borrower in such Guarantor are sold, (iv) release all or substantially all
of the Collateral in any transaction or series of related transactions, or amend
any provision of any Loan Document to modify any provisions concerning the
release of the Collateral, in any transaction or series of related transactions
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or permit the creation, incurrence, assumption or existence of any Lien on all
or substantially all of the Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations owing to the
Credit Providers as provided under the Intercreditor Agreement and other than
Debt owing to any other Person, (v) amend this Section 8.01, or (vi) limit the
liability of any Loan Party under any of the Loan Documents; and (b) no
amendment, waiver or consent shall, unless in writing and signed by each Lender
that has a Commitment under the Term Facility or Working Capital Facility if
affected by such amendment, waiver or consent, (i) increase the Commitments of
such Lender or subject such Lender to any additional obligations, (ii) reduce
the principal of, or interest on, the Notes held by such Lender or any fees or
other amounts payable hereunder to such Lender, (iii) postpone any date fixed
for any regularly scheduled payment of principal of, or interest on, the Notes
held by such Lender or any fees or other amounts payable hereunder to such
Lender or (iv) waive or change the order of application of any prepayment set
forth in Section 2.06 in any manner that materially affects such Lender;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Bank in addition to the Lenders required above to take
such action, affect the rights or obligations of the Issuing Bank, as the case
may be, under this Agreement; provided further that no amendment, waiver or
consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement; and provided further
that at such time as (i) the Borrower's senior unsecured long term debt achieves
ratings of at least BBB- from S&P and Baa3 from Moody's, (ii) such ratings
remain in effect continuously for six months, (iii) the Borrower is not, during
such period, placed on "credit watch" (or any like designation by S&P or
Moody's) and (iv) no Default shall have occurred and be continuing at such time,
the Collateral Agent shall be entitled to release the Collateral pursuant to the
terms of the Security Agreement without the consent of any Lender. The
Administrative Agent shall be entitled in its sole discretion to waive payment
of any fee pursuant to Section 8.07(a). Notwithstanding the foregoing to the
contrary, the Borrower may request one or more Lenders to increase their
Commitment, and such Lenders may in their sole discretion agree to increase such
Commitment; provided, that after giving effect to such increases in such
Commitments no Default would occur and be continuing. Such increase in such
Commitments shall be evidenced by notice to the Administrative Agent thereof by
each such Lender and the Borrower, and Schedule I hereto shall be suplemented to
reflect such increased Commitments.
SECTION 8.02. Notices, Etc. All notices and other
communications provided for hereunder shall be in writing (including
telegraphic, telecopy or telex communication) and mailed, telegraphed,
telecopied, telexed or delivered, if to the Borrower, at its address at 4551 W.
107th Street, Overland Park, KS 66207, Attention: Chief Financial Officer; if to
any Initial Lender or the Initial Issuing Bank, at its Domestic Lending Office
specified opposite its name on Schedule I hereto; if to any other Lender Party,
at its Domestic Lending Office specified in the Assignment and Acceptance
pursuant to which it became a Lender Party; and if to the Administrative Agent,
at its address at One First National Plaza, Chicago, Illinois 60670, Attention:
__________; or, as to the Borrower or the Administrative Agent, at such other
address as shall be designated by such party in a written notice to the other
parties and, as to each other party, at such other address as shall be
designated by such party in a written notice to the Borrower and the
Administrative Agent. All such notices and communications shall, when mailed,
telegraphed, telecopied or telexed, be effective when deposited in the mails,
delivered to the telegraph company, transmitted by telecopier or confirmed by
telex answerback, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be effective
until received by the Administrative Agent. Any communication by telecopier
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shall be followed by delivery by nationally recognized overnight courier of a
copy of such communication. Delivery by telecopier of an executed counterpart of
any amendment or waiver of any provision of this Agreement or the Notes or of
any Exhibit hereto to be executed and delivered hereunder shall be effective as
delivery of a manually executed counterpart thereof. Prior to the occurrence of
an Event of Default, all communications from, or requests by, a Lender to the
Borrower shall be made through the Administrative Agent, and the Administrative
Agent agrees to promptly convey such communication or request to the Borrower.
SECTION 8.03. No Waiver; Remedies. No failure on the part of
any Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under any Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. Costs, Expenses and Certain Taxes. (a) The
Borrower agrees to pay on demand (i) all reasonable costs and expenses of the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification and amendment of the Loan Documents (including,
without limitation, (A) all reasonable due diligence, collateral review,
syndication, transportation, computer, duplication, appraisal, audit, insurance,
consultant, search, filing and recording fees and expenses and (B) the
reasonable fees and expenses of counsel for ML&Co. and the Administrative Agent
with respect thereto, with respect to advising the Administrative Agent as to
its rights and responsibilities, or the perfection, protection or preservation
of rights or interests, under the Loan Documents, with respect to negotiations
with any Loan Party or with other creditors of any Loan Party or any of its
Subsidiary Parties arising out of any Default or any events or circumstances
that may give rise to a Default and with respect to presenting claims in or
otherwise participating in or monitoring any bankruptcy, insolvency or other
similar proceeding involving creditors' rights generally and any proceeding
ancillary thereto) and (ii) all reasonable costs and expenses of the Agents and
the Lender Parties in connection with the enforcement (including, without
limitation, in connection with the negotiation of any restructuring or "workout"
with the Borrower, whether or not consummated) of the Loan Documents, whether in
any action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without limitation,
the reasonable fees and expenses of counsel for the Agents and each Lender Party
with respect thereto). In addition, the Borrower shall pay any and all stamp and
other taxes payable or determined to be payable in connection with the execution
and delivery of this Agreement, the Notes and the other Loan Documents and
agrees to save each Agent and each Lender Party harmless from and against any
and all liabilities with respect to or resulting from any delay in paying or
failure to pay such taxes.
(b) The Borrower agrees to indemnify and hold harmless each
Agent, each Lender Party and each of their Affiliates and their officers,
directors, employees, agents and advisors (each, an "Indemnified Party") from
and against any and all claims, damages, losses, liabilities and reasonable
expenses (including, without limitation, reasonable fees and expenses of
counsel) that may be incurred by or asserted or awarded against any Indemnified
Party, in each case arising out of or in connection with or by reason of
(including, without limitation, in connection with any investigation, litigation
or proceeding or preparation of a defense in connection therewith) (i) the
Facilities, the actual or proposed use of the proceeds of the Advances or the
Letters of Credit, the Loan Documents or any of the transactions contemplated
thereby, including, without limitation, any acquisition or proposed acquisition
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(including, without limitation, the Acquisition, the Buyback and any of the
other transactions contemplated hereby) by the Borrower or any of its Subsidiary
Parties or Affiliates of all or any portion of the stock or substantially all
the assets of the Borrower or any of its Subsidiary Parties or (ii) the actual
or alleged presence of Hazardous Materials on any property of any Loan Party or
any of its Subsidiary Parties or any Environmental Action relating in any way to
any Loan Party or any of its Subsidiary Parties, except to the extent such
claim, damage, loss, liability or expense is found in a final, non-appealable
judgment by a court of competent jurisdiction to have resulted from such
Indemnified Party's gross negligence or willful misconduct. In the case of an
investigation, litigation or other proceeding to which the indemnity in this
Section 8.04(b) applies, such indemnity shall be effective whether or not such
investigation, litigation or proceeding is brought by any Loan Party, its
directors, shareholders or creditors or an Indemnified Party or any Indemnified
Party is otherwise a party thereto and whether or not the transactions
contemplated hereby are consummated. The Borrower also agrees not to assert any
claim against any Agent, any Lender Party or any of their Affiliates, or any of
their respective officers, directors, employees, attorneys and agents, on any
theory of liability, for special, indirect, consequential or punitive damages
arising out of or otherwise relating to the Facilities, the actual or proposed
use of the proceeds of the Advances or the Letters of Credit, the Loan Documents
or any of the transactions contemplated thereby.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such Advance,
as a result of a payment or Conversion pursuant to Section 2.09(b)(i) or
2.10(d), acceleration of the maturity of the Notes pursuant to Section 6.01 or
for any other reason, the Borrower shall, upon demand by such Lender Party (with
a copy of such demand to the Administrative Agent), pay to the Administrative
Agent for the account of such Lender Party any amounts required to compensate
such Lender Party for any additional losses, costs or expenses that it may
reasonably incur as a result of such payment, including, without limitation, any
loss (including loss of anticipated profits), cost or expense incurred by reason
of the liquidation or reemployment of deposits or other funds acquired by any
Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, reasonable fees and expenses of counsel and indemnities,
such amount may be paid on behalf of such Loan Party by the Administrative Agent
or any Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
8.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. Right of Set-off. Upon (a) the occurrence and
during the continuance of any Working Capital Facility Event of Default or Term
Facility Event of Default and (b) the making of the request or the granting of
the consent specified by Section 6.01 to authorize the Administrative Agent to
declare the relevant Notes due and payable pursuant to the provisions of Section
6.01, each Lender Party under the relevant Facility and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise 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 Party or such
Affiliate to or for the credit or the account of the Borrower against any and
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all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes (if any) held by such Lender Party, irrespective
of whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; provided, however, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have.
SECTION 8.06. Binding Effect. This Agreement shall become
effective when it shall have been executed by the Borrower and the
Administrative Agent and when the Administrative Agent shall have been notified
by each Initial Lender and the Initial Issuing Bank that such Initial Lender and
the Initial Issuing Bank has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Administrative Agent and each
Lender Party and their respective successors and assigns, except that the
Borrower shall not have the right to assign its rights hereunder or any interest
herein without the prior written consent of the Lender Parties.
SECTION 8.07. Assignments and Participations. (a) Each Lender
may assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement (including, without limitation, all or a
portion of its Commitment or Commitments, the Advances owing to it and the Note
or Notes held by it); provided, however, that (i) each such assignment shall be
of a uniform, and not a varying, percentage of all rights and obligations under
and in respect of any Facility, (ii) except in the case of an assignment to a
Person that, immediately prior to such assignment was a Lender or an Affiliate
of a Lender or an assignment of all of a Lender's rights and obligations under
this Agreement, the amount of the Commitment of the assigning Lender being
assigned pursuant to each such assignment (determined as of the date of the
Assignment and Acceptance with respect to such assignment) shall in no event be
less than, with respect to the Working Capital Facility, the lesser of 5% of the
Working Capital Facility or $5,000,000 and, with respect to the Term Facility,
$5,000,000, (iii) each such assignment shall be to an Eligible Assignee, (iv) no
such assignments shall be permitted without the consent of the Syndication Agent
until June 30, 1998 or, if earlier, the date the Syndication Agent shall have
notified the Lender Parties that syndication of the Commitments hereunder has
been completed, and (v) the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with any Note or Notes subject
to such assignment and a processing and recordation fee of $2,000.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender or
Issuing Bank, as the case may be, hereunder and (y) the Lender or Issuing Bank
assignor thereunder shall, to the extent that rights and obligations hereunder
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights and be released from its obligations under this Agreement (and, in
the case of an Assignment and Acceptance covering all or the remaining portion
of an assigning Lender's or Issuing Bank's rights and obligations under this
Agreement, such Lender or Issuing Bank shall cease to be a party hereto).
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(c) By executing and delivering an Assignment and Acceptance,
the Lender Party assignor thereunder and the assignee thereunder confirm to and
agree with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, this Agreement or any other Loan Document or any
other instrument or document furnished pursuant hereto or thereto; (ii) such
assigning Lender Party makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or any
other Loan Party or the performance or observance by any Loan Party of any of
its obligations under any Loan Document or any other instrument or document
furnished pursuant thereto; (iii) such assignee confirms that it has received a
copy of this Agreement, together with copies of the financial statements
referred to in Section 4.01 and such other documents and information as it has
deemed appropriate to make its own credit analysis and decision to enter into
such Assignment and Acceptance; (iv) such assignee will, independently and
without reliance upon the Administrative Agent, such assigning Lender Party or
any other Lender Party and based on such documents and information as it shall
deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as agent on its behalf and to exercise
such powers and discretion under the Loan Documents as are delegated to the
Administrative Agent by the terms hereof, together with such powers and
discretion as are reasonably incidental thereto; and (vii) such assignee agrees
that it will perform in accordance with their terms all of the obligations which
by the terms of this Agreement are required to be performed by it as a Lender or
Issuing Bank, as the case may be.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Administrative Agent and the Lender Parties may treat each Person
whose name is recorded in the Register as a Lender Party hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Lender Party at any reasonable time and from time to time
upon reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with any Note or Notes
subject to such assignment, the Administrative Agent shall, if such Assignment
and Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower. In the case of any assignment by a Lender, within five Business Days
after its receipt of such notice, the Borrower, at its own expense, shall
execute and deliver to the Administrative Agent in exchange for the surrendered
Note or Notes a new Note to the order of such Eligible Assignee in an amount
equal to the Commitment assumed by it under a Facility pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained a Commitment
hereunder under such Facility, a new Note to the order of the assigning Lender
in an amount equal to the Commitment retained by it hereunder. Such new Note or
93
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<PAGE>
Notes shall be in an aggregate principal amount equal to the aggregate principal
amount of such surrendered Note or Notes, shall be dated the effective date of
such Assignment and Acceptance and shall otherwise be in substantially the form
of Exhibit A-1 or A-2 hereto, as the case may be.
(f) The Issuing Bank may assign all of its rights and
obligations under the undrawn portion of its Letter of Credit Commitment at any
time; provided, however, that (i) each such assignment shall be to an Eligible
Assignee and (ii) the parties to each such assignment shall execute and deliver
to the Administrative Agent, for its acceptance and recording in the Register,
an Assignment and Acceptance, together with the processing and recordation fee
referred to in Section 8.07(a).
(g) Each Lender Party may sell participations to one or more
Persons (other than any Loan Party or any of its Affiliates) in or to all or a
portion of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the Advances owing to it and
the Note or Notes (if any) held by it); provided, however, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such obligations,
(iii) such Lender Party shall remain the holder of any such Note for all
purposes of this Agreement, (iv) the Borrower, the Administrative Agent and the
other Lender Parties shall continue to deal solely and directly with such Lender
Party in connection with such Lender Party's rights and obligations under this
Agreement, (v) the participant shall be entitled to the right of set-off
contained in Section 8.05 and the benefit of the yield protection provisions of
Section 2.10 and 2.12 and (vi) no participant under any such participation shall
have any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except to
the extent that such amendment, waiver or consent would reduce the principal of,
or interest on, the Notes or any fees or other amounts payable hereunder, in
each case to the extent subject to such participation, postpone any date fixed
for any payment of principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, or release all or substantially all of the Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time pledge, assign or create a security
interest in all or any portion of its rights under this Agreement (including,
without limitation, the Advances owing to it and the Note or Notes held by it)
in favor of (i) any Federal Reserve Bank in accordance with Regulation A of the
Board of Governors of the Federal Reserve System or (ii) to secure obligations
of such Lender Party; provided, that no such pledge or assignment or creation of
a security interest shall release a Lender Party from any of its obligations
hereunder or substitute any such pledgee or assignee for such Lender Party as a
party hereto.
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<PAGE>
SECTION 8.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.09. No Liability of the Issuing Bank. The Borrower
assumes all risks of the acts or omissions of any beneficiary or transferee of
any Letter of Credit with respect to its use of such Letter of Credit. Neither
the Issuing Bank nor any of its officers or directors shall be liable or
responsible for: (a) the use that may be made of any Letter of Credit or any
acts or omissions of any beneficiary or transferee in connection therewith; (b)
the validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the Letter of Credit; or (d) any other circumstances whatsoever in
making or failing to make payment under any Letter of Credit, except that the
Borrower shall have a claim against the Issuing Bank, and the Issuing Bank shall
be liable to the Borrower, to the extent of any direct, but not consequential,
damages suffered by the Borrower that the Borrower proves were caused by (i) the
Issuing Bank's willful misconduct or gross negligence in determining whether
documents presented under any Letter of Credit comply with the terms of the
Letter of Credit or (ii) the Issuing Bank's willful failure to make lawful
payment under a Letter of Credit after the presentation to it of a draft and
certificates strictly complying with the terms and conditions of the Letter of
Credit. In furtherance and not in limitation of the foregoing, the Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary.
SECTION 8.10. Confidentiality. Neither the Administrative
Agent nor any Lender Party shall disclose any Confidential Information to any
Person without the consent of the Borrower, other than (a) to the Administrative
Agent's or such Lender Party's Affiliates and their officers, directors,
employees, agents, legal counsel, accountants and other advisors and to actual
or prospective Eligible Assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process, (c) as requested or required by any state, federal or foreign authority
or examiner regulating banks, banking, insurance companies or insurance
(including, without limitation, the National Association of Insurance
Commisioners) and (d) to any direct or indirect contractual counterparty in swap
agreements or such contractual counterparty's professional advisor (so long as
such contractual counterparty or professional advisor to such contractual
counterparty agrees to be bound by the provisions of this Section 8.10).
SECTION 8.11. Jurisdiction, Etc. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, 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 any such
New York 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
NYDOCS03/100354
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95
<PAGE>
suit on the judgment or in any other manner provided by law. Nothing in this
Agreement shall affect any right that any party may otherwise have to bring any
action or proceeding relating to this Agreement or any of the other Loan
Documents in the courts of any jurisdiction.
(b) Each of the parties hereto 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 any of the
other Loan Documents to which it is a party in any New York 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.
SECTION 8.12. Governing Law. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State of
New York.
SECTION 8.13. Waiver of Jury Trial. Each of the Borrower, the
Administrative Agent and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances or the actions of any Agent or any Lender Party in the
negotiation, administration, performance or enforcement thereof.
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SECTION 8.14. Intercreditor Agreement. Each Lender Party
acknowledges and agrees to be bound by the terms of the Intercreditor Agreement
and authorizes the Administrative Agent to enter into the Intercreditor
Agreement on behalf of such Lender Party.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
APPLEBEE'S INTERNATIONAL, INC.
By------------------------
Title:
MERRILL LYNCH, PIERCE, FENNER &
SMITH INCORPORATED, as Arranger and as
Syndication Agent
By------------------------
Title:
THE FIRST NATIONAL BANK OF
CHICAGO, as Administrative Agent
By------------------------
Title:
NATIONSBANK, N.A., as Documentation
Agent
By------------------------
Title:
97
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<PAGE>
THE FIRST NATIONAL BANK OF
CHICAGO, as Initial Issuing Bank
By------------------------
Title:
Initial Working Capital Lenders
MERRILL LYNCH CAPITAL CORP.
By------------------------
Title:
THE FIRST NATIONAL BANK OF
CHICAGO
By------------------------
Title:
NATIONSBANK, N.A.
By------------------------
Title:
<PAGE>
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
By------------------------
Title:
BANK ONE, INDIANA, NA
By------------------------
Title:
TORONTO DOMINION (TEXAS), INC.
By------------------------
Title:
CHASE BANK OF TEXAS
By------------------------
Title:
UMB BANK, N.A.
By------------------------
Title:
<PAGE>
UNITED MISSOURI BANK, N.A.
By------------------------
Title:
LASALLE NATIONAL BANK
By------------------------
Title:
MERCANTILE BANK OF ST. LOUIS
By------------------------
Title:
THE FUJI BANK, LIMITED
By------------------------
Title:
BANQUE PARIBAS
By------------------------
Title:
DEEPROCK & COMPANY
By: Eaton Vance Management
as Investment Advisor
By------------------------
Title:
<PAGE>
DELANO COMPANY
By: Pacific Investment Management
Company, as its Investment Advisor
By------------------------
Title:
VAN KAMPEN AMERICAN CAPITAL
PRIME RATE INCOME TRUST
By------------------------
Title:
HELLER FINANCIAL, INC.
By------------------------
Title:
SANWA BUSINESS CREDIT CORPORATION
By------------------------
Title:
<PAGE>
Alliance Capital Management L.P.,
as Manager on behalf of ALLIANCE
CAPITAL FUNDING, L.L.C.
By: ALLIANCE CAPITAL MANAGEMENT
CORPORATION, General Partner of
Alliance Capital Management L.P.
By------------------------
Title:
PROTECTIVE INVESTMENT MANAGEMENT
COMPANY
By------------------------
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By------------------------
Title:
SANWA BUSINESS CREDIT CORPORATION
By------------------------
Title:
MERRILL LYNCH CAPITAL CORP.
By------------------------
Title:
<PAGE>
KZH-SOLEIL-2 CORPORATION
By------------------------
Title:
Initial Term Lenders
MERRILL LYNCH CAPITAL CORP.
By------------------------
Title:
[NAME OF INITIAL LENDER]
By------------------------
Title:
LASALLE NATIONAL BANK
By------------------------
Title:
[NAME OF INITIAL LENDER]
By------------------------
Title:
[ETC.]
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
THIS SCHEDULE CONTAINS SUMMARY FINANCIAL INFORMATION EXTRACTED FROM THE
COMPANY'S FORM 10-Q FOR THE QUARTER ENDED MARCH 29, 1998 AND IS QUALIFIED IN ITS
ENTIRETY BY REFERENCE TO SUCH FINANCIAL STATEMENTS.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 3-MOS
<FISCAL-YEAR-END> DEC-27-1998
<PERIOD-END> MAR-29-1998
<CASH> 14,818
<SECURITIES> 6,421
<RECEIVABLES> 18,362
<ALLOWANCES> 1,098
<INVENTORY> 4,513
<CURRENT-ASSETS> 44,965
<PP&E> 351,977
<DEPRECIATION> 73,186
<TOTAL-ASSETS> 380,612
<CURRENT-LIABILITIES> 78,330
<BONDS> 22,206
0
0
<COMMON> 318
<OTHER-SE> 278,120
<TOTAL-LIABILITY-AND-EQUITY> 380,612
<SALES> 129,758
<TOTAL-REVENUES> 146,603
<CGS> 111,391
<TOTAL-COSTS> 125,845
<OTHER-EXPENSES> 1,333
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 751
<INCOME-PRETAX> 19,061
<INCOME-TAX> 7,091
<INCOME-CONTINUING> 11,970
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 11,970
<EPS-PRIMARY> 0.39
<EPS-DILUTED> 0.39
</TABLE>
