UNITED STATES SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-K
(Mark One)
|X| ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE
ACT OF 1934
For the fiscal year ended December 30, 1996
----------------------------------------
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 33-66392
Houlihan's Restaurant Group, Inc.
(Exact name of registrant as specified in its charter)
Delaware 43-0913506
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
Two Brush Creek Boulevard, Kansas City, Missouri 64112
(Address of principal executive offices and zip code)
(816) 756-2200
(Registrant's telephone number, including area code)
Securities registered pursuant to Section 12(b) of the Act: None.
Securities registered pursuant to Section 12(g) of the Act: None.
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 requirements
for the past 90 days. Yes X No
Indicate by check mark if disclosure of delinquent filers pursuant to Item 405
of Regulation S-K is not contained herein, and will not be contained, to the
best of registrant's knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. [ ]
Indicate by check mark whether the registrant has filed all documents and
reports required to be filed by Section 12, 13 or 15(d) of the Securities
Exchange Act of 1934 subsequent to the distribution of securities under a plan
confirmed by a court. Yes X No
The aggregate market value of the registrant's stock held by non-affiliates as
of March 31, 1997 was $14,873,199 based upon the average bid and ask price on
March 31, 1997.
The number of shares of the registrant's common stock outstanding as of March
31, 1997 was 9,998,012.
1
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HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
FORM 10-K
FISCAL YEAR ENDED DECEMBER 30, 1996
INDEX
Page
PART I
Item 1. Business 3
Item 2. Properties 9
Item 3. Legal Proceedings 10
Item 4. Submission of Matters to a Vote of Security Holders 10
PART II
Item 5. Market for the Registrant's Common Stock and Related
Stockholder Matters 11
Item 6. Selected Financial Data 11
Item 7. Management's Discussion and Analysis of Financial Condition
and Results of Operations 13
Item 8. Financial Statements and Supplementary Data 19
Item 9. Changes in and Disagreements with Accountants on Accounting
and Financial Disclosure 19
PART III
Item 10. Directors and Executive Officers of the Registrant 20
Item 11. Executive Compensation 23
Item 12. Security Ownership of Certain Beneficial Owners and Management 26
Item 13. Certain Relationships and Related Transactions 27
PART IV
Item 14. Exhibits, Financial Statements and Reports on Form 8-K 28
Signatures 29
2
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PART I
Item 1. Business
General
Houlihan's Restaurant Group, Inc. and its wholly-owned subsidiary, Houlihan's
Restaurants, Inc. and its subsidiaries (the "Company") operates full service
casual dining restaurants in 23 states. At December 30, 1996, it operated 101
restaurants, including 62 Houlihan's, 28 Darryl's, four upscale Seafood
restaurants and seven specialty restaurants comprised of four dinnerhouses, two
upscale steakhouses and the Buena Vista Cafe (collectively, "Specialty"). At
that date, the Company also franchised 29 Houlihan's restaurants in eleven
states and the Commonwealth of Puerto Rico. The Company is a Delaware
corporation formed on May 31, 1968 and is the successor to a business founded in
1962 in Kansas City, Missouri. The restaurant business is the only business in
which the Company is engaged. Houlihan's Restaurant Group, Inc. does not engage
in any business or activity other than holding the capital stock of Houlihan's
Restaurants, Inc.
Overview of the Company's Restaurant Concepts
The Company's primary restaurant concepts are Houlihan's and Darryl's, which
operate in the casual dining segment of the restaurant industry. During 1996,
sales for these concepts comprised 67% and 22%, respectively, of the Company's
total sales. All of the Company's restaurants serve beer, wine and cocktails,
both in the restaurant areas and in the separate bar areas. Sales of alcoholic
beverages constituted 22% of the Company's net sales for the fiscal year ended
December 30, 1996.
Houlihan's. Founded in 1972 in Kansas City, Missouri, Houlihan's is the largest
of the Company's restaurant concepts with 62 stores located in 19 states,
primarily along the East Coast and in the Midwest. Also at December 30, 1996,
the Company franchised 29 Houlihan's restaurants in eleven states and the
Commonwealth of Puerto Rico.
Houlihan's is a well established national chain with a casual dining concept
catering to adult guests principally in the 25 to 49 age group. Houlihan's
prepares almost all of its menu items on the premises and is open seven days a
week, serving lunch, dinner and late dinner customers. The menu emphasizes
light-fare, traditional American cuisine items including a number of "signature"
dishes unique to Houlihan's and traditional staple items such as steaks, ribs
and seafood. Houlihan's has historically maintained an extensive drink menu
which has focused on standard specialty drinks as well as holiday oriented drink
specials. The average Houlihan's dinner guest check for the fiscal year ended
December 30, 1996 was $11.97.
The following table sets forth, for the periods indicated, information
concerning Company-owned Houlihan's:
1996 1995 1994 1993 1992
---- ---- ---- ---- ----
Number of Houlihan's:
Open at beginning of period ......... 61 56 53 51 59
Opened or converted during period ... 3 5 5 3(b) --
Closed or divested during period .... (2) -- (2) (1) (8)
--- --- --- --- ---
Open at end of period ........... 62 61 56 53 51
3
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1996(a) 1995 1994 1993 1992
---- ---- ---- ---- ----
Average sales per restaurant open for
full period (in thousands) ..... $3,097 $3,118 $3,148 $3,092 $3,114
Percentage increase (decrease) in
comparable restaurant sales .... (3.9)% (0.6)% 0.6% (1.7)% (1.4)%
- ----------------------
(a) Fiscal 1996 represents a 53-week period and accordingly, average sales per
restaurant was calculated based upon 53 weeks. The percentage increase
(decrease) in comparable restaurant sales was calculated by adjusting
fiscal 1995 to reflect a comparable number of weeks.
(b) Includes two Specialty restaurants which were closed and in the process of
being converted to Houlihan's.
Darryl's. As of December 30, 1996, the Company operated 28 Darryl's restaurants
located throughout eight states. Darryl's restaurants are primarily located in
the Southeastern U.S. and emphasize more traditional American menu items such as
steaks, barbecued ribs and hamburgers. The Company adopted a new strategy for
the concept in late 1995 that implemented a new menu emphasizing wood-fired
steaks. All steaks are Midwest grain-fed, hand-selected Black Angus beef aged
for tenderness then cooked over a wood grill. The new strategy required the
update of facilities with new wood burning grills as well as a new smallware
package in each restaurant. Darryl's restaurants are open seven days a week,
serving lunch, dinner and late dinner customers. Darryl's also prepares almost
all of its meals on the premises with local weekly specials catering to the
surrounding customer base. The average Darryl's dinner guest check for the
fiscal year ended December 30, 1996 was $12.22.
The following table sets forth, for the periods indicated, information
concerning Darryl's:
1996(a) 1995 1994 1993 1992
------ ------ ------ ------ -----
Number of Darryl's:
Open at beginning of period ..... 28 30 31 31 31
Opened or converted during period -- -- -- -- --
Closed or divested during period -- (2)(b) (1)(c) -- --
------ ------ ------ ------ -----
Open at end of period ....... 28 28 30 31 31
Average sales per restaurant open for
full period (in thousands) ...... $2,207 $2,178 $2,226 $2,302 $2,368
Percentage increase (decrease) in
comparable restaurant sales (0.9)% (3.6)% (3.7)% (2.8)% (4.0)%
- ----------------------
(a) Fiscal 1996 represents a 53-week period and accordingly, average sales per
restaurant was calculated based upon 53 weeks. The percentage increase
(decrease) in comparable restaurant sales was calculated by adjusting
fiscal 1995 to reflect a comparable number of weeks.
(b) Includes one Darryl's which was converted to J. Gilbert's in August 1995.
(c) Represents one Darryl's which was converted to a Houlihan's.
Seafood. The Company operates four Seafood restaurants under the names
"Bristol", "Braxton" and "Chequers." These restaurants target special occasion
and business entertainment diners by offering an extensive selection of seafood
and steaks, an upscale level of service and well-appointed facilities. The
Seafood restaurants, which are in locations where fresh seafood is not readily
available, feature an extensive selection of fresh seafood which is flown in
daily, including mesquite broiled fish, Maine
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lobster, crab, shrimp, scallops and regional daily specials. The restaurants are
open seven days a week, serving lunch, dinner and late dinner customers. The
average Seafood dinner guest check for the fiscal year ended December 30, 1996
was $24.24.
The following table sets forth, for the periods indicated, information
concerning the Seafood restaurants:
1996(a) 1995 1994 1993 1992
------ ------ ------ ------ ------
Number of Seafood restaurants:
Open at beginning of period ..... 3 4 4 4 6
Opened or converted during period 1 -- -- -- --
Closed or divested during period -- (1) -- -- (2)
------ ------ ------ ------ ------
Open at end of period ....... 4 3 4 4 4
Average sales per restaurant open for
full period (in thousands) ...... $4,159 $4,024 $4,070 $3,813 $3,668
Percentage increase (decrease) in
comparable restaurant sales 1.7% 4.9% 6.8% 3.9% 1.5%
- ----------------------
(a) Fiscal 1996 represents a 53-week period and accordingly, average sales per
restaurant was calculated based upon 53 weeks. The percentage increase
(decrease) in comparable restaurant sales was calculated by adjusting
fiscal 1995 to reflect a comparable number of weeks.
Specialty. The Company's Specialty restaurants consist of four dinnerhouses, two
J. Gilbert's and the Buena Vista Cafe. The dinnerhouses, which operate under the
names "Charley's Place" and "Phineas," compete in the high end of the casual
dining market, target special occasion diners, and feature full menus which
emphasize steak and prime rib and are open seven days a week, serving lunch,
dinner and late dinner customers. The average dinner guest check for the
dinnerhouses for the fiscal year ended December 30, 1996 was $14.06. J.
Gilbert's, the Company's newest concept, is positioned to compete in the higher
end of the steakhouse market. It features a menu that is printed daily and
specializes in Black Angus steaks, chicken and seafood. J. Gilbert's is open
seven days a week, serving dinner and late evening meals only. The average
dinner guest check for J. Gilbert's for the fiscal year ended December 30, 1996
was $23.10. The Buena Vista Cafe, located near Fisherman's Wharf in San
Francisco, California, is known for having introduced the Irish Coffee drink in
the United States and sales of Irish Coffee represent a significant portion of
its sales.
The following table sets forth, for the periods indicated, information
concerning the Specialty restaurants:
1996(a) 1995 1994 1993 1992
------ ------ ------ ------ ------
Number of Specialty restaurants:
Open at beginning of period ..... 6 5 5 7 7
Opened or converted during period 1 1(b) -- -- --
Closed or divested during period -- -- -- (2)(c) --
------ ------ ------ ------ ------
Open at end of period ....... 7 6 5 5 7
Average sales per restaurant open for
full period (in thousands) ...... $2,225 $2,277 $2,311 $2,258 $2,227
Percentage increase (decrease) in
comparable restaurant sales (4.2)% (1.5)% 2.4% 1.5% 1.5%
5
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- ----------------------
(a) Fiscal 1996 represents a 53-week period and accordingly, average sales per
restaurant was calculated based upon 53 weeks. The percentage increase
(decrease) in comparable restaurant sales was calculated by adjusting
fiscal 1995 to reflect a comparable number of weeks.
(b) Represents one restaurant which was converted to J. Gilbert's from
Darryl's.
(c) Represents two restaurants which were closed and in the process of
conversion to Houlihan's.
Business Development
Houlihan's Franchise Program. The Company has been rapidly expanding the number
of Houlihan's locations through an aggressive franchising program. The Company
intends to expand its franchising activities primarily in areas where it does
not currently operate Company-owned Houlihan's restaurants. Franchising allows
the Company to increase customer awareness nationwide, improve operating
efficiencies and provides an important source of additional revenues.
As of December 30, 1996, the Company had signed 20 franchise development
agreements that provide for the development of 106 Houlihan's over a six-year
period, including the 29 open restaurants. The Company expects to sign three to
four new agreements in 1997 and expects that seven to nine more franchise
locations will open in 1997.
The Company's standard franchise agreement has a 20-year term, with four
five-year renewal options, and provides for a payment to the Company of a
one-time development fee of $10,000 per restaurant, an initial franchise fee of
$35,000 per restaurant, a continuing royalty fee at a rate of 4% of gross sales
and an advertising fee currently being charged at a rate of .5% of gross sales.
Under the standard franchise agreement, the franchisees must operate their
restaurants in accordance with the Company's operational standards and each
franchisee is required to spend 1.0% of its gross sales for local advertising.
J. Gilbert's Franchise Program. The franchise program for J. Gilbert's is
currently in the developmental stage and pending completion of offering
materials, franchises are only being offered to select existing franchisees on a
limited basis. Currently, the Company has entered into a letter of intent with
an existing franchisee for the development of one restaurant.
Seafood Expansion. The Company believes that its seafood concept provides a very
profitable growth opportunity. The Company plans to open one new Seafood
restaurant in the Atlanta market during 1997 and to increase expansion of the
concept in future years.
The Company believes it has a sufficient number of qualified restaurant managers
that will enable it to meet its expansion goals without compromising quality.
The Company will designate managers of new restaurants by drawing on the pool of
managers at existing restaurants. In this way, the Company will maintain its
high standards by utilizing managers who have a proven track record with the
concept. The Company has also designated a team of employees responsible for
opening new locations (Company- owned and franchise), including the hiring and
training of kitchen personnel and other individuals who will serve as hosts,
waiters/waitresses, bartenders and restaurant managers. In addition, the Company
has its own construction and design group with overall responsibilities for
restaurant design and construction management. Management believes this group
reduces the required investment in new restaurants and provides considerable
assistance to franchisees.
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The Company believes that its ability to select high profile restaurant sites is
critical to its success. The Company has developed a customer profile for each
restaurant concept based on the demographics and dining habits of its existing
customer base. The Company utilizes a lifestyle and demographics software system
in combination with several other factors in the site selection process,
including local market demographics, site visibility, aesthetics, accessibility
and proximity to significant generators of potential guests such as major retail
centers, office complexes, hotel concentrations and entertainment facilities
including sports arenas and theaters. As of December 30, 1996, the Company had
secured all the sites for anticipated new restaurants in 1997 and has begun
working on sites for 1998.
Management and Employees
The Company strives to maintain quality and consistency in its restaurants
through the careful training and supervision of personnel and the establishment
of standards relating to food and beverage preparation and presentation, alcohol
service, maintenance of facilities, sanitation, safety, recordkeeping and
employee relations.
Each restaurant has a general manager and two to five assistant managers,
depending on the size of the restaurant. The Company has 18 area directors that
are responsible for the overall operations of four to eight restaurants in a
particular geographic region. Additionally, the area directors have oversight
responsibilities for any franchise restaurants in their designated region. Each
of the Houlihan's area directors report to one of two regional vice presidents.
The Company provides its management with ongoing training tools and programs
designed to help enhance employee knowledge of menu items, sales techniques and
guest service. Management of the Company's franchise restaurants also take part
in the various management training programs. Training teams enlisted from among
the Company's most qualified and experienced employees provide one-on-one
instruction to the staff of new Company-owned and franchise restaurants.
At December 30, 1996, the Company employed 8,061 persons, of whom 7,921 were
restaurant employees and 140 were corporate personnel. Of the restaurant
employees, 514 performed managerial functions. Except for restaurant management
and most corporate personnel, employees are paid on an hourly basis.
Approximately 45% of the Company's employees were employed on a part-time basis
(25 hours or less per week).
The Company believes it provides working conditions and wages that compare
favorably with those offered by its competitors and its relations with employees
are good. The Company also believes that its management turnover is
significantly better than the industry norms, while its direct labor (hosts,
servers, chefs, etc.) turnover is consistent with industry standards. The
Company has a collective bargaining agreement with one union covering certain
employees of the Buena Vista Cafe.
Purchasing
In order to provide uniform quality and obtain competitive pricing, the
corporate purchasing department monitors and purchases major commodities such as
beef, pork, poultry and seafood products and negotiates and administers national
and regional contracts for various items. As the prices of certain of these
products vary significantly based on seasonal and market supply/demand factors,
the purchasing department often enters into forward purchase agreements to
secure advantageous pricing. Each restaurant typically purchases bakery products
and supplies and other perishable items from local vendors or through
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the Company's arrangements with national distributors. The Company purchases
produce on a regional basis. Franchise restaurants are required to use suppliers
that are pre-approved by the Company in order to maintain quality control.
Advertising
The Company believes that the food, service and decor offered by its restaurants
provides its best advertising, and it relies principally upon satisfied guests
to promote its restaurants by word-of-mouth. In addition, the Company uses a
certain amount of radio and newspaper advertising in selected markets, runs
print advertisements in several travel and entertainment magazines and engages
in limited promotional activities before opening a new restaurant. Throughout
1996 the Company utilized quarterly promotional campaigns that incorporated a
market-specific media mix. The campaigns included television in certain markets.
During 1995, the Company entered into a ten-year agreement for the right to name
the Tampa Bay Buccaneer football team's stadium "Houlihan's Stadium". The
agreement provides the Company with advertising rights inside the stadium and in
Tampa Bay Buccaneer programs and brochures. See "Certain Relationships and
Related Transactions".
Competition
The restaurant business is highly competitive and the competition can be
expected to increase. Price, restaurant location, food quality, service and
attractiveness of facilities are important aspects of competition, and the
competitive environment is often affected by factors beyond the Company's or a
particular restaurant's control. These factors include changes in the public's
dining habits, population and traffic patterns and local economic conditions.
The Company and its franchisees compete with a wide variety of restaurants,
ranging from national and regional restaurant chains to locally-owned
restaurants, some of which have greater financial resources than the Company.
There is also active competition for management personnel and hourly restaurant
employees, as well as intense competition for attractive commercial real estate
sites suitable for restaurants.
Government Regulation
Each of the Company's restaurants is subject to federal, state and/or local laws
and regulations governing health, sanitation and safety and the sale of
alcoholic beverages. The selection of new restaurant sites is affected by
federal, state and local laws and regulations regarding environmental matters,
zoning and land use. The Company has not encountered any difficulties or
failures in obtaining necessary licenses and approvals that could delay or
prevent new restaurant openings and does not, at this time, anticipate any.
The Company is subject to a variety of federal and state laws that regulate the
sale of franchises and the franchise relationship. Generally, these laws and
regulations impose certain disclosure and registration requirements prior to the
sale and marketing of franchises. These laws and regulations have not had a
material effect on the Company's franchise operations.
The Company's employment practices are subject to various governmental
employment regulations which regulate such matters as minimum wage, overtime,
immigration and other working conditions. Approximately 53% of the Company's
employees as of December 30, 1996 were paid at rates tied to the
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minimum wage. The Company is also subject to the Americans With Disabilities Act
and various family leave mandates.
Trade and Service Marks
The Company owns a number of trade and service marks used in conjunction with
its business. The following trade and service marks are among those owned by the
Company: Houlihan's(R), Darryl's(R), Charley's Place(sm), Phineas(sm), J.
Gilbert's(sm), The Buena Vista(R) and Braxton Seafood Grill & Chophouse(R). In
addition, the Company is entitled to limited use of the service mark Bristol Bar
& Grill(sm) in the St. Louis and Kansas City areas and has obtained the use of
the service mark Chequers Bar & Grill(sm) under license from Checkers of North
America.
The Company has registered with state and federal authorities and will continue
to register, or renew the registration of, those trade and service marks it
deems important to the continued operation and recognition of its restaurant
businesses. The Company regards its service marks and logos as important to the
identification of its restaurants and believes they have significant value in
the conduct of its business. The Company's policy is to utilize marks when
appropriate, to pursue registration of its marks whenever possible and to
vigorously oppose infringement activities that might diminish the value of its
marks.
Item 2. Properties
As of December 30, 1996, the Company owned the land and buildings on and in
which it operates 25 restaurants, owned the buildings and leased the land for
three restaurants and leased 73 restaurants. The Company's restaurants are
approximately 8,500 square feet on average, and they have been open an average
of 10.8 years as of December 30, 1996. The Company's 25 owned properties consist
of three Houlihan's, 20 Darryl's and two Specialty restaurants. Substantially
all owned and leased properties are mortgaged as collateral under the Company's
bank credit agreement (the "Bank Credit Agreement").
The leases for the Company's open and operating restaurants generally provide
for an initial term from ten to twenty years and renewal options of five to
twenty-five years. The leases generally provide for payment of a fixed rental
and, in most cases, percentage rentals based on sales.
The Company leases approximately 35,000 square feet in a building in Kansas
City, Missouri, which houses its corporate headquarters. The Company also leases
a facility in Kansas City, Missouri, which contains approximately 22,000 square
feet, which is utilized to manufacture, refurbish, warehouse and distribute
restaurant furnishings and decor items.
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The following table sets forth the jurisdiction in which both the Company-owned
restaurants and franchise restaurants are located and the number of restaurants
in each as of December 30, 1996:
<TABLE>
Company-Owned
------------------------------------------------------------------------ Franchise
Houlihan's Darryl's Seafood Specialty Total Houlihan's
----------- ----------- ----------- ----------- ----------- -----------
<S> <C> <C> <C> <C> <C> <C>
Alabama - 3 - - 3 -
Arizona 3 - - - 3 -
California 3 - - 1 4 -
Colorado 1 - - - 1 2
Connecticut 1 - - 2 3 -
Florida 2 3 - - 5 -
Georgia 5 - 1 - 6 2
Illinois 6 - 1 - 7 -
Indiana 1 1 - - 2 2
Kansas 2 - 1 1 4 -
Kentucky - 2 - - 2 -
Maryland 1 - - 1 2 -
Massachusetts 4 - - - 4 -
Michigan 2 - - - 2 -
Missouri 6 1 1 - 8 -
Nevada - - - - - 1
New Jersey 7 - - - 7 -
New York 3 - - - 3 11
North Carolina - 11 - - 11 2
North Dakota - - - - - 1
Ohio 3 - - - 3 2
Oregon - - - - - 1
Pennsylvania 10 - - 1 11 -
South Carolina - - - - - 1
Tennessee - 3 - - 3 -
Virginia 1 4 - 1 6 -
Wisconsin 1 - - - 1 3
Puerto Rico - - - - - 1
----------- ----------- ----------- ----------- ----------- -----------
62 28 4 7 101 29
=========== =========== =========== =========== =========== ===========
</TABLE>
Item 3. Legal Proceedings
The Company is subject to various claims and pending legal actions arising in
the normal course of business. Management believes that the final disposition of
these claims and pending actions will not have a material adverse effect,
individually or in the aggregate, on the business or the financial position of
the Company.
Item 4. Submission of Matters to a Vote of Security Holders
None.
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PART II
Item 5. Market for Registrant's Common Stock and Related Stockholder Matters
The Company's common stock is traded on the over-the-counter ("OTC") market
under the symbol "HOUL". There has been limited public trading on the OTC of the
Common Stock. Bid quotations reflect interdealer prices, without retail mark-up,
mark-down or commission and may not necessarily represent actual transactions.
The following table sets forth the quarterly high and low bid quotations of the
Common Stock, as reported by the OTC Bulletin Board.
High Low
------------- -------------
Fiscal year ended December 30, 1996:
First Quarter $ 5 1/2 $ 3 7/8
Second Quarter 6 3/4 4 15/16
Third Quarter 7 1/4 6 3/4
Fourth Quarter 7 1/4 5
Fiscal year ended December 25, 1995:
First Quarter $ 8 1/2 $ 6 1/2
Second Quarter 8 7/8 8 1/2
Third Quarter 8 7/8 7 1/8
Fourth Quarter 7 1/8 4 1/2
As of December 30, 1996, there were less than 50 stockholders of record.
Holders of the Company's common stock are entitled to receive dividends when, as
and if declared by the Company's Board of Directors out of funds legally
available therefor. However, the ability of Houlihan's Restaurants, Inc., to
declare and pay dividends to Houlihan's Restaurant Group, Inc. is restricted by
the terms of the Bank Credit Agreement to 35% of the cash flow in excess of
certain amounts as set forth in the Bank Credit Agreement. As of December 30,
1996, the Company has not paid any dividends and does not anticipate the payment
of cash dividends in the foreseeable future.
Item 6. Selected Financial Data
The following selected Statement of Income data and Balance Sheet data for the
periods indicated has been derived from the Consolidated Financial Statements of
Houlihan's Restaurant Group, Inc. and Subsidiary. Such financial statements have
been audited by Deloitte & Touche LLP, independent certified public accountants.
The information below should be read in conjunction with "Management's
Discussion and Analysis of Financial Condition and Results of Operations" and
the Consolidated Financial Statements of the Company and notes thereto included
elsewhere in this Form 10-K.
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<TABLE>
SELECTED CONSOLIDATED FINANCIAL DATA
(Dollars in thousands, except per share amounts)
Fiscal Year Ended (a)
---------------------------------------------------------------
December 30, December 25, December 26, December 27, December 28,
1996 1995 1994 1993 1992
---------- ---------- ---------- ---------- -----------
Statement of Income Data:
<S> <C> <C> <C> <C> <C>
Net sales $ 274,836 $ 267,622 $ 259,367 $ 257,225 $ 266,532
Cost of sales, including operating expenses
(exclusive of depreciation and amortization
shown separately) 229,751 222,375 215,562 208,532 228,926
----------- ----------- ----------- ----------- -----------
Gross profit 45,085 45,247 43,805 48,693 37,606
Depreciation and amortization 15,506 14,865 16,245 19,610 18,428
General and administrative expenses 16,590 16,938 17,176 17,736 15,038
Loss on disposition of properties, net 344 605 847 624 601
Interest expense 6,973 8,189 6,562 6,428 10,242 (b)
Other (income), net (4,722) (3,531) (2,883) (2,700) (3,606)
Merger expense 1,105 (c) - - - -
Reorganization items and restructuring costs - - - - 3,612
Income tax provision (benefit) 4,092 3,916 2,900 4,026 (1,173)
----------- ----------- ----------- ----------- -----------
Income (loss) before extraordinary item 5,197 4,265 2,958 2,969 (5,536)
Extraordinary gain on discharge of prepetition
liabilities - - - - 31,031
----------- ----------- ----------- ----------- ------------
Net income $ 5,197 $ 4,265 $ 2,958 $ 2,969 $ 25,495
=========== =========== =========== =========== ============
Earnings per common and common equivalent
share (d) $ 0.52 $ 0.43 $ 0.30 $ 0.30 $ -
=========== =========== =========== =========== ============
Weighted average common and common equivalent
shares (d) 10,045,762 10,032,254 10,012,928 9,998,012 -
=========== =========== =========== =========== ============
Balance Sheet Data:
Working capital deficit $ (6,182) $ (15,494) $ (12,270) $ (9,220)$ (8,947)
Total assets 195,675 191,016 192,508 204,235 197,301
Total debt, including capitalized leases 79,729 83,981 89,553 99,997 103,276
Stockholders' equity 75,389 70,192 65,927 62,969 60,000
Other Financial Data:
Capital expenditures $ 13,582 $ 14,626 $ 17,814 $ 10,521 $ 7,978
</TABLE>
- -------------------------
(a) Unless otherwise indicated, references herein to years pertain to the
Company's 52- or 53- week fiscal years ending the last Monday in
December. All fiscal years presented were 52-week fiscal years, with
the exception of fiscal 1996, which consisted of 53-weeks. The year
ended December 28, 1992 reflects a predecessor period in which the
Company underwent a reorganization which was completed December 28,
1992.
(b) From November 1991 to December 1992, interest expense attributable to
senior subordinated notes was stayed resulting in a decrease in
interest expense of $11,767 for 1992.
(c) See discussion at "Liquidity and Capital Resources".
(d) Earnings per common share for fiscal year 1992 is not meaningful due to
reorganization and revaluation entries and the significant changes in
the Company's capital structure upon its reorganization which was
completed December 28, 1992.
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Item 7. Management's Discussion and Analysis of Financial Condition and Results
of Operations
General
The following discussion and analysis should be read in conjunction with the
Consolidated Financial Statements and Notes thereto included elsewhere in this
Form 10-K. The information contained herein includes certain forward looking
information regarding restaurant openings, operating margins, capital
requirements, cash flow from operations and assumptions regarding the
availability of new credit facilities. This forward looking information could be
affected by changes in monetary and fiscal policies, laws and regulations, and
social and economic conditions, such as inflation or a recession, increased
competition in the restaurant industry, the current trend towards "dining out"
and the amount, type and cost of financing available to the Company.
The Company reports fiscal year results of operations based on 52- or 53-week
periods. The fiscal year ended December 30, 1996 was a 53-week fiscal year and
the fiscal years ended December 25, 1995 and December 26, 1994 were 52-week
fiscal years and are referred to hereafter as 1996, 1995 and 1994, respectively.
The following table sets forth, for the periods indicated, information derived
from the Consolidated Financial Statements of the Company (dollars in
thousands). All percentages contained in the table below are percentages of net
sales for the period indicated.
<TABLE>
1996 1995 1994
------------------- ------------------- -------------------
Amount Percent Amount Percent Amount Percent
--------- ------- --------- ------- --------- -------
<S> <C> <C> <C> <C> <C> <C>
Net sales ............................ $ 274,836 100.0% $ 267,622 100.0% $ 259,367 100.0%
Cost of sales:
Food and bar costs ................ 80,741 29.4 78,363 29.3 76,329 29.4
Labor costs ....................... 86,196 31.4 85,351 31.9 83,186 32.1
Operating expenses (exclusive of
depreciation and amortization) .. 62,814 22.8 58,661 21.9 56,047 21.6
--------- ------- --------- ------- --------- -------
Total cost of sales ........... 229,751 83.6 222,375 83.1 215,562 83.1
--------- ------- --------- ------- --------- -------
Gross profit .................. 45,085 16.4 45,247 16.9 43,805 16.9
Depreciation and amortization ........ 15,506 5.6 14,865 5.5 16,245 6.3
General and administrative expenses .. 16,590 6.0 16,938 6.3 17,176 6.6
Loss on disposition of properties, net 344 0.1 605 0.2 847 0.3
Other (income), net .................. (4,722) (1.6) (3,531) (1.3) (2,883) (1.1)
Interest expense ..................... 6,973 2.5 8,189 3.1 6,562 2.6
Merger expense ....................... 1,105 0.4 -- -- -- --
Income tax provision ................. 4,092 1.5 3,916 1.5 2,900 1.1
--------- ------- --------- ------- --------- -------
Net income .................... $ 5,197 1.9 % $ 4,265 1.6 % $ 2,958 1.1 %
========= ======= ========= ======= ========= =======
</TABLE>
13
<PAGE>
Fiscal 1996 Compared with Fiscal 1995
Net sales for 1996 increased $7,214,000, or 2.7% from $267,622,000 in 1995 to
$274,836,000 in 1996. The increase was primarily due to sales generated by ten
new restaurants that were opened during 1995 and 1996 and one Darryl's
restaurant that was converted to a Specialty restaurant in 1995. The new
restaurants included eight Houlihan's, one Seafood restaurant and one Specialty
restaurant. Additionally, fiscal 1996 consisted of 53 weeks as compared to
fiscal 1995, which consisted of 52 weeks. The increase in sales was offset by a
decrease in comparable restaurant sales of $7,531,000 or 2.9% and a decrease of
$4,252,000 due to the closing of two restaurants in 1996 and two in 1995.
"Comparable restaurants" are restaurants open throughout fiscal years 1995 and
1996. Comparable sales for fiscal year 1995 were adjusted to reflect the same
number of weeks as fiscal year 1996. The increases (decreases) in comparable
restaurant sales as adjusted, by concept, from 1995 to 1996 were as follows:
Food Bar Total
-------- -------- --------
Houlihan's (3.1)% (6.1)% (3.9)%
Darryl's (0.9)% (1.0)% (0.9)%
Seafood 1.2 % 3.8 % 1.7 %
Specialty (5.1)% (2.4)% (4.2)%
Total (2.4)% (4.6)% (2.9)%
Cost of sales as a percentage of net sales increased during 1996 to 83.6% as
compared to 83.1% in 1995. Cost of sales are composed of three major items: food
and bar costs, labor costs and operating expenses.
Combined food and bar costs increased slightly during 1996 primarily due to cost
increases associated with the new menu that was implemented in the Darryl's
concept during the first quarter. The new menu, which emphasizes quality
wood-fired steaks, was in place in all Darryl's restaurants by April 1996. Due
to the shift in the menu mix to higher priced items such as steak, food cost was
impacted by the increased cost of beef during the year.
Labor costs as a percent of net sales decreased in 1996 as compared to 1995
primarily due to cost savings realized from new labor scheduling systems that
were implemented in a majority of the Company's restaurants. The new systems
rely on estimated guest counts based upon historical information to assist
restaurant management in scheduling employees in the most efficient manner
possible. The systems are currently in place in all of the Company's Houlihan's
and Darryl's restaurants.
Operating expenses increased to 22.8% in 1996 from 21.9% in 1995 primarily due
to increases in promotional expenses. During the first three quarters of 1996,
the Company tested various advertising promotions in selected markets using
radio, print, billboard and television. Additionally, promotional expenses
increased due to the amortization of costs associated with the agreement for the
right to name the Tampa Bay Buccaneer football team's stadium "Houlihan's
Stadium".
Depreciation and amortization expense as a percentage of net sales increased
during 1996 due to increased capital expenditures from new unit construction and
ongoing restaurant renovation and replacements.
General and administrative expenses as a percent of sales decreased to 6.0% in
1996 from 6.3% in 1995. The decrease was primarily attributable to approximately
$600,000 of expenses incurred in the prior year associated with a debt
registration that was withdrawn by the Company during 1995 due to unfavorable
14
<PAGE>
developments in the high-yield financing market. The decrease was partially
offset by increasing costs associated with the continuing rapid growth of the
Company's franchise program, the most significant expense of which related to
the training teams associated with franchise restaurant openings. During 1996,
eleven franchise Houlihan's were opened as compared to 1995, in which seven
franchise Houlihan's were opened.
Other income increased during 1996 primarily as a result of an increase in
franchise revenues over the prior year. As of December 30, 1996, the Company
franchised 29 restaurants and had signed agreements with 20 franchise
development groups providing for the development of an aggregate of 77
additional Houlihan's over a five to six year period.
Interest expense decreased in 1996 compared to 1995 due to lower interest rates
during the year, as well as a lower outstanding debt balance. The weighted
average interest rate on the Company's outstanding bank debt was 7.5% in 1996 as
compared to 8.5% for 1995.
Merger expenses consisted primarily of professional fees related to the
terminated merger of the Company with Zapata Corporation. See "Liquidity and
Capital Resources".
The effective income tax rate, as a percentage of earnings before income taxes,
was 44% for 1996, compared to 48% for 1995. The lower effective rate was a
result of the increase in pretax income in relation to the fixed amortization of
the reorganization value in excess of amounts allocable to identifiable assets.
Net income increased by $932,000 to $5,197,000 in 1996 from $4,265,000 in 1995
due to the factors discussed above.
Fiscal 1995 Compared with Fiscal 1994
Net sales for 1995 increased $8,255,000, or 3.2%, to $267,622,000 from
$259,367,000 in 1994. The increase in net sales was due to sales of $17,780,000
generated by five new restaurants and one conversion opened in 1995, four new
restaurants opened in 1994 and three restaurants that were converted to
Houlihan's from other concepts in 1994. The increase in sales was offset by a
decrease in comparable restaurant sales of $2,899,000, or 1.2%, and a decrease
of $6,626,000 due to the closing of two restaurants in 1995 and two in 1994.
"Comparable restaurants" are restaurants open throughout fiscal years 1994 and
1995. The increases (decreases) in comparable restaurant sales, by concept, from
1994 to 1995 were as follows:
Food Bar Total
-------- -------- --------
Houlihan's 0.5 % (4.0)% (0.6)%
Darryl's (3.6)% (3.7)% (3.6)%
Seafood 6.1 % (0.5)% 4.9 %
Specialty (0.3)% (3.8)% (1.5)%
Total (0.4)% (3.8)% (1.2)%
The decrease in total comparable restaurant sales for the Company from 1994 to
1995 reflects a 0.4% decrease in food sales and a 3.8% decrease in sales of
alcoholic beverages. The percentage of the Company's net sales generated by the
sale of alcoholic beverages in 1995 remained consistent with 1994
15
<PAGE>
at 23%. The Company has implemented several strategies to improve and/or
maintain alcoholic beverage sales in consideration of a continuing industry-wide
declining trend in customer drinking habits. These strategies included offering
several micro-brewery beer products, a new drink menu and various local
promotions.
Cost of sales as a percentage of net sales remained consistent with 1994 at
83.1% Cost of sales are composed of three major items: food and bar costs, labor
costs and operating expenses.
Combined food and bar costs were 29.3% and 29.4% of net sales in 1995 and 1994,
respectively. The decrease was due to favorable poultry and dairy prices during
1995, as well as a menu price increase which became effective in the fourth
quarter of 1995.
Labor costs improved to 31.9% of sales in 1995 from 32.1% of net sales in 1994.
The decrease was primarily due to the implementation of new labor scheduling
systems in eleven of the Company's restaurants. The new systems rely on
estimated guest counts based upon historical information to assist restaurant
management in scheduling employees in the most efficient manner possible. The
new systems should be fully implemented in all of the Company's restaurants by
the second quarter of 1996.
Operating expenses as a percentage of net sales increased 0.3% to 21.9% in 1995
from 21.6% in 1994. The increase is due primarily to rent increases in several
of the Company's restaurants. Approximately 71% of the Company's restaurants are
leased. Additionally, paper goods and supplies increased due to new packaging
for the "To Go" and delivery service sales, which increased in volume during
1995.
Depreciation and amortization expense decreased to $14,865,000 from $16,245,000
during the year due to an increased number of assets which are
fully-depreciated. The decrease is also due, in part, to the closing of two
restaurants during the first quarter of 1995.
General and administrative expenses decreased $238,000, or 1.4%, to $16,938,000
in 1995 from $17,176,000 in 1994. The decrease is a result of cost savings
associated with a staff and procedural restructuring in January 1995. The
restructuring was undertaken to improve the efficiency and productivity of the
overhead and support areas of the Company. The savings were partially offset by
approximately $600,000 of expenses associated with a registration statement that
was withdrawn by the Company during 1995 due to unfavorable developments in the
high-yield financing market.
Other income increased to $3,531,000 in 1995 from $2,883,000 in 1994 primarily
due to a 47% increase in franchise income as a result of an increase in royalty
income and the recognition of franchise fees associated with opening seven new
franchise restaurants during 1995.
Interest expense for 1995 increased to $8,189,000 from $6,562,000 in 1994 due to
higher interest rates related to the Company's bank debt during 1995. The
weighted average interest rate related to the Company's bank debt was 8.5% for
1995 as compared to 7.0% for 1994. Also, additional interest expense was
incurred related to the $7,000,000 the Company borrowed on its Revolving Credit
Facility during the year, of which all but $1,000,000 was repaid by year end.
The effective income tax rate was 48% for 1995 and 50% for 1994. The decrease in
the effective rate is due primarily to the increase in pre-tax book income of
$2,323,000.
16
<PAGE>
Net income increased $1,307,000 to $4,265,000, or 1.6% of sales, from
$2,958,000, or 1.1% of sales, in 1994 primarily due to increased sales and
stable cost of sales. Earnings per common and common equivalent share increased
to $0.43 in 1995 from $0.30 due to the factors discussed above.
Liquidity and Capital Resources
At December 30, 1996, the Company had cash and cash equivalents of $15,620,000
and a working capital deficiency of $6,182,000. The Company relies principally
upon internally generated funds to finance its restaurant operations and to fund
working capital expenditures. Historically, the Company has operated with
working capital deficiencies. The Company's ability to operate with such
deficiencies is due to the nature of the restaurant business, which does not
require significant investments in accounts receivable or inventories and which
generally allows the procurement of food and supplies on trade credit.
The Company's bank credit agreement contains various covenants and restrictions
which, among other things, require the maintenance of minimum fixed charge
coverage ratios and interest coverage ratios. The Company did not maintain the
required interest coverage ratio for the first and second quarters of 1996 and
as a result, the Bank Credit Agreement was amended to revise certain covenants
of the agreement on March 25, 1996 (the "Second Amendment") and June 24, 1996
(the "Third Amendment"). The Company also did not maintain the required fixed
charge ratio for the second and third quarters of 1996, which was remedied by
the Third Amendment, as well as by another amendment to the Bank Credit
Agreement dated November 1, 1996 (the "Fourth Amendment").
At December 30, 1996, the Company had $27,000 available to it under the
$12,500,000 Revolving Credit Facility, reduced by $4,523,000 of outstanding
standby letters of credit and a $7,950,000 outstanding loan. Pursuant to the
Third Amendment, the aggregate Revolving Credit Facility commitment was reduced
to $12,500,000 from $15,000,000 on October 1, 1996. During March 1997, two
outstanding standby letters of credit were drawn by the beneficiaries, resulting
in the Company borrowing $676,646 on March 18, 1997 and $3,475,000 on March 24,
1997 on its Revolving Credit Facility. The borrowings increased the outstanding
loans under the Revolving Credit Facility to $12,101,646 which was subsequently
refinanced (see "New Credit Facility").
The Company's capital expenditures totaled $13,582,000, $14,626,000 and
$17,814,000 in 1996, 1995 and 1994, respectively. Current year expenditures were
incurred for three new Houlihan's, one new Seafood restaurant and one Specialty
restaurant that were opened during the year, as well as ongoing remodeling
projects, normal restaurant renovations and replacements and the installation of
new management information systems in the Company's restaurants, which was
completed in the second quarter. The Company expects to incur capital
expenditures of approximately $11,000,000 in 1997, a majority of which will be
used for remodeling projects and normal restaurant maintenance, as well as the
opening of one Seafood restaurant. Management believes that cash on hand, funds
to be generated internally from operations and the use of working capital
changes will be adequate to meet the Company's capital expenditure requirements
for the foreseeable future.
The Company entered into a merger agreement on June 4, 1996 with Zapata
Corporation ("Zapata"), which provided for Zapata's acquisition of the Company
for a combination of cash and stock valued at $8.00 per share. At that time,
approximately 35% of Zapata's outstanding shares of common stock were owned by
the Glazer Group, which owns approximately 73% of the Company's outstanding
stock at December 30, 1996. The agreement was terminated on October 8, 1996
pursuant to its terms. The
17
<PAGE>
termination followed the decision of the Delaware Chancery Court that a vote of
80% of the Zapata stockholders would be required to approve the merger.
Approximately $1,105,000 of expenses were incurred by the Company resulting from
the above transaction.
On March 31, 1997, the Bank Credit Agreement was amended (the "Fifth Amendment")
to extend the maturity date of all of its outstanding bank debt to May 15, 1997.
The new maturity date allowed for the closing of a new $90 million secured
credit facility (see "New Credit Facility"). Additionally, the Fifth Amendment
revised the required fixed charge coverage ratio for the fourth quarter of 1996.
The Company also made two payments on the Term Loan consisting of a scheduled
principal payment of $5,500,000 on March 31, 1997 and a Net Cash Proceeds
payment (as defined in the Bank Credit Agreement) of $129,000 on April 4, 1997.
As a result, the Company remains in compliance with all covenants of its current
bank credit agreement as amended.
New Credit Facility
The Company signed a new credit agreement and obtained a new $90,000,000 bank
credit facility on April 15, 1997. The new credit facility consists of a senior
bank term loan facility and a senior bank revolving credit facility. The term
loan facility consists of a five-year tranche A term loan in the principal
amount of $20,000,000 and a seven-year tranche B term loan in the principal
amount of $55,000,000. The tranche A loan requires annual amortization of
$4,000,000 and the tranche B loan requires annual amortization of $550,000 for
the first five years and $26,125,000 in the sixth and seventh years. All
amortization on the term loans is to be paid in equal quarterly installments.
The five-year revolving credit facility in the principal amount of $15,000,000
includes a $5,000,000 swingline facility. The revolving credit facility will be
available to provide for the working capital requirements and general corporate
purposes of the Company and provides for letters of credit up to $10,000,000.
The Company had no amounts outstanding under the revolving credit facility as of
April 15, 1997. The proceeds from the new credit facility of $75,000,000, along
with $585,000 of the Company's existing unrestricted cash, were used to repay
and permanently retire $75,585,000 of the existing bank indebtedness at April
15, 1997.
The new credit facility also allows the Company to raise up to $30,000,000 by
entering into a sale leaseback transaction of its owned restaurant properties.
The Company is exploring this option as a financing alternative and if pursued,
intends to use the proceeds from this transaction to either (i) repurchase
shares of the Company's common stock not owned by the Glazer Group for an
aggregate repurchase price of not in excess of $8.00 per share or $21,400,000 in
aggregate value (the "Repurchase"), (ii) prepay the new credit facility term
loans or (iii) construct or acquire additional new restaurants. If the Company
decides to complete the Repurchase, the transaction is expected to be completed
as soon as practicable after the closing of the sale leaseback transaction, but
in any event by November 15, 1997.
Seasonality
The Company's sales generally are not subject to seasonality, although sales are
generally slightly higher during the fourth quarter, and slightly lower during
the first quarter, due to weather and the dining habits of the Company's guests.
18
<PAGE>
Impact of Inflation
Inflationary increases in costs, namely food, labor and operating expenses,
could have a significant impact on the Company's operations. In the past, the
Company has been able to recover inflationary cost increases through increased
food and beverage menu prices. There have been, and there may be in the future,
delays in implementing such menu price increases, and competitive pressures may
limit the Company's ability to recover such cost increases in their entirety.
Historically, the effects of inflation have not had a significant impact on the
Company's net income.
A significant number of the Company's employees are paid hourly rates tied to
federal and state minimum wage and tip credit laws. An increase in the federal
minimum wage was effective October 1, 1996, and other minimum wage increases are
currently proposed by various state governments. Although the Company has and
will continue to attempt to pass along any increased labor costs through food
and beverage price increases, there can be no assurance that all such increased
labor costs can be reflected in its prices or that increased prices will be
absorbed by consumers without diminishing to some degree consumer spending at
the restaurants. However, the Company has not experienced to date a significant
reduction in gross profit margins as a result of changes in such laws, and
management does not anticipate any related future significant reductions in
gross profit margins.
Item 8. Financial Statements and Supplementary Data
See the Index to Financial Statements on Page F-1.
Item 9. Changes in and Disagreements with Accountants on Accounting and
Financial Disclosure
None.
19
<PAGE>
PART III
Item 10. Directors and Executive Officers of the Registrant
The following table sets forth the name, age, and position of each person who is
a director or officer of the Company. Officers are elected for one-year terms
and serve at the pleasure of the Board. Each director will serve until his
successor is elected and qualified.
Name Age Position
- ------------------- --- ----------------------------------------------------
Malcolm I. Glazer 68 Chairman of the Board of Directors
Avram A. Glazer 36 Director
Kevin E. Glazer 34 Director
Bryan G. Glazer 32 Director
Joel M. Glazer 29 Director
Warren H. Gfeller 44 Director
Frederick R. Hipp 46 President, Chief Executive Officer and Director
William W. Moreton 36 Executive Vice President/Chief Financial Officer,
Treasurer and Secretary (resigned effective
April 4, 1997)
Henry C. Miller 42 Senior Vice President/Houlihan's and Dinnerhouses
Andrew C. Gunkler 44 Senior Vice President/Franchising
Mark T. Walker 39 Vice President/Construction and Design
James W. Kaiser 46 Vice President/Purchasing and Facilities
Marc L. Kuemmerlein 42 Vice President/General Counsel
Kenneth C. Vetter 45 Vice President/Darryl's
Paul R. Geist 33 Vice President/Controller
Bryon A. Mifsud 34 Regional Vice President/Houlihan's
Jeff J. Tompkins 41 Regional Vice President/Houlihan's
Malcolm I. Glazer has been the Chairman of the Board of the Company since
September 16, 1992. Malcolm Glazer has been President and Chief Executive
Officer of the First Allied Corporation since 1984. Mr. Glazer's diversified
portfolio consists of investments in television broadcasting, health care,
banking, natural gas services, real estate and food service equipment. He is
Chairman of the Board of Directors of Zapata Corporation, a natural gas company,
a director of Specialty Equipment Companies, Inc., a domestic manufacturer of
food service equipment, a director of Envirodyne Industries, Inc., a producer of
food packaging and food service supplies and a director of Buccaneers Limited
Partnership, the entity that owns the Tampa Bay Buccaneer National Football
League franchise.
Avram A. Glazer has been a director of the Company since September 16, 1992.
Avram Glazer has been Vice President of the First Allied Corporation since 1985.
Avram Glazer also serves as Chief Executive Officer and a director of Zapata
Corporation. He is also a member of the Board of Directors of Specialty
Equipment Companies, Inc. and Envirodyne Industries, Inc. Avram Glazer is the
son of Malcolm Glazer.
Kevin E. Glazer has been a director of the Company since September 16, 1992.
Kevin Glazer has been Vice President of the First Allied Corporation since 1986.
He is also a member of the Board of Directors of Specialty Equipment Companies,
Inc. Kevin Glazer is the son of Malcolm Glazer.
20
<PAGE>
Bryan G. Glazer has been a director of the Company since September 16, 1992.
Bryan Glazer has been Vice President of the First Allied Corporation since 1989
and is a director of the Buccaneers Limited Partnership. Bryan Glazer is the son
of Malcolm Glazer.
Joel M. Glazer has been a director of the Company since September 16, 1992. Joel
Glazer has been Vice President of the First Allied Corporation since 1989 and is
a director of the Buccaneers Limited Partnership. Joel Glazer is the son of
Malcolm Glazer.
Warren H. Gfeller has been a director of the Company since September 16, 1992.
Mr. Gfeller is the owner of Clayton-Hamilton Equities and was the President,
Chief Executive Officer and a director of Ferrellgas, Inc. in Liberty, Missouri
from 1983 through 1991. He is also a director of Synergy Gas Corp., the Kansas
Wildscape Foundation, House Specialties Corporation, Gardner Bancshares, Inc.,
and Stranger Valley Land Company.
Frederick R. Hipp has been the President, Chief Executive Officer, and a
director of the Company since August 1988. He served as President/Casual Dining
Division of the Company from June 1985 to August 1988 and as Executive Vice
President of the Company from May 1980 to June 1985. Prior to joining the
Company, Mr. Hipp served as President of Restaurant Data Systems, Inc. from 1978
to 1980 and served in a number of operations and support positions with the
Steak & Ale Corporation from 1973 to 1978.
William W. Moreton joined the Company in October 1992 as the Vice President,
Chief Financial Officer, Treasurer and Secretary and was promoted to Executive
Vice President in April 1993. Prior to this position, Mr. Moreton served as Vice
President-Head of Special Asset Management-U.S. for Credit Agricole-CNCA from
April 1989 to October 1992. Prior to that he was with Arthur Andersen & Co. from
July 1982 to April 1989 where he served as a Manager in the Audit and Financial
Consulting Division. Effective April 4, 1997, Mr. Moreton resigned his position
with the Company.
Henry C. Miller has been Senior Vice President/Houlihan's and Dinnerhouses since
October 22, 1993. He served as Vice President/Operations and General Manager -
Houlihan's and Dinnerhouses from April to October 1993. He served as Vice
President/Operations - Houlihan's and Dinnerhouses from August 1988 to April
1993 and served as Vice President/Operations - Houlihan's from October 1985 to
August 1988. He served as Director/Franchise Operations from October 1984 to
October 1985 and served in the capacity of Area Director from May 1982 to
October 1984. Prior to May 1982, Mr. Miller served in a variety of restaurant
operations positions.
Andrew C. Gunkler was elected Senior Vice President/Franchising in January 1996.
He served as Vice President/Franchising from February 1994 to December 1995.
Prior to joining the Company in 1994, he served as Vice President of Franchising
for East Side Mario's from October 1992 to December 1993 and as Director of
Franchise Development for Perkins Family Restaurants from October 1985 to
October 1992.
Mark T. Walker has been Vice President/Construction and Design since October
1991. He served as Director of Facilities from October 1987 to October 1991 and
as Manager of Construction from September 1985 until October 1987. Prior to
holding these positions, Mr. Walker served as a regional facilities manager with
Montgomery Ward from September 1983 until September 1985.
21
<PAGE>
James W. Kaiser was elected Vice President/Purchasing and Facilities in February
1995. He served as Director/Purchasing from October 1988 to September 1994.
Prior to joining the Company he served as Director of Purchasing for ChiChi's
Mexican Restaurants.
Marc L. Kuemmerlein was elected Vice President/General Counsel in December 1995.
He served as General Counsel from January 1993 to December 1995 and as Corporate
Counsel from July 1990 to January 1993. Prior to joining the Company, Mr.
Kuemmerlein practiced general corporate and real estate law with the firm Smith,
Gill, Fisher & Butts, which merged with Bryan Cave LLP in July 1995.
Kenneth C. Vetter was elected Vice President/Darryl's in January 1996. He served
as a Darryl's Area Director from December 1977 to January 1996. Mr. Vetter
served as a General Manager in Darryl's restaurant operations from December 1975
to December 1977. Prior to December 1975, he served in a variety of restaurant
operations positions.
Paul R. Geist was elected Vice President/Controller in September 1996. He served
as Director/Finance from March 1994 to September 1996 and served in numerous
accounting and finance positions from December 1989 to March 1994. Prior to
joining the Company, Mr. Geist was with Deloitte & Touche LLP from August 1986
to December 1989.
Bryon A. Mifsud was elected Regional Vice President/Houlihan's in September
1996. He served as a Houlihan's Area Director from July 1990 to September 1996.
Prior to July 1990, Mr. Mifsud served in a variety of restaurant management
positions.
Jeff J. Tompkins was elected Regional Vice President/Houlihan's in September
1996. He served as a Houlihan's Area Director from July 1983 to September 1996.
Prior to July 1983, Mr. Tompkins served in a variety of restaurant management
positions.
22
<PAGE>
Item 11. Executive Compensation
The following table sets forth certain information concerning the compensation
of the Company's Chief Executive Officer and the other four most highly
compensated executive officers of the Company in 1996.
<TABLE>
SUMMARY COMPENSATION TABLE
Long-Term
Compensation
Annual Compensation Awards All Other
--------------------------- ------------- Compensation
Name and Principal Position Year Salary ($) Bonus($)(a) Options (#) ($) (b)
- ------------------------------------ ---- ----------- ---------- ------------- -----------
<S> <C> <C> <C> <C> <C>
Frederick R. Hipp 1996 399,996 - - 28,239
President and Chief Executive 1995 370,055 74,011 50,000 24,953
Officer 1994 362,024 - 250,000 28,223
Andrew C. Gunkler 1996 150,375 73,237 - 5,619
Senior Vice President/Franchising 1995 105,481 83,547 - 474
1994 97,385 50,300 32,000 274
William W. Moreton 1996 196,250 - - 9,271
Executive Vice President/Chief 1995 170,683 68,273 16,000 5,651
Financial Officer 1994 159,192 - 74,000 6,932
Henry C. Miller 1996 172,000 - - 8,784
Senior Vice President/Houlihan's 1995 155,019 62,008 14,000 5,339
and Dinnerhouses 1994 146,269 - 68,000 6,639
Kenneth C. Vetter 1996 115,000 - 30,000 2,902
Vice President/Darryl's 1995 83,292 5,000 - 916
1994 80,000 9,870 2,000 820
</TABLE>
- ----------------------------
(a) Reflects bonus amounts earned in each year as provided under the annual
incentive plan, employment agreements and letter agreements with the
executive officers discussed below.
(b) Includes Company contributions to the retirement savings plan, group
term life insurance premiums and disability insurance premiums.
The named executive officers received automobile allowances, reimbursements of
automobile expenses, moving expenses and/or reimbursements for financial and
estate planning services. Such other compensation did not exceed in the
aggregate the lesser of $50,000 or 10% of the total of annual salary and bonus
reported for such officers.
23
<PAGE>
The following table sets forth certain information concerning options to
purchase the Company's common stock granted in 1996 to the five individuals
named in the Summary Compensation Table.
<TABLE>
OPTION GRANTS IN LAST FISCAL YEAR
Potential Realizable Value
at Assumed Annual Rates
of Stock Price
Appreciation for
Individual Grants Option Term
- ------------------------------------------------------------------------------------ --------------------------
% of Total
Options Granted Exercise
Options to Employees Price Expiration
Name Granted in Fiscal Year per Share Date 5% 10%
- ------------------ ----------- -------------- ----------- ------------- ----------- ----------
<S> <C> <C> <C> <C> <C> <C>
Frederick R. Hipp - - - - - -
Andrew C. Gunkler - - - - - -
William W. Moreton - - - - - -
Henry C. Miller - - - - - -
Kenneth C. Vetter 30,000 24.0% $ 5.50 Oct. 29, 2006 $ 103,768 $ 262,968
</TABLE>
As of December 30, 1996, the options were not exercisable and the stock price
was below the exercise price.
The Certificate of Incorporation states that the seven member board will serve
concurrent terms of one year. All directors who are not full-time employees of
the Company receive fees of $10,000 per annum and $500 per meeting and are
eligible to receive stock options pursuant to the Company's option plan for
outside directors. See "Benefit Plans and Arrangements."
In December 1992, the Board of Directors established the Compensation Committee
composed of Messrs. Malcolm Glazer and Warren Gfeller. The duties of the
Compensation Committee are to review remuneration for corporate officers and to
make recommendations to the Board of Directors regarding changes in
compensation. The Committee's objectives are to establish compensation programs
designed to attract, retain and reward executives who will lead the Company in
achieving its business goals in a highly competitive industry and to ensure that
management compensation is reasonable in light of the Company's objectives,
compensation for similar personnel in other companies and other relevant
criteria.
The Company's present compensation program consists of an annual component,
which includes base salary plus an annual incentive bonus, and a long-term
component consisting of stock options. During 1996, the Compensation Committee
met informally and after considering the report of external consultants, the
Committee recommended increases in executive salaries for 1996. The increases
were believed to be competitive with similar personnel in other companies within
the industry.
Employment Agreements
On March 23, 1989, the Company entered into an employment agreement with
Frederick R. Hipp. The agreement, as amended on August 5, 1991, provides for a
minimum base annual salary of $362,000 subject to adjustment, for severance
payments under certain circumstances, and permits Mr. Hipp to receive bonuses.
Mr. Hipp's employment agreement also provides other fringe benefits including
(i) additional term life insurance equal to 5.5 times base salary, (ii)
additional long-term disability coverage which, when combined with the Company's
standard long-term disability insurance, equals 60% of base
24
<PAGE>
salary paid out annually to age 65, (iii) an automobile allowance plus related
operating and maintenance expenses, and (iv) financial and estate planning and
associated legal expenses. Additionally, pursuant to the agreement, the Company
must indemnify Mr. Hipp, if, among other things, he becomes a party to a legal
action or lawsuit arising in connection with the proper exercise of his duties.
The agreement was further amended on February 11, 1992 to provide for a
severance payment if his employment is terminated upon a change of control of
the Company in an amount equal to 2.99 times Mr. Hipp's average annual
compensation for the previous five years. This amount would equal $954,000 as of
December 30, 1996.
On August 5, 1991, the Company entered into a letter agreement with Henry C.
Miller which, as amended, provides for the payment of severance payments if Mr.
Miller's employment is terminated under certain change of control circumstances
in an amount equal to 2.99 times Mr. Miller's average annual compensation for
the previous five years, or $407,000 as of December 30, 1996. A "change of
control" as defined in the agreements with respect to Messrs. Hipp and Miller,
occurred on December 28, 1992. In March 1993, the Company entered into
agreements with William W. Moreton and Mark T. Walker providing for severance
payments of 2.99 times the executive's average annual compensation for the
previous five years if their employment is terminated under certain change of
control circumstances. Such amounts would aggregate to $927,000 as of December
30, 1996. The resignation of Mr. Moreton in April 1997 terminated the employment
agreement between him and the Company.
In all of the above agreements, there is no limitation with respect to the
passage of time between the change of control and the termination of the
employee. Such individuals are not entitled to a severance payment in the event
of a termination of employment resulting from (a) death or retirement, (b)
termination by the Company for "cause", or termination by the employee for a
reason other than a "good reason". A " good reason" is defined to include an
assignment of duties materially inconsistent with such individual's status as a
senior executive officer, a reduction in annual salary, a transfer of the
employee to a location more than 50 miles from the current corporate office
location, a failure of the Company to pay an installment of a previous bonus
award, the failure of the Company to maintain the individual's current level of
employment benefits, or the failure of the Company to obtain a satisfactory
employment agreement for the individual from a successor company. The agreements
do not have an expiration date.
Benefit Plans and Arrangements
Annual Incentive Plan. The Company maintains an annual incentive plan which
includes executive officers and other key employees of the Company. Under the
plan, participants generally are eligible to receive cash bonuses based on the
Company's earnings before interest, taxes, depreciation and amortization.
Retirement Savings Plans. The Company has two retirement savings plans for its
employees, a trusted plan under Section 401(k) of the Internal Revenue Code
("RSP I"), and an untrusted deferred compensation plan ("RSP II"). RSP I covers
employees of the Company whose total annual compensation is less than $66,000,
as adjusted pursuant to Internal Revenue Code Section 415(d), and who have
completed at least one year of employment. Participants are able to reduce their
taxable salary compensation by a specified percentage and receive a 50% matching
contribution by the Company of up to 3% of the individual participant's
qualified compensation as defined in the plan. RSP II covers employees of the
Company whose total annual compensation is $66,000 or more and matches the
provisions of RSP I, except for certain exceptions. RSP II is unfunded, and all
salary reduction
25
<PAGE>
contributions and the Company's contributions remain a part of the Company's
general assets. RSP II permits eligible employees to contribute 1% to 15% of
their base salary plus bonus.
Stock Option Plans. The Company maintains two stock option plans, one plan for
outside directors ("Option Plan I") and one plan for executives and certain key
employees ("Option Plan II"), providing for the issuance of options to purchase
540,000 and 776,600 shares, respectively. The Board of Directors determines the
option price based upon the estimated market value of the Company's common stock
at the date of grant based on the price of the shares as traded in the
over-the-counter market. All options granted have ten year terms and vest and
become fully exercisable at the end of four years of continued employment.
Option Plan I provides for the issuance of up to 30,000 shares to each outside
director per year to the extent the options are available under the plan.
Options for 540,000 and 776,600 shares were issued and outstanding as of
December 30, 1996 under Option Plans I and II, respectively.
Item 12. Security Ownership of Certain Beneficial Owners and Management
The following table sets forth information with respect to beneficial ownership
of shares of the Company's common stock as of December 30, 1996 by each
beneficial owner of more than five percent of the Company's common stock, each
director, each executive officer named in the Summary Compensation Table and all
directors and officers of the Company as a group.
<TABLE>
Percentage of Percentage of
Shares of Fully Diluted
Number of Shares Common Stock Shares of
Name of Stockholder (a) of Common Stock Outstanding (b) Common Stock (c)
- ------------------------------------- --------------- --------------- ----------------
<S> <C> <C> <C>
Glazer Group (d) 7,325,815 73.27% 72.92%
1482 S. Ocean Blvd.
Palm Beach, FL 33480
Warren H. Gfeller - - -
Frederick R. Hipp (e) 56,129 * *
Andrew C. Gunkler (e) - - -
William W. Moreton (e) - - -
Henry C. Miller (e) - - -
Kenneth C. Vetter (e) - - -
All directors and officers as a group 7,382,944 73.84 73.49
</TABLE>
- ----------------------
* Less than 1% of outstanding Common Stock.
(a) Because the Company is not subject to the provisions of Section 13(d) of
the Securities Act of 1934, as amended, the Company is unable to ascertain
beneficial ownership based upon statements filed with the Commission
pursuant to Sections 13(d) of 13(g) of the Securities Exchange Act of 1934,
as amended.
(b) Based on 9,998,012 shares of Common Stock outstanding.
(c) Assumes the exercise of 47,710 warrants outstanding at an exercise price of
$37.92.
(d) Includes Malcolm I. Glazer, Chairman of the Board of Directors, and his
sons, Avram A. Glazer, Kevin E. Glazer, Bryan G. Glazer and Joel M. Glazer,
each a director. See "Directors and Executive Officers of the Registrant."
26
<PAGE>
(e) Excludes 300,000, 32,000, 90,000, 82,000, and 32,000 shares of Common Stock
subject to outstanding options granted to Messrs. Hipp, Gunkler, Moreton,
Miller and Vetter, respectively, of which 125,000, 16,000, 37,000 34,000
and 1,000, respectively, were exercisable within 60 days of the date of
this Form 10-K.
Item 13. Certain Relationships and Related Transactions
The Company entered into a merger agreement on June 4, 1996 with Zapata
Corporation ("Zapata"), which provided for Zapata's acquisition of the Company
for a combination of cash and stock valued at $8.00 per share. At that time,
approximately 35% of Zapata's outstanding shares of common stock were owned by
the Glazer Group, which owns approximately 73% of the Company's outstanding
stock at December 30, 1996. The agreement was terminated on October 8, 1996
pursuant to its terms. The termination followed the decision of the Delaware
Chancery Court that a vote of 80% of the Zapata stockholders would be required
to approve the merger. Approximately $1,105,000 of expenses were incurred by the
Company resulting from the above transaction.
On October 13, 1995, the Company entered into an Advertising and Sponsorship
Agreement (the "Agreement") with the Buccaneers Limited Partnership for the
exclusive naming rights to the Tampa Bay Buccaneer Football Stadium (the
"Stadium"). The Buccaneers Limited Partnership is 100% controlled by the Glazer
Group. The Agreement provides the Company with the right to name the Stadium
"Houlihan's Stadium". Additionally, it provides the Company with advertising
rights inside the Stadium and in Tampa Bay Buccaneer programs and brochures. The
Agreement is for a ten-year period at a total cost of $10,000,000. The payment
terms are $2,000,000 per year for the first five years of the Agreement. The
Company has made two payments under the Agreement.
27
<PAGE>
PART IV
Item 14. Exhibits, Financial Statements and Reports on Form 8-K
(a) Financial Statements
The financial statements are listed in the accompanying "Index to
Financial Statements" on page F-1.
Exhibits
The exhibits filed with or incorporated by reference in this
report are listed on the Exhibit Index beginning on page E-1.
(b) Reports on Form 8-K
The Company filed a report on Form 8-K on October 25, 1996,
announcing that the merger agreement between the Company and a
subsidiary of Zapata Corporation had been terminated pursuant to
its terms.
Supplemental Information to Be Furnished With Reports Filed Pursuant to Section
15(d) of the Act by Registrants Which Have Not Registered Securities Pursuant to
Section 12 of the Act
No annual report or proxy statement was sent to security holders during the
fiscal year ended December 30, 1996.
28
<PAGE>
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Act of
1934, the registrant has duly caused this report to be signed on its behalf by
the undersigned, thereunto duly authorized.
HOULIHAN'S RESTAURANT GROUP, INC.
Date: April 15, 1997 By: /s/ Frederick R. Hipp
---------------------------- -------------------------------------
Frederick R. Hipp
President and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1934, this report has been
signed below by the following persons on behalf of the registrant and in the
capacities and on the dates indicated.
By: /s/ Frederick R. Hipp Date: April 15, 1997
-------------------------------------------- ---------------------
Frederick R. Hipp
President, Chief Executive Officer and Director
(principal executive officer)
By: /s/ Paul R. Geist Date: April 15, 1997
-------------------------------------------- ---------------------
Paul R. Geist
Vice President / Controller
(principal financial and accounting officer)
By: /s/ Malcolm I. Glazer Date: April 15, 1997
-------------------------------------------- ---------------------
Malcolm I. Glazer
Chairman and Director
By: /s/ Avram A. Glazer Date: April 15, 1997
-------------------------------------------- ---------------------
Avram A. Glazer
Director
By: /s/ Kevin E. Glazer Date: April 15, 1997
-------------------------------------------- ---------------------
Kevin E. Glazer
Director
By: /s/ Bryan G. Glazer Date: April 15, 1997
-------------------------------------------- ---------------------
Bryan G. Glazer
Director
By: /s/ Joel M. Glazer Date: April 15, 1997
-------------------------------------------- ---------------------
Joel M. Glazer
Director
By: /s/ Warren H. Gfeller Date: April 15, 1997
-------------------------------------------- ---------------------
Warren H. Gfeller
Director
29
<PAGE>
HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
INDEX TO FINANCIAL STATEMENTS
Page
----
Independent Auditors' Report ............................................. F-2
Consolidated Balance Sheets as of December 30, 1996 and December 25, 1995. F-3
Consolidated Statements of Income for the fiscal years ended December 30,
1996, December 25, 1995 and December 26, 1994 ....................... F-4
Consolidated Statements of Stockholders' Equity for the fiscal years
ended December 30, 1996, December 25, 1995 and December 26, 1994 .... F-5
Consolidated Statements of Cash Flows for the fiscal years ended December
30, 1996, December 25, 1995 and December 26, 1994 ................... F-6
Notes to Consolidated Financial Statements ............................... F-7
All schedules are omitted as the required information is not present in amounts
sufficient to require submission of the schedule, or because the required
information is included in the consolidated financial statements or the notes
thereto.
F-1
<PAGE>
INDEPENDENT AUDITORS' REPORT
To Houlihan's Restaurant Group, Inc.:
We have audited the accompanying consolidated balance sheets of Houlihan's
Restaurant Group, Inc. and subsidiary (the "Company") as of December 30, 1996
and December 25, 1995 and the related consolidated statements of income,
stockholders' equity and cash flows for the fiscal years ended December 30,
1996, December 25, 1995 and December 26, 1994. These financial statements are
the responsibility of the Company's management. Our responsibility is to express
an opinion on these financial statements based on our audits.
We conducted our audits in accordance with generally accepted auditing
standards. Those standards require that we plan and perform the audit to obtain
reasonable assurance about whether the financial statements are free of material
misstatement. An audit includes examining, on a test basis, evidence supporting
the amounts and disclosures in the financial statements. An audit also includes
assessing the accounting principles used and significant estimates made by
management, as well as evaluating the overall financial statement presentation.
We believe that our audits provide a reasonable basis for our opinion.
In our opinion, the consolidated financial statements referred to above present
fairly, in all material respects, the financial position of Houlihan's
Restaurant Group, Inc. and subsidiary as of December 30, 1996 and December 25,
1995, and the results of their operations and their cash flows for the fiscal
years ended December 30, 1996, December 25, 1995 and December 26, 1994 in
conformity with generally accepted accounting principles.
DELOITTE & TOUCHE LLP
Kansas City, Missouri
March 3, 1997
(April 15, 1997 as to Notes 8 and 15)
F-2
<PAGE>
HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
CONSOLIDATED BALANCE SHEETS
(Dollars in thousands, except per share amounts)
Dec. 30, Dec. 25,
1996 1995
-------- --------
ASSETS
Current assets:
Cash and cash equivalents.............................. $ 15,620 $ 10,314
Receivables ........................................... 1,252 1,661
Inventories .................. ........................ 2,455 2,276
Other current assets .................................. 2,971 2,918
Deferred income taxes ................................. 3,011 1,401
-------- --------
Total current assets .............................. 25,309 18,570
Property, equipment and leaseholds, net .................. 105,481 104,521
Reorganization value in excess of amounts allocable to
identifiable assets, net ............... .............. 58,458 62,108
Deferred debt issuance costs, net ........................ 218 330
Other assets, net ........................................ 6,209 5,487
-------- --------
Total assets ...................................... $195,675 $191,016
======== ========
LIABILITIES AND STOCKHOLDERS' EQUITY
Current liabilities:
Current portion of long-term debt and capitalized lease
obligations ....................................... $ 8,135 $ 11,202
Accounts payable .............................. ....... 7,317 8,811
Accrued interest ...................................... 590 676
Accrued liabilities ................................... 15,449 13,375
-------- --------
Total current liabilities .................. ...... 31,491 34,064
Long-term debt, including capitalized lease obligations,
less current portion .................................. 71,594 72,779
Other liabilities ........................................ 12,284 10,834
Deferred income taxes .................................... 4,917 3,147
-------- --------
Total liabilities ................................. 120,286 120,824
-------- --------
Stockholders' equity:
Common stock-par value $.01 per share, 20,000,000 shares
authorized, 9,998,012 shares issued and outstanding 100 100
Additional paid-in capital............................. 59,900 59,900
Retained earnings ..................................... 15,389 10,192
-------- --------
Total stockholders' equity ........................ 75,389 70,192
-------- --------
Total liabilities and stockholders' equity......... $195,675 $191,016
======== ========
See accompanying notes to consolidated financial statements.
F-3
<PAGE>
<TABLE>
HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF INCOME
(Dollars in thousands, except per share amounts)
53 Weeks 52 Weeks 52 Weeks
Ended Ended Ended
December 30, December 25, December 26,
1996 1995 1994
------------ ------------ -------------
<S> <C> <C> <C>
Net sales ............................ $ 274,836 $ 267,622 $ 259,367
Cost of sales:
Food and bar costs ................ 80,741 78,363 76,329
Labor costs ....................... 86,196 85,351 83,186
Operating expenses (exclusive of
depreciation and amortization
shown separately) ............... 62,814 58,661 56,047
------------ ------------ ------------
Total cost of sales ........... 229,751 222,375 215,562
------------ ------------ ------------
Gross profit .................. 45,085 45,247 43,805
Depreciation and amortization ........ 15,506 14,865 16,245
General and administrative expenses .. 16,590 16,938 17,176
Loss on disposition of properties, net 344 605 847
Other (income), net .................. (4,722) (3,531) (2,883)
Interest expense ..................... 6,973 8,189 6,562
Merger expenses (Note 11) ............ 1,105 -- --
------------ ------------ ------------
Income before income taxes .... 9,289 8,181 5,858
Income tax provision ................. 4,092 3,916 2,900
------------ ------------ ------------
Net income .................... $ 5,197 $ 4,265 $ 2,958
============ ============ ============
Earnings per common and common
equivalent share (Note 2) ......... $ 0.52 $ 0.43 $ 0.30
============ ============ ============
Weighted average common and common
equivalent shares ................. 10,045,762 10,032,254 10,012,928
============ ============ ============
</TABLE>
See accompanying notes to consolidated financial statements.
F-4
<PAGE>
<TABLE>
HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF STOCKHOLDERS' EQUITY
(Dollars in thousands)
Common Stock Warrants Additional Total
-------------------- ----------------- Paid-In Retained Stockholders'
Shares Amount Warrants Amount Capital Earnings Equity
---------- ------- ------- ------- --------- -------- ------------
<S> <C> <C> <C> <C> <C> <C> <C>
Balance, December 27, 1993.............. 9,998,012 $ 100 47,710 $ -- $ 59,900 $ 2,969 $ 62,969
Net income .......................... -- -- -- -- -- 2,958 2,958
---------- ------- ------- ------- --------- -------- ------------
Balance, December 26, 1994 ............. 9,998,012 100 47,710 -- 59,900 5,927 65,927
---------- ------- ------- ------- --------- -------- ------------
Net income .......................... -- -- -- -- -- 4,265 4,265
---------- ------- ------- ------- --------- -------- ------------
Balance, December 25, 1995 ............. 9,998,012 100 47,710 -- 59,900 10,192 70,192
---------- ------- ------- ------- --------- -------- ------------
Net income .......................... -- -- -- -- -- 5,197 5,197
---------- ------- ------- ------- --------- -------- ------------
Balance, December 30, 1996 ............. 9,998,012 $ 100 47,710 $ -- $ 59,900 $ 15,389 $ 75,389
========== ======= ======= ======= ========= ======== ============
</TABLE>
See accompanying notes to consolidated financial statements.
F-5
<PAGE>
<TABLE>
HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
CONSOLIDATED STATEMENTS OF CASH FLOWS
(Dollars in thousands)
53 Weeks 52 Weeks 52 Weeks
Ended Ended Ended
Dec. 30, Dec. 25, Dec. 26,
1996 1995 1994
-------- -------- --------
<S> <C> <C> <C>
Cash flows from operating activities:
Net income ...................................... $ 5,197 $ 4,265 $ 2,958
Adjustments to reconcile net income to net
cash provided by operating activities:
Depreciation and amortization ............... 15,506 14,865 16,245
Amortization of deferred debt issuance costs. 112 110 110
Loss on disposition of properties, net....... 344 605 847
Deferred income tax provision (benefit)...... 160 (388) 390
Changes in operating assets and liabilities:
Receivables ............................... 409 (146) (244)
Inventories ............................... (179) 170 (3)
Other current assets ...................... (53) (467) (399)
Accounts payable .......................... (1,494) (1,239) 476
Accrued interest .......................... (86) (976) 97
Accrued liabilities ....................... 2,074 849 (7,176)
Other assets ................................ (445) 141 (1,228)
Other liabilities ........................... 1,450 1,581 2,024
-------- -------- --------
Net cash provided by operating activities.. 22,995 19,370 14,097
-------- -------- --------
Cash flows from investing activities:
Capital expenditures, excluding capital leases... (13,582) (14,626) (17,814)
Proceeds from disposition of properties.......... 145 832 91
-------- -------- --------
Net cash used for investing activities..... (13,437) (13,794) (17,723)
-------- -------- --------
Cash flows from financing activities:
Net proceeds from issuance of long-term debt,
excluding capitalized lease obligations....... 6,950 7,000 --
Payments on long-term debt, including capitalized
lease obligations ............................ (11,202) (12,572) (10,444)
-------- -------- --------
Net cash used for financing activities..... (4,252) (5,572) (10,444)
-------- -------- --------
Net increase (decrease) in cash and cash equivalents 5,306 4 (14,070)
Cash and cash equivalents at beginning of period.... 10,314 10,310 24,380
-------- -------- --------
Cash and cash equivalents at end of period.......... $ 15,620 $ 10,314 $ 10,310
======== ======== ========
Supplemental Disclosures of Cash Flow Information:
Cash paid during the period for:
Interest ........................................ $ 6,947 $ 9,055 $ 6,355
======== ======== ========
Income taxes .................................... $ 2,214 $ 3,500 $ 6,917
======== ======== ========
</TABLE>
Disclosure of Accounting Policy:
For purposes of the consolidated statements of cash flows, the Company
considers all highly liquid debt instruments purchased with a maturity of three
months or less to be cash equivalents.
See accompanying notes to consolidated financial statements.
F-6
<PAGE>
HOULIHAN'S RESTAURANT GROUP, INC. AND SUBSIDIARY
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS
1. Organization
Houlihan's Restaurant Group, Inc., together with its wholly-owned subsidiary,
Houlihan's Restaurants, Inc. and its subsidiaries (the "Company") operates full
service casual dining restaurants in twenty-three states. At December 30, 1996,
it operated 101 restaurants, including 62 Houlihan's, 28 Darryl's, four upscale
Seafood Grills and seven Specialty Restaurants comprised of four dinnerhouses,
two upscale steakhouses and the Buena Vista Cafe. At that date the Company also
franchised 29 Houlihan's in eleven states and the Commonwealth of Puerto Rico.
Houlihan's Restaurant Group, Inc. does not engage in any business or activity
other than holding the capital stock of Houlihan's Restaurants, Inc.
2. Summary of Significant Accounting Policies
Principles of consolidation
The consolidated financial statements include the accounts of the Company and
its wholly-owned subsidiary. All significant intercompany balances and
transactions have been eliminated.
Fiscal year
The Company reports fiscal year results of operations based on 52- or 53-week
periods. The fiscal year ended December 30, 1996 was a 53-week period. The
fiscal years ended December 25, 1995, and December 26, 1994 were composed of 52
weeks. References to years are to the fiscal years then ended.
Use of Estimates in Preparing Financial Statements
The preparation of financial statements in conformity with generally accepted
accounting principles requires management to make estimates and assumptions that
affect the reported amounts of assets and liabilities and disclosure of
contingent assets and liabilities at the date of the financial statements and
the reported amounts of revenues and expenses during the reporting period.
Actual results could differ from those estimates.
Temporary cash investments
Cash and cash equivalents include temporary cash investments, consisting of
commercial paper and certificates of deposit, of $11,893,000 and $6,212,000 at
December 30, 1996 and December 25, 1995, respectively. Temporary cash
investments are carried at cost which approximates market.
Inventories
Inventories consist primarily of food and liquor and are stated at the lower of
cost or market. Costs are determined using the first-in, first-out (FIFO)
method.
F-7
<PAGE>
Property, equipment and leaseholds
Property, equipment and leaseholds are depreciated on a straight-line basis over
their estimated useful lives (buildings - 20 years and furniture, fixtures and
equipment - 2 to 10 years). Leasehold improvements are amortized on a
straight-line basis over the shorter of their estimated useful lives or the
remaining terms of the leases. Property under capitalized leases is amortized
over the terms of the leases using the straight-line method.
Losses on disposition of properties in the normal course of business are
recognized when a commitment to divest a restaurant property is made by the
Company and include estimated carrying costs through the expected date of
disposal. Gains on disposition of properties in the normal course of business
are recognized at the date of sale.
Pre-opening expenses
Certain costs incurred in connection with the opening of new or converted
restaurants (principally the initial food and liquor order, smallwares and the
cost associated with training staff) are expensed upon opening or conversion of
restaurants. Pre-opening expenses, included in cost of sales in the accompanying
consolidated statements of income, were $806,000, $969,000, and $1,268,000 for
1996, 1995 and 1994, respectively.
Reorganization value in excess of amounts allocable to identifiable assets
The reorganization value in excess of amounts allocable to identifiable assets
is being amortized using the straight-line method over 20 years. Accumulated
amortization at December 30, 1996 and December 25, 1995 was $14,552,000 and
$10,901,000, respectively.
Long-lived assets and certain identifiable intangibles
Long-lived assets and certain identifiable intangibles to be held and used by
the Company are reviewed for impairment using undiscounted cash flows whenever
events or changes in circumstances indicated that the carrying value of the
asset may not be recoverable. Long-lived assets and identifiable intangibles to
be disposed of are reported at the lower of carrying amount or fair value less
cost to sell.
Deferred debt issuance costs
Deferred debt issuance costs at December 30, 1996 include approximately $516,000
and $135,000 of fees and financing costs related to the Company's bank credit
agreement and the interest rate cap, respectively. Such costs are amortized over
the expected lives of the respective debt issues and the interest rate cap
period (see Note 8). As of December 30, 1996, the unamortized costs were
$210,000 and $8,000, respectively.
Franchise rights
Franchise rights are attributable to the Company's franchise agreements existing
prior to 1994 and have been capitalized in the accompanying consolidated balance
sheets (included in other assets). The rights are being amortized over 14 years.
F-8
<PAGE>
Franchise revenues
Franchise revenues from area franchise development agreements are recognized
proportionately upon opening of the restaurants in accordance with Statement of
Financial Accounting Standards No. 45. Revenues from individual restaurant
franchise agreements are recognized upon opening of the restaurants. Franchise
revenues included in other income in the accompanying consolidated statements of
income aggregated $2,647,000, $1,596,000 and $1,087,000 for 1996, 1995 and 1994,
respectively. Of these amounts, $520,000, $315,000 and $45,000 represent initial
franchise fees for 1996, 1995 and 1994, respectively.
Earnings per common and common equivalent share
Earnings per common and common equivalent share are based on the weighted
average number of shares outstanding and the assumed exercise of outstanding
dilutive stock options issued under the Company's stock option plans (see Note
12) less the number of treasury shares assumed to be purchased from the proceeds
using the average market price of the Company's common stock. At December 30,
1996, warrants to purchase up to 47,740 shares of common stock at a price of
$37.92 per share were outstanding. Additional shares of common stock issuable
upon the exercise of the warrants have not been considered in the calculation as
the effect would be antidilutive.
3. Disclosures about Fair Value of Financial Instruments
The following methods and assumptions were used to estimate the fair value of
each class of significant financial instruments of the Company.
Cash and cash equivalents: The carrying amount approximates fair value because
of the short maturity of such instruments.
Long-term debt (see Note 8): The carrying amount of the Company's bank debt as
of December 30, 1996 approximates fair value given that all outstanding bank
debt was refinanced subsequent to year end (see Note 15). The fair value of the
Company's bank debt as of December 25, 1995 is estimated based on current rates
offered to the Company for debt of the same maturities.
Letters of credit (see Note 8): The Company uses letters of credit to primarily
back certain insurance policies. The letters of credit reflect fair value as a
condition of their underlying purpose.
The estimated fair values of the Company's financial instruments are as follows
(in thousands):
<TABLE>
December 30, 1996 December 25, 1995
--------------------- ---------------------
Carrying Estimated Carrying Estimated
Amount Fair Value Amount Fair Value
-------- ---------- -------- ----------
<S> <C> <C> <C> <C>
Cash and cash equivalents .................. $ 15,620 $ 15,620 $ 10,314 $ 10,314
Long-term debt (excluding capitalized
lease obligations) ...................... 77,062 77,062 81,112 72,523
Off balance sheet financial instruments:
Letters of credit ....................... 4,523 4,523 4,927 4,927
</TABLE>
F-9
<PAGE>
4. Receivables
Receivables are comprised of the following (in thousands):
December 30, December 25,
1996 1995
--------------- ---------------
Trade, principally credit cards $ 841 $ 1,093
Franchise receivables, net 273 431
Other 138 137
--------------- ---------------
$ 1,252 $ 1,661
=============== ===============
5. Other Current Assets
Other current assets are comprised of the following (in thousands):
December 30, December 25,
1996 1995
------------- -------------
Prepaid advertising rights (See Note 11) $ 1,000 $ 1,000
Prepaid occupancy costs 1,222 467
Prepaid insurance 275 379
Prepaid licenses 112 128
Deposits with vendors 32 130
Other 330 814
------------- -------------
$ 2,971 $ 2,918
============= =============
6. Property, Equipment and Leaseholds
Property, equipment and leaseholds are comprised of the following (in
thousands):
December 30, December 25,
1996 1995
--------------- ---------------
Land and improvements $ 19,546 $ 19,546
Buildings and improvements 30,301 29,798
Leasehold improvements 50,043 45,108
Furniture, fixtures and equipment 52,186 47,007
--------------- ---------------
152,076 141,459
Less: Accumulated depreciation and
amortization 46,595 36,938
--------------- ---------------
$ 105,481 $ 104,521
=============== ===============
Property under capitalized leases in the amount of $1,618,000 and $1,865,000 at
December 30, 1996 and December 25, 1995, respectively, is included principally
in buildings and improvements. Capitalized leases relate primarily to the
buildings on certain restaurant properties. The land portions of the restaurant
property leases are accounted for as operating leases.
Depreciation and capitalized lease amortization expense relating to property,
equipment and leaseholds for 1996, 1995 and 1994 was $11,699,000, $11,058,000
and $12,438,000, respectively. Of these amounts, $247,000, $247,000 and
$226,000, respectively, related to capitalized lease amortization.
F-10
<PAGE>
Substantially all of the capitalized and operating leases have terms, including
all options, expiring after 2000 and most leases have renewal options. The
leases generally provide for payment of minimum annual rent, real estate taxes,
insurance and maintenance and, in most cases, contingent rent (calculated as a
percentage of sales) in excess of minimum rent.
There were no contingent rents under capitalized leases for the periods
presented. Total rental expense for all operating leases is composed of the
following (in thousands):
1996 1995 1994
--------------- --------------- --------------
Minimum rent $ 11,465 $ 10,364 $ 9,303
Contingent rent 2,011 2,107 2,298
--------------- --------------- --------------
$ 13,476 $ 12,471 $ 11,601
=============== =============== ==============
The present value of capitalized lease payments and the future minimum lease
payments on noncancelable operating leases as of December 30, 1996 are as
follows (in thousands):
Capitalized Operating
Leases Leases
--------------- --------------
1997 $ 596 $ 10,996
1998 596 10,690
1999 596 10,226
2000 579 9,200
2001 529 7,916
Thereafter 1,555 45,465
--------------- --------------
Total minimum lease payments 4,451 $ 94,493
==============
Less: Interest 1,784
---------------
Present value of minimum lease payments $ 2,667
===============
7. Other Assets
Other assets are comprised of the following (in thousands):
December 30, December 25,
1996 1995
------------- --------------
Franchise rights, net $ 1,561 $ 1,718
Liquor licenses 2,469 2,464
Advertising rights (See Note 11) 2,000 1,000
Other 179 305
------------- --------------
$ 6,209 $ 5,487
============= ==============
F-11
<PAGE>
8. Long-Term Debt
Long-term debt, including capitalized lease obligations, is comprised of the
following (in thousands):
December 30, December 25,
1996 1995
--------------- ----------------
Bank Debt:
Term Loan $ 29,112 $ 40,112
Real Estate Loan 40,000 40,000
Revolving Credit Facility 7,950 1,000
Capitalized lease obligations (Note 6) 2,667 2,869
--------------- ----------------
79,729 83,981
Less: Current portion (Note 15) 8,135 11,202
--------------- ----------------
$ 71,594 $ 72,779
=============== ================
Scheduled maturities of outstanding long-term debt for each of the five fiscal
years subsequent to December 30, 1996 after the effect of the refinancing are
disclosed in Note 15.
Bank Credit Agreement
The Company entered into a credit agreement on December 28, 1992, (the "Bank
Credit Agreement") with Credit Agricole-CNCA, New York Branch (the "Bank")
providing for a $62,939,000 Term Loan, a $40,000,000 Real Estate Loan and a
$20,000,000 Revolving Credit Facility (collectively, the "Bank Debt").
The Term Loan requires semi-annual principal payments as follows (in thousands):
Principal Amount
Payment Dates of Payment
------------------------------------- ----------------
March 31, 1997 and September 30, 1997 $ 5,500
March 31, 1998 and September 30, 1998 6,750
The final Term Loan installment is payable on March 31, 1999 and will be equal
to the unpaid principal amount of the Term Loan. The Real Estate Loan and the
Revolving Credit Facility are scheduled to mature on March 31, 1997. The Company
refinanced all of its outstanding bank debt subsequent to year end (see Note
15).
Under the terms of the Bank Credit Agreement, the Company is required to reduce
its Bank Debt with the net proceeds resulting from any permitted sales of
assets, issuances of debt or equity, and 65% of the Company's Excess Cash Flow
(as defined in the Bank Credit Agreement). The Term Loan shall be repaid first,
the Real Estate Loan shall be repaid second and the Revolving Credit Facility
shall be permanently reduced last. All such prepayments of the Term Loan will be
applied 50% in the order of maturity and 50% in the inverse order of maturity.
In 1996, the Company reduced the balance of the Term Loan by $11,000,000 which
consisted of two scheduled payments of $5,500,000 each, as required by the Bank
Credit Agreement.
The Revolving Credit Facility can be used for working capital purposes and to
provide for standby letters of credit. The maximum amount available under the
Revolving Credit Facility was reduced to
F-12
<PAGE>
$12,500,000 pursuant to the Third Amendment to the Bank Credit Agreement dated
October 1, 1996 (see "Amendments to the Bank Credit Agreement"). The amount
available under the Revolving Credit Facility is reduced by the principal amount
of any outstanding standby letters of credit. A commitment fee of 1/2 of 1% per
annum is required based upon the daily unused amount of the Revolving Credit
Facility. A fee of 1% per annum is also required based upon the daily amount of
outstanding standby letter of credit commitments. Standby letters of credit
totaling $4,523,000 issued under the Revolving Credit Facility were outstanding
as of December 30, 1996.
The Bank Debt interest is calculated at 2.0% over the reserve adjusted London
Interbank Offered Rate ("LIBOR"). At December 30, 1996, interest on the Term
Loan and the Real Estate Loan was being charged at 7.50%. The average interest
rate on the Revolving Credit Facility Loans at December 30, 1996 was 7.52%.
As required by the Bank Credit Agreement, during 1993 the Company purchased an
interest rate cap for a four-year period on an aggregate notional amount of
$30,000,000 pursuant to which the Company shall be protected against increases
in LIBOR in excess of the greater of (i) 10% per annum and (ii) 2-1/2% per annum
plus the Alternate Base Rate (as defined in the Bank Credit Agreement) through
March 29, 1997.
Collateral Arrangements
Substantially all of the Company's assets are pledged as collateral under the
Bank Credit Agreement. In addition, borrowings under the Bank Credit Agreement
are guaranteed by the parent company and by each of its active wholly-owned
subsidiaries. This guarantee is secured by a pledge of all of the capital stock
of Houlihan's Restaurants, Inc., and the guarantees of the active wholly-owned
subsidiaries are collateralized by security interests in all of the assets of
each such subsidiary.
Financing Covenants and Restrictions
The Bank Credit Agreement contains various covenants and restrictions, including
(i) restriction of additional indebtedness, mergers or consolidations, payment
of indebtedness, affiliated transactions and investments in affiliates, unless
certain financial tests are met, and (ii) restriction on the payment of
dividends to 35% of the Company's future Excess Cash Flow (as defined). The Bank
Credit Agreement also contains various covenants which, among other things,
restrict the amount of annual capital expenditures and require the maintenance
of certain financial ratios and minimum consolidated net worth (as defined).
Based on the Bank Credit Agreement covenants, there were no retained earnings
available for payment of dividends at December 30, 1996. Failure to comply with
any of the financial and operating covenants included in the Bank Credit
Agreement as amended or the occurrence of a Change of Control (as defined in the
Bank Credit Agreement) would permit the Bank to accelerate the maturity of the
Bank Debt.
Amendments to the Bank Credit Agreement
During 1996, the Bank Credit Agreement was amended to revise certain covenants
of the agreement. The Second Amendment, dated March 25, 1996, reduced the
minimum interest coverage ratio specified for the first fiscal quarter of 1996
to 3.6 and reduced the aggregate Revolving Credit Facility commitment to
$15,000,000 from $20,000,000. The Third Amendment, dated June 24, 1996, reduced
the minimum interest coverage ratio specified for the second fiscal quarter to
3.8 and the minimum fixed charge
F-13
<PAGE>
coverage ratio specified for the second fiscal quarter to 1.6. Additionally, the
Third Amendment also reduced the aggregate Revolving Credit Facility commitment
to $12,500,000 effective October 1, 1996. The Fourth Amendment, dated November
1, 1996, reduced the minimum fixed charge coverage ratio specified for the third
fiscal quarter to 1.8.
On March 31, 1997, the Bank Credit Agreement was amended (the "Fifth Amendment")
to extend the maturity date of all outstanding bank debt to May 15, 1997. The
new maturity date allowed for the closing of a new $90 million secured credit
facility (see Note 15). Additionally, the Fifth Amendment revised the required
fixed charge coverage ratio for the fourth quarter of 1996. The Company also
made two payments on the Term Loan consisting of a scheduled principal payment
of $5,500,000 on March 31, 1997 and a Net Cash Proceeds payment (as defined in
the Bank Credit Agreement) of $129,000 on April 4, 1997. As a result, the
Company remains in compliance with all covenants of its current bank credit
agreement as amended.
9. Accrued Liabilities
Accrued liabilities are comprised of the following (in thousands):
December 30, December 25,
1996 1995
--------------- ----------------
Wages, salaries and bonuses $ 2,986 $ 2,295
Sales and property taxes 2,324 1,984
Rent 2,445 1,830
Federal and state taxes 2,038 816
Gift certificates 1,317 1,087
Vacation 399 425
Worker's compensation 583 618
Utilities 665 610
Employee insurance 487 399
Other 2,205 3,311
--------------- ----------------
$ 15,449 $ 13,375
=============== ================
10. Income Taxes
The income tax provisions (benefits) consist of the following (in thousands):
1996 1995 1994
----------- ------------ ------------
Current provision $ 3,932 $ 4,304 $ 2,510
Deferred provision (benefit) 160 (388) 390
----------- ------------ ------------
$ 4,092 $ 3,916 $ 2,900
=========== ============ ============
Current tax liabilities are included in accrued liabilities in the accompanying
consolidated balance sheets.
Deferred income taxes result from temporary differences between the financial
statement and tax basis of the Company's assets and liabilities. The sources of
the differences and their cumulative tax effects are as follows (in thousands):
F-14
<PAGE>
December 30, December 25,
1996 1995
------------ ------------
Current:
Assets:
Insurance reserves $ 417 $ 370
Net operating losses - 1,425
General business credit carryforwards 2,835 -
Liabilities:
Other (241) (394)
------------ -----------
$ 3,011 $ 1,401
============ ===========
Noncurrent:
Assets:
Development fees $ 321 $ 255
Insurance reserves 3,381 2,965
Deferred debt issuance costs 169 247
Net operating losses - 587
General business credit carryforwards 3,172 6,238
Alternative minimum tax credit carryforwards 504 -
Other 818 620
Less: Valuation allowance (435) (1,000)
Liabilities:
Excess tax depreciation (12,238) (12,389)
Franchise rights (609) (670)
------------ -----------
$ (4,917) $ (3,147)
============ ===========
A reconciliation between the actual income tax provision and income taxes
computed by applying the statutory Federal income tax rate to the income before
income taxes is as follows:
1996 1995 1994
------- ------- -------
Statutory federal tax rate 34 % 34 % 34 %
State and local income
taxes (net of Federal
tax benefit) 6 9 10
General business credits (9) (12) (16)
Nondeductible amortization
of reorganization value in
excess of amounts allocable
to identifiable assets 13 15 21
Other - 2 1
------- ------- -------
Effective tax rate 44 % 48 % 50 %
======= ======= =======
As of December 30, 1996, the Company has total general business credit and
alternative minimum tax credit carryforwards of approximately $6,007,000 and
$504,000, respectively. The general business credit carryforwards will expire
from 1997 through 2011. The utilization of $4,273,000 of the general business
credit carryforwards is limited due to the changes in ownership which occurred
in 1989 and 1992. The first $3,746,000 of the general business credit
carryforwards is limited to $574,000 per year, and the next $527,000 is limited
to $1,279,000 per year. To the extent general business credit
F-15
<PAGE>
carryforward limitations are not utilized in a year, the unused limitation
increases the subsequent year limitation amount.
11. Related Party Transactions
The Company entered into a merger agreement on June 4, 1996 with Zapata
Corporation ("Zapata"), which provided for Zapata's acquisition of the Company
for a combination of cash and stock valued at $8.00 per share. Approximately 35%
of Zapata's outstanding shares of common stock were owned by the Glazer Group,
which owns approximately 73% of the Company's outstanding stock at December 30,
1996. The agreement was terminated on October 8, 1996 pursuant to its terms. The
termination followed the decision of the Delaware Chancery Court that a vote of
80% of the Zapata stockholders would be required to approve the merger. The
merger agreement provided that either party could terminate the agreement if the
merger was not consummated by October 1, 1996. Expenses incurred by the Company
resulting from the above transaction are disclosed separately in the
accompanying consolidated statement of income for the year ended December 30,
1996.
On October 13, 1995, the Company entered into an Advertising and Sponsorship
Agreement (the "Agreement") with the Buccaneers Limited Partnership for the
exclusive naming rights to the Tampa Bay Buccaneer Football Stadium (the
"Stadium"). The Buccaneers Limited Partnership is 100% controlled by the Glazer
Group, owners of approximately 73% of the Company's common stock on a fully
diluted basis. The Agreement provides the Company with the right to name the
Stadium "Houlihan's Stadium". Additionally, it provides the Company with
advertising rights inside the Stadium and in Tampa Bay Buccaneer programs and
brochures.
The Agreement is for a ten-year period at a total cost of $10,000,000. The
payment terms are $2,000,000 per year for the first five years of the Agreement.
The cost is being expensed on a straight-line basis over ten years. The Company
has made two payments under the Agreement of which $1,000,000 has been expensed,
$1,000,000 is reflected as a prepaid expense in current assets and $2,000,000 is
reflected as a noncurrent asset in the accompanying consolidated balance sheet.
During 1995, the Company received $161,000 from First Allied Tampa Corporation,
which is wholly owned by the Glazer Group. The amount represented accrued
interest resulting from the termination of an option agreement that granted the
Company the exclusive right to operate a restaurant in the Tampa Bay Buccaneer
Football Stadium.
During 1996 and 1995, directors fees aggregating $37,500 and $24,000,
respectively, were paid to members of the Company's Board of Directors who are
members of the Glazer Group.
12. Stock Option Plans
The Company maintains two stock option plans, one plan for outside directors
("Option Plan I") and one for executives and certain key employees ("Option Plan
II"), providing for the issuance of options to purchase 540,000 and 776,600
shares, respectively. The Board of Directors determines the option price based
upon the estimated market value of the Company's common stock at the date of
grant based on the price of the shares as traded in the over-the-counter market.
All options granted have ten year terms and vest and become fully exercisable at
the end of four years of continued employment. Option Plan I provides for the
issuance of up to 30,000 shares to each outside director per year to the extent
the options are available under the plan.
F-16
<PAGE>
A summary of the Company's stock option activity, and related information for
the years ended December 30, 1996 and December 25, 1995 follows:
<TABLE>
Option Plan I
1996 1995
------------------------- -------------------------
Weighted-Avg Weighted-Avg
Options Exercise Price Options Exercise Price
--------- -------------- --------- --------------
<S> <C> <C> <C> <C>
Outstanding-beginning of year 360,000 $ 9.19 180,000 $ 9.25
Granted 180,000 5.06 180,000 9.13
Exercised -- -- -- --
Forfeited -- -- -- --
--------- -------------- --------- --------------
Outstanding-end of year 540,000 $ 7.81 360,000 $ 9.19
Exercisable at end of year -- -- -- --
</TABLE>
<TABLE>
Option Plan II
1996 1995
------------------------- -------------------------
Weighted-Avg Weighted-Avg
Options Exercise Price Options Exercise Price
--------- -------------- --------- --------------
<S> <C> <C> <C> <C>
Outstanding-beginning of year 653,600 $ 8.65 617,000 $ 9.25
Granted 127,000 5.50 164,600 6.86
Exercised -- -- -- --
Forfeited (4,000) 7.56 (128,000) 9.25
--------- -------------- --------- --------------
Outstanding-end of year 776,600 $ 8.14 653,600 $ 8.65
Exercisable at end of year -- -- -- --
Weighted-average fair value
of options granted during
the year $ 2.43 $ 3.73
</TABLE>
Exercise prices for options outstanding as of December 30, 1996 ranged from
$5.06 to $9.25 for Option Plan I and from $5.38 to $9.75 for Option Plan II. The
weighted average remaining contractual life of all outstanding options is 7.9
years.
The Company has elected to follow Accounting Principles Board Opinion No. 25
("APB 25") and related Interpretations in accounting for its stock option plans.
Accordingly, no compensation cost has been recognized for its stock option plans
as the exercise price of the Company's stock options equaled the market price of
the underlying stock on the date of grant.
Had compensation cost for the Company's stock option plans been determined based
on the fair value at the grant dates for awards under the plans consistent with
FASB Statement No. 123 "Accounting for Stock-Based Compensation" ("SFAS 123"),
the Company's net income and earnings per share for the years ended December 30,
1996 and December 25, 1995 would have been reduced to the pro forma amounts
indicated below (in thousands except for earnings per share information):
F-17
<PAGE>
1996 1995
--------- ---------
Net income
As reported $ 5,197 $ 4,265
Pro forma 4,443 3,724
Earnings per common and common equivalent share
As reported $ 0.52 $ 0.43
Pro forma 0.44 0.37
The fair value of the Company's stock options as calculated in accordance with
SFAS 123 was estimated at the date of grant using a Black-Scholes options
pricing model with the following weighted-average assumptions for both 1996 and
1995: risk-free interest rate of 5.8%; no dividend yield; volatility factor of
the expected market price of the Company's common stock of .52; and a
weighted-average expected life of the option of four years.
13. Benefit Plans
The Company maintains several incentive compensation and related plans for
executives and other key employees of the Company. Under the plans, participants
generally are eligible to receive cash bonuses based on the Company's earnings
before interest, taxes, depreciation and amortization. Total expenses for these
plans included in the accompanying consolidated statements of income for 1996,
1995 and 1994 were $2,393,000, $2,615,000 and $1,960,000, respectively.
Substantially all of the Company's salaried employees are eligible to
participate in defined contribution retirement savings plans under which Company
contributions are based on employee contributions and compensation. The
Company's expense during 1996, 1995 and 1994 under such plans was $632,000,
$672,000 and $462,000, respectively.
14. Contingencies and Commitments
Litigation
The Company is currently involved in various claims and pending legal actions
arising in the normal course of business. In the opinion of management, the
final disposition of these claims and pending actions will not have a material
adverse effect, individually or in the aggregate, on the business or the
financial position of the Company.
Severance Payment Agreements
In prior years, the Company entered into agreements with certain officers which
provide for severance payments in the event the employment of such officers is
terminated upon a change of control of the Company, as defined in the
agreements. The severance payments shall be equal to 2.99 times the average
compensation of each participant for the previous five years. As of December 30,
1996, the contingent liability under the agreements for all participants was
approximately $2,287,000.
Real Estate Consulting Contracts
In 1992, the Company entered into real estate consulting contracts expiring in
2001 with management companies which employ two beneficial owners of a company
that previously had a controlling interest
F-18
<PAGE>
in the Company for a total of $625,000 per year. The total expense incurred
under the contracts during 1996, 1995 and 1994 was $625,000 each year.
15. Subsequent Event
On March 31, 1997, the Fifth Amendment to the Company's existing bank credit
agreement extended the maturity date of all of its outstanding bank debt to May
15, 1997 and revised a certain covenant for the fourth quarter of 1996. The new
maturity date allowed for the closing of a new $90 million secured credit
facility. The Company also made two payments on the Term Loan consisting of a
scheduled principal payment of $5,500,000 on March 31, 1997 and a Net Cash
Proceeds payment (as defined in the existing bank credit agreement) of $129,000
on April 4, 1997. The Company signed a new bank credit agreement and obtained
the $90,000,000 credit facility on April 15, 1997. The proceeds from the new
credit facility of $75,000,000, along with $585,000 of the Company's existing
unrestricted cash, were used to repay and permanently retire $75,585,000 of the
existing bank indebtedness at April 15, 1997.
The new credit facility consists of a senior bank term loan facility and a
senior bank revolving credit facility. The term loan facility consists of a
five-year tranche A term loan in the principal amount of $20,000,000 and a
seven-year tranche B term loan in the principal amount of $55,000,000. The
tranche A loan requires annual amortization of $4,000,000 and the tranche B loan
requires annual amortization of $550,000 for the first five years and
$26,125,000 in the sixth and seventh years. All amortization on the term loans
is to be paid in equal quarterly installments. Scheduled maturities of
outstanding long-term debt, including capitalized lease obligations, for each of
the five fiscal years subsequent to December 30, 1996 after the effect of the
refinancing are as follows (in thousands):
1997 $ 8,135
1998 4,815
1999 4,853
2000 4,880
2001 4,875
The five-year revolving credit facility in the principal amount of $15,000,000
includes a $5,000,000 swingline facility. The revolving credit facility will be
available to provide for the working capital requirements and general corporate
purposes of the Company and provides for letters of credit up to $10,000,000.
The Company had no amounts outstanding under the revolving credit facility as of
April 15, 1997.
Substantially all of the Company's assets are pledged as collateral under the
new bank credit agreement. In addition, borrowings under the new facility are
guaranteed by the parent company and by each of its active wholly-owned
subsidiaries. This guarantee is secured by a pledge of all of the capital stock
of Houlihan's Restaurants, Inc., and the guarantees of the active wholly-owned
subsidiaries are collateralized by security interests in all of the assets of
each such subsidiary.
F-19
<PAGE>
HOULIHAN'S RESTAURANT GROUP, INC.
EXHIBIT INDEX
Exhibit
No. Description of Exhibit
- ------- -----------------------------------------------------------------------
3.1 Certificate of Incorporation of Registrant, as amended. (1)
3.2 Amended and Restated Bylaws of Registrant. (2)
10.1 Amended and Restated Credit Agreement dated as of April 15, 1997 among
Houlihan's Restaurants, Inc., DLJ Capital Funding, Inc., as Syndication
Agent, Banque Indosuez, New York Branch, as Administrative Agent, and
Credit Lyonnais, Chicago Branch, as Documentation Agent and Exhibits
and Schedules thereto.
10.2 Schedule of Franchise Development Agreements as of December 30, 1996.
21 Subsidiaries of the Registrant.
27 Financial Data Schedule (filed with EDGAR version).
- ---------------------
(1) Filed as an exhibit to report on Form 10-K for the year ended December 26,
1994 and incorporated herein by reference.
(2) Filed as an exhibit to the Registration Statement on Form S-1 (Registration
No. 33-66392) and incorporated herein by reference.
E-1
<PAGE>
HOULIHAN'S RESTAURANT GROUP, INC.
SCHEDULE OF FRANCHISE DEVELOPMENT AGREEMENTS
December 30, 1996
Development
Execution Territory Schedule
Developer Date (all or part)(total/deadline)
- ----------------------------------------- ----- ----------- --------------
Oregon Irish Restaurants ................ 4/94 OR 4 / 6/15/99
R H Restaurants, Inc. ................... 4/94 NV 3 / 6/15/99
Desert Hospitality and Onager Development 4/94 TX AZ CO 5 / 8/15/99
Executive Management, Ltd. .............. 7/94 NC 8 / 9/15/00
Copa Restaurants, Inc. .................. 10/94 WI 5 / 10/1/97
Bennett Hofford Company ................. 1/95 SC 4 / 2/28/99
Hospitality & Leisure Investments, Inc. . 3/95 Puerto Rico 3 / 9/15/97
Clancy's Inc. ........................... 3/95 IN KY 5 / 3/31/99
Concessions International, L.P. ......... 5/95 GA IL PA CA 5 / 3/31/99
Destock, Inc. ........................... 7/95 TN 7 / 4/30/01
Houlihan's of Cleveland ................. 7/95 OH 8 / 2/28/02
T-Brothers, Inc. ........................ 7/95 ND SD 2 / 10/1/98
Plaza International Restaurants, Inc. ... 9/95 FL 5 / 12/31/00
Grimaldi's of Albany, Inc. .............. 1/96 NY 5 / 11/15/99
Tukwila Foods ........................... 3/96 WA 4 / 1/30/00
Frel Ingenieros y Arquitectos ........... 8/96 Mexico 2 / 12/31/98
San Carlos .............................. 8/96 CA 5 / 8/30/01
Northcott Company ....................... 9/96 MN IA NE 10 / 11/30/05
JDK ..................................... 9/96 PA 6 / 4/15/01
<PAGE>
HOULIHAN'S RESTAURANTS, INC.
SUBSIDIARIES
December 30, 199
Houlihan's of Union Station, Inc., a Missouri corporation
Houlihan's of Farmingdale, Inc., a Missouri corporation
Darryl's of St. Louis County, Inc., a Missouri corporation
Darryl's of Kissimmee, Inc., a Missouri corporation
Darryl's of Overland Park, Inc., a Kansas corporation
Sam Wilson's/Kansas, Inc., a Kansas corporation
S & H Beverage Co., Inc., a Texas corporation
Houlihan's/Maryland, Inc., a Maryland corporation
Houlihan's/Milwaukee, Inc., a Wisconsin corporation
Houlihan's/Bergen County, Inc., a New Jersey corporation
Houlihan's/San Francisco, Inc., a California corporation
Houlihan's of Indianapolis, Inc., an Indiana corporation
Houlihan's of California, Inc., a California corporation
G/R Texas Enterprises, Inc., a Texas corporation
Restaurant Supply, Inc., a Missouri corporation
Red Steer, Inc., a Missouri corporation
<PAGE>
HOULIHAN'S RESTAURANTS, INC.
AMENDED AND RESTATED
CREDIT AGREEMENT
This AMENDED AND RESTATED CREDIT AGREEMENT is dated as of April 15,
1997 and entered into by and among HOULIHAN'S RESTAURANTS, INC., a Delaware
corporation ("COMPANY"), THE LENDERS LISTED ON THE SIGNATURE PAGES HEREOF (each
individually referred to herein as a "LENDER" and collectively as "LENDERS"),
DLJ CAPITAL FUNDING, INC. ("DLJ"), as syndication agent hereunder for Lenders
(in such capacity, "SYNDICATION AGENT"), and BANQUE INDOSUEZ, New York Branch
("BIS"), as administrative agent for Lenders (in such capacity, "ADMINISTRATIVE
AGENT"), and CREDIT LYONNAIS Chicago Branch, as documentation agent for Lenders
(in such capacity, "Documentation Agent").
R E C I T A L S
WHEREAS, Company (formerly known as Gilbert/Robinson, Inc.), Caisse
Nationale de Credit Agricole, the financial institutions identified therein and
Caisse Nationale de Credit Agricole, New York Branch, as agent (collectively,
the "EXISTING LENDER") entered into a Credit Agreement dated as of December 28,
1992 (as amended to date, the "EXISTING CREDIT AGREEMENT");
WHEREAS, Existing Lender desires to assign its loans, rights and
obligations under the Existing Credit Agreement and its rights and obligations
in and to all related documents (together with the Existing Credit Agreement,
the "EXISTING LOAN DOCUMENTS") to Lenders;
WHEREAS, to facilitate such assignment Existing Lender has agreed to
assign to all of its loans, rights and obligations under the Existing Loan
Documents to DLJ pursuant to the Master Assignment Agreement, and DLJ has
agreed, subject to restructuring such loans, rights and obligations as set forth
herein, to assign to each Lender under this Credit Agreement such loans, rights
and obligations;
WHEREAS, Lenders desire to accept such assignment and extend
additional credit to Company, as set forth herein;
WHEREAS, Company intends to (i) restructure approximately $75,585,000
of senior indebtedness outstanding under the Existing Credit Agreement (the
"REFINANCING"); (ii) within 120 days of the Refinancing, enter into sales and
leaseback transactions with respect to the real estate underlying up to 25
restaurant locations owned by Company on terms and conditions reasonably
satisfactory to Syndication Agent (the "SALE AND LEASEBACK TRANSACTIONS"); and
(iii) use a portion of the proceeds of the Sale and Leaseback Transactions (A)
to provide funds for the repurchase (by means of a self tender or a short-form
merger) of all shares of the common stock of Houlihan's Restaurant Group, Inc.,
a Delaware corporation that owns all the outstanding capital stock of Company
("HOLDINGS"), not owned by any Affiliated Stockholder and options for such stock
that are "in the money," not later than November 15, 1997 for a repurchase price
of not in excess of $8.00 per share or an aggregate repurchase price of
$22,100,000 for all such shares and options (the "REPURCHASE") or (B) for other
purposes as set forth herein;
WHEREAS, Company desires that Lenders extend certain credit facilities
to Company to provide funds, in addition to cash of Company, for (i) the
Refinancing, (ii) the payment of fees and expenses incurred in connection with
the Recapitalization (as such term is defined herein) in an aggregate amount not
exceeding $4,500,000 and (iii) the working capital and other general corporate
purposes of Company and its Subsidiaries as described herein;
WHEREAS, Company desires to secure all of the Obligations hereunder
and under the other Loan Documents by granting to Administrative Agent, on
behalf of Lenders, a first priority Lien on substantially all of its personal
property and certain of its real property, including a pledge of all of the
capital stock of each of its Subsidiaries;
WHEREAS, each Affiliated Stockholder has agreed to guarantee on a
non-recourse basis the Obligations hereunder and under the other Loan Documents
and to secure its guaranty by granting to Administrative Agent, on behalf of
Lenders, a first priority lien on shares of common stock of Holdings
beneficially owned by such Affiliated Stockholder;
WHEREAS, Holdings and all of the Subsidiaries of Company have agreed
to guarantee the Obligations hereunder and under the other Loan Documents and to
secure their guaranties by granting to Administrative Agent, on behalf of
Lenders, a first priority Lien on substantially all of their respective personal
property and certain of their respective real property, including a pledge of
all of the capital stock of each of their respective Subsidiaries; and
WHEREAS, Company, Lenders, Syndication Agent, Administrative Agent and
Documentation Agent desire to amend and restate the Existing Credit Agreement as
follows:
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, Company, Lenders, Syndication Agent,
Administrative Agent and
Documentation Agent agree as follows:
SECTION 1. DEFINITIONS
1.1 CERTAIN DEFINED TERMS.
The following terms used in this Agreement shall have the following
meanings:
"ADDITIONAL SALE AND LEASEBACK TRANSACTIONS" means the sale and
leaseback of the real estate acquired after the Closing Date underlying any
restaurant, which sale and leaseback occurs within the six month period after
the completion or acquisition of such restaurant.
"ADJUSTED EURODOLLAR RATE" means, for any Interest Rate Determination
Date with respect to an Interest Period for a Eurodollar Rate Loan, the rate per
annum obtained by dividing (i) the offered quotation (rounded upward to the
nearest 1/16 of one percent) to first class banks in the London interbank market
by BIS for U.S. dollar deposits of amounts in same day funds comparable to the
principal amount of the Eurodollar Rate Loan of BIS for which the Adjusted
Eurodollar Rate is then being determined (which principal amount shall be deemed
to be $1,000,000 in the event BIS is not making, converting to or continuing
such a Eurodollar Rate Loan) with maturities comparable to such Interest Period
as of approximately 10:00 a.m. (New York time) on such Interest Rate
Determination Date by (ii) a percentage equal to 100% minus the stated maximum
rate of all reserve requirements (including any marginal, emergency,
supplemental, special or other reserves) applicable on such Interest Rate
Determination Date to any member bank of the Federal Reserve System in respect
of "Eurocurrency liabilities" as defined in Regulation D (or any successor
category of liabilities under Regulation D).
"ADMINISTRATIVE AGENT" has the meaning assigned to that term in the
introduction to this Agreement and also means and includes any successor
Administrative Agent appointed pursuant to subsection 9.5A.
"AFFECTED LENDER" has the meaning assigned to that
term in subsection 2.6C.
"AFFILIATE", as applied to any Person, means any other Person directly
or indirectly controlling, controlled by, or under common control with, that
Person. For the purposes of this definition, "control" (including, with
correlative meanings, the terms "controlling", "controlled by" and "under common
control with"), as applied to any Person, means the possession, directly or
indirectly, of the power to direct or cause the direction of the management and
policies of that Person, whether through the ownership of voting securities or
by contract or otherwise.
"AFFILIATED STOCKHOLDER" means [Glazer family group:
to be defined].
"AFFILIATED STOCKHOLDER PLEDGE AGREEMENT" means each Affiliated
Stockholder Limited Guaranty and Pledge Agreement executed and delivered by an
existing Affiliated Stockholder on the Closing Date or executed and delivered by
any additional Affiliated Stockholder from time to time thereafter in accordance
with subsection 6.8, in each case substantially in the form of Exhibit XII
annexed hereto, as such Affiliated Stockholder Limited Guaranty and Pledge
Agreement may be amended, supplemented or otherwise modified from time to time,
and "AFFILIATED STOCKHOLDER PLEDGE AGREEMENTS" means all such Affiliated
Stockholder Limited Guaranty and Pledge Agreements, collectively.
"AGENTS" means, collectively, the Syndication Agent
and the Administrative Agent.
"AGREEMENT" means this Credit Agreement dated as of April 15, 1997, as
it may be amended, supplemented or otherwise modified from time to time.
"APD CERTIFICATE" means an Officer's Certificate delivered during the
first 45 days of a Fiscal Quarter certifying the Consolidated Leverage Ratio for
the prior four consecutive Fiscal Quarters.
"APPLICABLE PRICING DISCOUNT" means, during any Pricing Discount
Period, (i) if an APD Certificate is provided in two consecutive Fiscal Quarters
certifying that the Consolidated Leverage Ratio is equal to or less than
2.00:1.00, .25% per annum or (ii) if an APD Certificate is provided in two
consecutive Fiscal Quarters certifying that the Consolidated Leverage Ratio is
equal to or less than 1.75:1.00, .50% per annum.
"ARRANGER" means Donaldson, Lufkin & Jenrette Securities Corporation,
as arranger of the credit facilities described herein.
"ASSET SALE" means the sale by Company or any of its Subsidiaries to
any Person other than Company or any of its wholly-owned Subsidiaries of (i) any
of the stock of any of Company's Subsidiaries, (ii) substantially all of the
assets of any division or line of business of Company or any of its
Subsidiaries, or (iii) any other assets (whether tangible or intangible) of
Company or any of its Subsidiaries (other than (a) obsolete equipment sold in
the ordinary course of business, (b) any assets of Company or any of its
Subsidiaries sold pursuant to the Sale and Leaseback Transactions if such Sale
and Leaseback Transactions are completed on or prior to August 15, 1997, (c) any
assets of Company or any of its Subsidiaries sold pursuant to an Additional Sale
and Leaseback Transaction the proceeds of which do not exceed $5,000,000 in any
Fiscal Year and (d) any such other assets to the extent that (i) the aggregate
value of such assets sold in any single transaction or related series of
transactions is equal to $100,000 or less and (ii) the aggregate value of such
assets sold in any Fiscal Year is equal to $200,000 or less).
"ASSIGNED MORTGAGES" means the Mortgages listed on Schedule 4.1D that
secure obligations under the Existing Credit Agreement and will be assigned as
of the Closing Date to Administrative Agent for the benefit of Lenders.
"ASSIGNMENT AGREEMENT" means an Assignment Agreement in substantially
the form of Exhibit XI annexed hereto.
"BANKRUPTCY CODE" means Title 11 of the United States Code entitled
"Bankruptcy", as now and hereafter in effect, or any successor statute.
"BASE RATE" means, at any time, the higher of (x) the Prime Rate or
(y) the rate which is 1/2 of 1% in excess of the Federal Funds Effective Rate.
"BASE RATE LOANS" means Loans bearing interest at rates determined by
reference to the Base Rate as provided in subsection 2.2A.
"BIS" has the meaning assigned to that term in the
introduction to this Agreement.
"BUSINESS DAY" means (i) for all purposes other than as covered by
clause (ii) below, any day excluding Saturday, Sunday and any day which is a
legal holiday under the laws of the State of [INSERT STATE WHERE ADMINISTRATIVE
AGENT'S OFFICE IS LOCATED AT WHICH PAYMENTS AND DISBURSEMENTS IN RESPECT OF THE
LOANS WILL BE MADE] or is a day on which banking institutions located in such
state are authorized or required by law or other governmental action to close,
and (ii) with respect to all notices, determinations, fundings and payments in
connection with the Adjusted Eurodollar Rate or any Eurodollar Rate Loans, any
day that is a Business Day described in clause (i) above and that is also a day
for trading by and between banks in Dollar deposits in the London interbank
market.
"CAPITAL LEASE", as applied to any Person, means any lease of any
property (whether real, personal or mixed) by that Person as lessee that, in
conformity with GAAP, is accounted for as a capital lease on the balance sheet
of that Person.
"CARRY OVER CAPITAL EXPENDITURES AMOUNT" means the amount determined
pursuant to subsection 7.8(i) by which the Maximum Consolidated Capital
Expenditures Amount will be
increased for the next Fiscal Year.
"CASH" means money, currency or a credit balance in a
Deposit Account.
"CASH EQUIVALENTS" means, as at any date of determination, (i)
marketable securities (a) issued or directly and unconditionally guaranteed as
to interest and principal by the United States Government or (b) issued by any
agency of the United States the obligations of which are backed by the full
faith and credit of the United States, in each case maturing within one year
after such date; (ii) marketable direct obligations issued by any state of the
United States of America or any political subdivision of any such state or any
public instrumentality thereof, in each case maturing within one year after such
date and having, at the time of the acquisition thereof, the highest rating
obtainable from either Standard & Poor's Ratings Group ("S&P") or Moody's
Investors Service, Inc. ("MOODY'S"); (iii) commercial paper maturing no more
than one year from the date of creation thereof and having, at the time of the
acquisition thereof, a rating of at least A-1 from S&P or at least P-1 from
Moody's; (iv) certificates of deposit or bankers' acceptances maturing within
one year after such date and issued or accepted by any Lender or by any
commercial bank organized under the laws of the United States of America or any
state thereof or the District of Columbia that (a) is at least "adequately
capitalized" (as defined in the regulations of its primary Federal banking
regulator) and (b) has Tier 1 capital (as defined in such regulations) of not
less than $100,000,000; and (v) shares of any money market mutual fund that (a)
has at least 95% of its assets invested continuously in the types of investments
referred to in clauses (i) and (ii) above, (b) has net assets of not less than
$500,000,000, and (c) has the highest rating obtainable from either S&P or
Moody's.
"CERTIFICATE RE NON-BANK STATUS" means a certificate substantially in
the form of Exhibit XIII annexed hereto delivered by a Lender to Administrative
Agent pursuant to subsection 2.7B(iii).
"CLOSING DATE" means April 15, 1997.
"COLLATERAL" means, collectively, all of the real, personal and mixed
property (including capital stock) in which Liens are purported to be granted
pursuant to the Collateral Documents as security for the Obligations.
"COLLATERAL DOCUMENTS" means the Company Copyright Security Agreement,
the Company Pledge Agreement, the Company Security Agreement, the Company
Trademark Security Agreement, the Holdings Pledge Agreement, the Subsidiary
Pledge Agreements, the Subsidiary Security Agreements, the Subsidiary Trademark
Security Agreements, the Affiliated Stockholder Pledge Agreements, the Mortgages
and all other instruments or documents delivered by any Loan Party pursuant to
this Agreement or any of the other Loan Documents in order to grant to
Administrative Agent, on behalf of Lenders, a Lien on any real, personal or
mixed property of that Loan Party as security for the Obligations.
"COMMERCIAL LETTER OF CREDIT" means any letter of credit or similar
instrument issued for the purpose of providing the primary payment mechanism in
connection with the purchase of any materials, goods or services by Company or
any of its Subsidiaries in the ordinary course of business of Company or such
Subsidiary.
"COMMITMENTS" means the commitments of Lenders to
make Loans as set forth in subsection 2.1A.
"COMPANY" has the meaning assigned to that term in
the introduction to this Agreement.
"COMPANY COPYRIGHT SECURITY AGREEMENT" means the Company Copyright
Security Agreement executed and delivered by Company on the Closing Date,
substantially in the form of Exhibit XIV annexed hereto, as such Company
Copyright Security Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"COMPANY PLEDGE AGREEMENT" means the Company Pledge Agreement executed
and delivered by Company on the Closing Date, substantially in the form of
Exhibit XV annexed hereto, as such Company Pledge Agreement may thereafter be
amended, supplemented or otherwise modified from time to time.
"COMPANY SECURITY AGREEMENT" means the Company Security Agreement
executed and delivered by Company on the Closing Date, substantially in the form
of Exhibit XVI annexed hereto, as such Company Security Agreement may thereafter
be amended, supplemented or otherwise modified from time to time.
"COMPANY TRADEMARK SECURITY AGREEMENT" means the Company Trademark
Security Agreement executed and delivered by Company on the Closing Date,
substantially in the form of Exhibit XVII annexed hereto, as such Company
Trademark Security Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"COMPLIANCE CERTIFICATE" means a certificate substantially in the form
of Exhibit VIII annexed hereto delivered to Agents and Lenders by Company
pursuant to subsection 6.1(iv).
"CONFORMING LEASEHOLD INTEREST" means any Recorded Leasehold Interest
as to which the lessor has agreed in writing for the benefit of Administrative
Agent (which writing has been delivered to Administrative Agent), whether under
the terms of the applicable lease, under the terms of a Landlord Consent and
Estoppel, or otherwise, to the matters described in the definition of "Landlord
Consent and Estoppel," which interest, if a subleasehold or sub-subleasehold
interest, is not subject to any contrary restrictions contained in a superior
lease or sublease.
"CONSOLIDATED EBITDA" means, for any period, the sum of the amounts
for such period of (i) Consolidated Net Income, (ii) Consolidated Interest
Expense, (iii) provisions for taxes based on income, (iv) total depreciation
expense, (v) total amortization expense, and (vi) other non-cash items reducing
Consolidated Net Income less other non-cash items increasing Consolidated Net
Income, all of the foregoing as determined on a consolidated basis for Company
and its Subsidiaries in conformity with GAAP.
"CONSOLIDATED CAPITAL EXPENDITURES" means, for any period, the sum of
(i) the aggregate of all expenditures (whether paid in cash or other
consideration or accrued as a liability and including that portion of Capital
Leases which is capitalized on the consolidated balance sheet of Company and its
Subsidiaries) by Company and its Subsidiaries during that period that, in
conformity with GAAP, are included in "additions to property, plant or
equipment" or comparable items reflected in the consolidated statement of cash
flows of Company and its Subsidiaries plus (ii) to the extent not covered by
clause (i) of this definition, the aggregate of all expenditures by Company and
its Subsidiaries during that period to acquire (by purchase or otherwise) the
business, property or fixed assets of any Person, or the stock or other evidence
of beneficial ownership of any Person that, as a result of such acquisition,
becomes a Subsidiary of Company minus (iii), to the extent of any expenditures
actually made, the proceeds of any Additional Sale and Leaseback Transaction
that relates to assets for which such expenditures were made (such deduction to
be made in the period for which the expenditure was made); provided that any
deduction in a Fiscal Year made pursuant to clause (iii) may not exceed
$5,000,000.
"CONSOLIDATED CURRENT ASSETS" means, as at any date of determination,
the total assets of Company and its Subsidiaries on a consolidated basis which
may properly be classified as current assets in conformity with GAAP, excluding
Cash and Cash Equivalents.
"CONSOLIDATED CURRENT LIABILITIES" means, as at any date of
determination, the total liabilities of Company and its Subsidiaries on a
consolidated basis which may properly be classified as current liabilities in
conformity with GAAP, excluding the current portions of Funded Debt and Capital
Leases.
"CONSOLIDATED EXCESS CASH FLOW" means, for any period, an amount (if
positive) equal to (i) the sum, without duplication, of the amounts for such
period of (a) Consolidated EBITDA and (b) the Consolidated Working Capital
Adjustment minus (ii) the sum, without duplication, of the amounts for such
period of (a) voluntary and scheduled repayments of Consolidated Total Debt
(excluding repayments of Revolving Loans except to the extent the Revolving Loan
Commitments are permanently reduced in connection with such repayments), (b)
Consolidated Capital Expenditures (without duplication, net of any proceeds of
any related financings with respect to such expenditures), (c) Consolidated
Interest Expense, (d) the provision for current taxes based on income of Company
and its Subsidiaries and payable in cash with respect to such period and (e) the
Carry Over Capital Expenditures Amount.
"CONSOLIDATED FIXED CHARGES" means, for any period, the sum (without
duplication) of the amounts for such period of (i) Consolidated Interest
Expense, (ii) provisions for taxes based on income, and (iii) scheduled
principal payments in respect of Consolidated Total Debt, all of the foregoing
as determined on a consolidated basis for Company and its Subsidiaries in
conformity with GAAP.
"CONSOLIDATED INTEREST EXPENSE" means, for any period, total interest
expense (including that portion attributable to Capital Leases in accordance
with GAAP and capitalized interest) of Company and its Subsidiaries on a
consolidated basis with respect to all outstanding Indebtedness of Company and
its Subsidiaries, including all commissions, discounts and other fees and
charges owed with respect to letters of credit and bankers' acceptance financing
and net costs under Interest Rate Agreements, but excluding, however, any
amounts referred to in subsection 2.3 payable to Arranger and Administrative
Agent on or before the Closing Date.
"CONSOLIDATED LEVERAGE RATIO" means, for any Fiscal Quarter, the ratio
of (a) Consolidated Total Debt as of the last day of such Fiscal Quarter to (b)
Consolidated EBITDA for the consecutive four Fiscal Quarters ending on the last
day of such Fiscal Quarter.
"CONSOLIDATED NET INCOME" means, for any period, the net income (or
loss) of Company and its Subsidiaries on a consolidated basis for such period
taken as a single accounting period determined in conformity with GAAP; provided
that there shall be excluded (i) the income (or loss) of any Person (other than
a Subsidiary of Company) in which any other Person (other than Company or any of
its Subsidiaries) has a joint interest, except to the extent of the amount of
dividends or other distributions actually paid to Company or any of its
Subsidiaries by such Person during such period, (ii) the income (or loss) of any
Person accrued prior to the date it becomes a Subsidiary of Company or is merged
into or consolidated with Company or any of its Subsidiaries or that Person's
assets are acquired by Company or any of its Subsidiaries, (iii) the income of
any Subsidiary of Company to the extent that the declaration or payment of
dividends or similar distributions by that Subsidiary of that income is not at
the time permitted by operation of the terms of its charter or any agreement,
instrument, judgment, decree, order, statute, rule or governmental regulation
applicable to that Subsidiary, (iv) any after-tax gains or losses attributable
to Asset Sales or returned surplus assets of any Pension Plan, and (v) (to the
extent not included in clauses (i) through (iv) above) any net extraordinary
gains or net non-cash extraordinary losses.
"CONSOLIDATED NET WORTH" means, as at any date of determination, the
sum of the capital stock and additional paid-in capital plus retained earnings
(or minus accumulated deficits) of Company and its Subsidiaries on a
consolidated basis determined in conformity with GAAP.
"CONSOLIDATED RENTAL PAYMENTS" means, for any period, the aggregate
amount of all rents paid or payable by Company and its Subsidiaries on a
consolidated basis during that period under all Capital Leases and Operating
Leases to which Company or any of its Subsidiaries is a party as lessee.
"CONSOLIDATED TOTAL DEBT" means, as at any date of determination, the
aggregate stated balance sheet amount of all Indebtedness of Company and its
Subsidiaries, determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED WORKING CAPITAL" means, as at any date of determination,
the excess (or deficit) of Consolidated Current Assets over Consolidated Current
Liabilities.
"CONSOLIDATED WORKING CAPITAL ADJUSTMENT" means, for any period on a
consolidated basis, the amount (which may be a negative number) by which
Consolidated Working Capital as of the beginning of such period exceeds (or is
less than) Consolidated Working Capital as of the end of such period.
"CONTINGENT OBLIGATION", as applied to any Person, means any direct or
indirect liability, contingent or otherwise, of that Person (i) with respect to
any Indebtedness, lease, dividend or other obligation of another if the primary
purpose or intent thereof by the Person incurring the Contingent Obligation is
to provide assurance to the obligee of such obligation of another that such
obligation of another will be paid or discharged, or that any agreements
relating thereto will be complied with, or that the holders of such obligation
will be protected (in whole or in part) against loss in respect thereof, (ii)
with respect to any letter of credit issued for the account of that Person or as
to which that Person is otherwise liable for reimbursement of drawings, or (iii)
under Hedge Agreements. Contingent Obligations shall include (a) the direct or
indirect guaranty, endorsement (otherwise than for collection or deposit in the
ordinary course of business), co-making, discounting with recourse or sale with
recourse by such Person of the obligation of another, (b) the obligation to make
take-or-pay or similar payments if required regardless of non-performance by any
other party or parties to an agreement, and (c) any liability of such Person for
the obligation of another through any agreement (contingent or otherwise) (X) to
purchase, repurchase or otherwise acquire such obligation or any security
therefor, or to provide funds for the payment or discharge of such obligation
(whether in the form of loans, advances, stock purchases, capital contributions
or otherwise) or (Y) to maintain the solvency or any balance sheet item, level
of income or financial condition of another if, in the case of any agreement
described under subclauses (X) or (Y) of this sentence, the primary purpose or
intent thereof is as described in the preceding sentence. The amount of any
Contingent Obligation shall be equal to the amount of the obligation so
guaranteed or otherwise supported or, if less, the amount to which such
Contingent Obligation is specifically limited.
"CONTRACTUAL OBLIGATION", as applied to any Person, means any
provision of any Security issued by that Person or of any material indenture,
mortgage, deed of trust, contract, undertaking, agreement or other instrument to
which that Person is a party or by which it or any of its properties is bound or
to which it or any of its properties is subject.
"CURRENCY AGREEMENT" means any foreign exchange contract, currency
swap agreement, futures contract, option contract, synthetic cap or other
similar agreement or arrangement to which Company or any of its Subsidiaries is
a party.
"DEPOSIT ACCOUNT" means a demand, time, savings, passbook or like
account with a bank, savings and loan association, credit union or like
organization, other than an account evidenced by a negotiable certificate of
deposit.
"DLJ" has the meaning assigned to that term in the
introduction to this Agreement.
"DOLLARS" and the sign "$" mean the lawful money of
the United States of America.
"ELIGIBLE ASSIGNEE" means (A) (i) a commercial bank organized under
the laws of the United States or any state thereof; (ii) a savings and loan
association or savings bank organized under the laws of the United States or any
state thereof; (iii) a commercial bank organized under the laws of any other
country or a political subdivision thereof; provided that (x) such bank is
acting through a branch or agency located in the United States or (y) such bank
is organized under the laws of a country that is a member of the Organization
for Economic Cooperation and Development or a political subdivision of such
country; and (iv) any other entity which is an "accredited investor" (as defined
in Regulation D under the Securities Act) which extends credit or buys loans as
one of its businesses including insurance companies, mutual funds and lease
financing companies; and (B) any Lender and any Affiliate of any Lender;
provided that no Affiliate of Company shall be an Eligible Assignee.
"EMPLOYEE BENEFIT PLAN" means any "employee benefit plan" as defined
in Section 3(3) of ERISA which is or was maintained or contributed to by
Company, any of its Subsidiaries or any of their respective ERISA Affiliates.
"ENVIRONMENTAL CLAIM" means any investigation, notice, notice of
violation, claim, action, suit, proceeding, demand, abatement order or other
order or directive (conditional or otherwise), by any governmental authority or
any other Person, arising (i) pursuant to or in connection with any actual or
alleged violation of any Environmental Law, (ii) in connection with any
Hazardous Materials or any actual or alleged Hazardous Materials Activity, or
(iii) in connection with any actual or alleged damage, injury, threat or harm to
health, safety, natural resources or the environment.
"ENVIRONMENTAL LAWS" means any and all current or future statutes,
ordinances, orders, rules, regulations, guidance documents, judgments,
Governmental Authorizations, or any other requirements of governmental
authorities relating to (i) environmental matters, including those relating to
any Hazardous Materials Activity, (ii) the generation, use, storage,
transportation or disposal of Hazardous Materials, or (iii) occupational safety
and health, industrial hygiene, land use or the protection of human, plant or
animal health or welfare, in any manner applicable to Company or any of its
Subsidiaries or any Facility, including the Comprehensive Environmental
Response, Compensation, and Liability Act (42 U.S.C. Section 9601 et seq.), the
Hazardous Materials Transportation Act (49 U.S.C. Section 1801 et seq.), the
Resource Conservation and Recovery Act (42 U.S.C. Section
6901 et seq.), the Federal Water Pollution Control Act (33 U.S.C. Section 1251
et seq.), the Clean Air Act (42 U.S.C. Section 7401 et seq.), the Toxic
Substances Control Act (15 U.S.C. Section 2601 et seq.), the Federal
Insecticide, Fungicide and Rodenticide Act (7 U.S.C. Section 136 et seq.), the
Occupational Safety and Health Act (29 U.S.C. Section 651 et seq.), the Oil
Pollution Act (33 U.S.C. Section 2701 et seq) and the Emergency Planning and
Community Right-to-Know Act (42 U.S.C. Section 11001 et seq.), each as amended
or supplemented, any analogous present or future state or local statutes or
laws, and any regulations promulgated pursuant to any of the foregoing.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any successor thereto.
"ERISA AFFILIATE" means, as applied to any Person, (i) any corporation
which is a member of a controlled group of corporations within the meaning of
Section 414(b) of the Internal Revenue Code of which that Person is a member;
(ii) any trade or business (whether or not incorporated) which is a member of a
group of trades or businesses under common control within the meaning of Section
414(c) of the Internal Revenue Code of which that Person is a member; and (iii)
any member of an affiliated service group within the meaning of Section 414(m)
or (o) of the Internal Revenue Code of which that Person, any corporation
described in clause (i) above or any trade or business described in clause (ii)
above is a member. Any former ERISA Affiliate of Company or any of its
Subsidiaries shall continue to be considered an ERISA Affiliate of Company or
such Subsidiary within the meaning of this definition with respect to the period
such entity was an ERISA Affiliate of Company or such Subsidiary and with
respect to liabilities arising after such period for which Company or such
Subsidiary could be liable under the Internal Revenue Code or ERISA.
"ERISA EVENT" means (i) a "reportable event" within the meaning of
Section 4043 of ERISA and the regulations issued thereunder with respect to any
Pension Plan (excluding those for which the provision for 30-day notice to the
PBGC has been waived by regulation); (ii) the failure to meet the minimum
funding standard of Section 412 of the Internal Revenue Code with respect to any
Pension Plan (whether or not waived in accordance with Section 412(d) of the
Internal Revenue Code) or the failure to make by its due date a required
installment under Section 412(m) of the Internal Revenue Code with respect to
any Pension Plan or the failure to make any required contribution to a
Multiemployer Plan; (iii) the provision by the administrator of any Pension Plan
pursuant to Section 4041(a)(2) of ERISA of a notice of intent to terminate such
plan in a distress termination described in Section 4041(c) of ERISA; (iv) the
withdrawal by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates from any Pension Plan with two or more contributing sponsors or the
termination of any such Pension Plan resulting in liability pursuant to Section
4063 or 4064 of ERISA; (v) the institution by the PBGC of proceedings to
terminate any Pension Plan, or the occurrence of any event or condition which
might constitute grounds under ERISA for the termination of, or the appointment
of a trustee to administer, any Pension Plan; (vi) the imposition of liability
on Company, any of its Subsidiaries or any of their respective ERISA Affiliates
pursuant to Section 4062(e) or 4069 of ERISA or by reason of the application of
Section 4212(c) of ERISA; (vii) the withdrawal of Company, any of its
Subsidiaries or any of their respective ERISA Affiliates in a complete or
partial withdrawal (within the meaning of Sections 4203 and 4205 of ERISA) from
any Multiemployer Plan if there is any potential liability therefor, or the
receipt by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates of notice from any Multiemployer Plan that it is in reorganization or
insolvency pursuant to Section 4241 or 4245 of ERISA, or that it intends to
terminate or has terminated under Section 4041A or 4042 of ERISA; (viii) the
occurrence of an act or omission which could give rise to the imposition on
Company, any of its Subsidiaries or any of their respective ERISA Affiliates of
fines, penalties, taxes or related charges under Chapter 43 of the Internal
Revenue Code or under Section 409, Section 502(c), (i) or (l), or Section 4071
of ERISA in respect of any Employee Benefit Plan; (ix) the assertion of a
material claim (other than routine claims for benefits) against any Employee
Benefit Plan other than a Multiemployer Plan or the assets thereof, or against
Company, any of its Subsidiaries or any of their respective ERISA Affiliates in
connection with any Employee Benefit Plan; (x) receipt from the Internal Revenue
Service of notice of the failure of any Pension Plan (or any other Employee
Benefit Plan intended to be qualified under Section 401(a) of the Internal
Revenue Code) to qualify under Section 401(a) of the Internal Revenue Code, or
the failure of any trust forming part of any Pension Plan to qualify for
exemption from taxation under Section 501(a) of the Internal Revenue Code; or
(xi) the imposition of a Lien pursuant to Section 401(a)(29) or 412(n) of the
Internal Revenue Code or pursuant to ERISA with respect to any Pension Plan.
"ESCROW ACCOUNT" means the account established
pursuant to subsection 6.11.
"EURODOLLAR RATE LOANS" means Loans bearing interest at rates
determined by reference to the Adjusted Eurodollar Rate as provided in
subsection 2.2A.
"EVENT OF DEFAULT" means each of the events set forth
in Section 8.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended
from time to time, and any successor statute.
"EXISTING CREDIT AGREEMENT" has the meaning set forth
in the recitals hereto.
"EXISTING LENDER" has the meaning set forth in the
recitals hereto.
"FACILITIES" means any and all real property (including all buildings,
fixtures or other improvements located thereon) now, hereafter or heretofore
owned, leased, operated or used by Company or any of its Subsidiaries or any of
their respective predecessors or Affiliates.
"FEDERAL FUNDS EFFECTIVE RATE" means, for any period, a fluctuating
interest rate 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 which is a Business Day, the average of the quotations for such day on such
transactions received by Administrative Agent from three Federal funds brokers
of recognized standing selected by Administrative Agent.
"FINANCIAL PLAN" has the meaning assigned to that
term in subsection 6.1(xiii).
"FIRST PRIORITY" means, with respect to any Lien purported to be
created in any Collateral pursuant to any Collateral Document, that (i) such
Lien has priority over any other Lien on such Collateral (other than Permitted
Encumbrances and Liens permitted pursuant to subsection 7.2A) and (ii) such Lien
is the only Lien (other than Permitted Encumbrances and Liens permitted pursuant
to subsection 7.2A) to which such Collateral is subject.
"FISCAL QUARTER" means a fiscal quarter of any Fiscal
Year.
"FISCAL YEAR" means the fiscal year of Company and its Subsidiaries
ending on the last Monday of December of each calendar year.
"FLOOD HAZARD PROPERTY" means a Mortgaged Property located in an area
designated by the Federal Emergency Management Agency as having special flood or
mud slide hazards.
"FUNDED DEBT", as applied to any Person, means all Indebtedness of
that Person (including any current portions thereof) which by its terms or by
the terms of any instrument or agreement relating thereto matures more than one
year from, or is directly renewable or extendable at the option of that Person
to a date more than one year from (including an option of that Person under a
revolving credit or similar agreement obligating the lender or lenders to extend
credit over a period of one year or more from), the date of the creation
thereof.
"FUNDING AND PAYMENT OFFICE" means (i) the office of Administrative
Agent and Swing Line Lender located at _______________________________________
or (ii) such other office of Administrative Agent and Swing Line Lender as may
from time to time hereafter be designated as such in a written notice delivered
by Administrative Agent and Swing Line Lender to Company and each Lender.
"FUNDING DATE" means the date of the funding of a
Loan.
"GAAP" means, subject to the limitations on the application thereof
set forth in subsection 1.2, generally accepted accounting principles set forth
in opinions and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in such other
statements by such other entity as may be approved by a significant segment of
the accounting profession, in each case as the same are applicable to the
circumstances as of the date of determination.
"GOVERNMENTAL AUTHORIZATION" means any permit, license, authorization,
plan, directive, consent order or consent decree of or from any federal, state
or local governmental authority, agency or court.
"GUARANTIES" means the Holdings Guaranty, the
Subsidiary Guaranty and the Affiliated Stockholder Pledge
Agreement.
"HAZARDOUS MATERIALS" means (i) any chemical, material or substance at
any time defined as or included in the definition of "hazardous substances",
"hazardous wastes", "hazardous materials", "extremely hazardous waste", acutely
hazardous waste", "radioactive waste", "biohazardous waste", "pollutant", "toxic
pollutant", "contaminant", "restricted hazardous waste", "infectious waste",
"toxic substances", or any other term or expression intended to define, list or
classify substances by reason of properties harmful to health, safety or the
indoor or outdoor environment (including harmful properties such as
ignitability, corrosivity, reactivity, carcinogenicity, toxicity, reproductive
toxicity, "TCLP toxicity" or "EP toxicity" or words of similar import under any
applicable Environmental Laws); (ii) any oil, petroleum, petroleum fraction or
petroleum derived substance; (iii) any drilling fluids, produced waters and
other wastes associated with the exploration, development or production of crude
oil, natural gas or geothermal resources; (iv) any flammable substances or
explosives; (v) any radioactive materials; (vi) any asbestos-containing
materials; (vii) urea formaldehyde foam insulation; (viii) electrical equipment
which contains any oil or dielectric fluid containing polychlorinated biphenyls;
(ix) pesticides; and (x) any other chemical, material or substance, exposure to
which is prohibited, limited or regulated by any governmental authority or which
may or could pose a hazard to the health and safety of the owners, occupants or
any Persons in the vicinity of any Facility or to the indoor or outdoor
environment.
"HAZARDOUS MATERIALS ACTIVITY" means any past, current, proposed or
threatened activity, event or occurrence involving any Hazardous Materials,
including the use, manufacture, possession, storage, holding, presence,
existence, location, Release, threatened Release, discharge, placement,
generation, transportation, processing, construction, treatment, abatement,
removal, remediation, disposal, disposition or handling of any Hazardous
Materials, and any corrective action or response action with respect to any of
the foregoing.
"HEDGE AGREEMENT" means an Interest Rate Agreement or a Currency
Agreement designed to hedge against fluctuations in interest rates or currency
values, respectively.
"HOLDINGS" has the meaning assigned to that term in
the recitals hereto.
"HOLDINGS GUARANTY" means the Holdings Guaranty executed and delivered
by Holdings on the Closing Date, substantially in the form of Exhibit XXII
annexed hereto, as such Holdings Guaranty may be amended, supplemented or
otherwise modified from time to time.
"HOLDINGS PLEDGE AGREEMENT" means the Pledge Agreement executed and
delivered by Holdings on the Closing Date, substantially in the form of Exhibit
XXI annexed hereto, as such Holdings Pledge Agreement may be amended,
supplemented or otherwise modified from time to time.
"INDEBTEDNESS", as applied to any Person, means (i) all indebtedness
for borrowed money, (ii) that portion of obligations with respect to Capital
Leases that is properly classified as a liability on a balance sheet in
conformity with GAAP, (iii) notes payable and drafts accepted representing
extensions of credit whether or not representing obligations for borrowed money,
(iv) any obligation owed for all or any part of the deferred purchase price of
property or services (excluding any such obligations incurred under ERISA),
which purchase price is (a) due more than six months from the date of incurrence
of the obligation in respect thereof or (b) evidenced by a note or similar
written instrument, and (v) all indebtedness secured by any Lien on any property
or asset owned or held by that Person regardless of whether the indebtedness
secured thereby shall have been assumed by that Person or is nonrecourse to the
credit of that Person. Obligations under Interest Rate Agreements and Currency
Agreements constitute (X) in the case of Hedge Agreements, Contingent
Obligations, and (Y) in all other cases, Investments, and in neither case
constitute Indebtedness.
"INDEMNITEE" has the meaning assigned to that term in
subsection 10.3.
"INTELLECTUAL PROPERTY" means all patents, trademarks, tradenames,
copyrights, technology, know-how and processes used in or necessary for the
conduct of the business of Company and its Subsidiaries as currently conducted
that are material to the condition (financial or otherwise), business or
operations of Company and its Subsidiaries, taken as a whole.
"INTEREST PAYMENT DATE" means (i) with respect to any Base Rate Loan,
the last day of each March, June, September and December of each year,
commencing on the first such date to occur after the Closing Date, and (ii) with
respect to any Eurodollar Rate Loan, the last day of each Interest Period
applicable to such Loan; provided that in the case of each Interest Period of
longer than three months "Interest Payment Date" shall also include each date
that is three months, or an integral multiple thereof, after the commencement of
such Interest Period.
"INTEREST PERIOD" has the meaning assigned to that
term in subsection 2.2B.
"INTEREST RATE AGREEMENT" means any interest rate swap agreement,
interest rate cap agreement, interest rate collar agreement or other similar
agreement or arrangement to which Company or any of its Subsidiaries is a party.
"INTEREST RATE DETERMINATION DATE" means, with respect to any Interest
Period, the second Business Day prior to the first day of such Interest Period.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as
amended to the date hereof and from time to time hereafter, and any successor
statute.
"INVENTORY" means, with respect to any Person as of any date of
determination, all goods, merchandise and other personal property which are then
held by such Person for sale or lease, including raw materials and work in
process.
"INVESTMENT" means (i) any direct or indirect purchase or other
acquisition by Company or any of its Subsidiaries of, or of a beneficial
interest in, any Securities of any other Person (including any Subsidiary of
Company), (ii) any direct or indirect redemption, retirement, purchase or other
acquisition for value, by any Subsidiary of Company from any Person other than
Company or any of its Subsidiaries, of any equity Securities of such Subsidiary,
(iii) any direct or indirect loan, advance (other than advances to employees for
moving, entertainment and travel expenses, drawing accounts and similar
expenditures in the ordinary course of business) or capital contribution by
Company or any of its Subsidiaries to any other Person (other than a
wholly-owned Subsidiary of Company), including all indebtedness and accounts
receivable from that other Person that are not current assets or did not arise
from sales to that other Person in the ordinary course of business, or (iv)
Interest Rate Agreements or Currency Agreements not constituting Hedge
Agreements. The amount of any Investment shall be the original cost of such
Investment plus the cost of all additions thereto, without any adjustments for
increases or decreases in value, or write-ups, write-downs or write-offs with
respect to such Investment.
"IP COLLATERAL" means, collectively, the Collateral
under the Company Copyright Security Agreement, the Company
Trademark Security Agreement and the Subsidiary Trademark
Security Agreements.
"ISSUING LENDER" means, with respect to any Letter of Credit, the
Lender which agrees or is otherwise obligated to issue such Letter of Credit,
determined as provided in subsection 3.1B(ii).
"JOINT VENTURE" means a joint venture, partnership or other similar
arrangement, whether in corporate, partnership or other legal form; provided
that in no event shall any corporate Subsidiary of any Person be considered to
be a Joint Venture to which such Person is a party.
"LANDLORD CONSENT AND ESTOPPEL" means, with respect to any Leasehold
Property, a letter, certificate or other instrument in writing from the lessor
under the related lease, satisfactory in form and substance to Agents, pursuant
to which such lessor agrees, for the benefit of Administrative Agent, (i) that
without any further consent of such lessor or any further action on the part of
the Loan Party holding such Leasehold Property, such Leasehold Property may be
encumbered pursuant to a Mortgage and may be assigned to the purchaser at a
foreclosure sale or in a transfer in lieu of such a sale (and to a subsequent
third party assignee if any Agent, any Lender, or an Affiliate of either so
acquires such Leasehold Property), (ii) that such lessor shall not terminate
such lease as a result of a default by such Loan Party thereunder without first
giving Agents notice of such default and at least 60 days (or, if such default
cannot reasonably be cured by Agents within such period, such longer period as
may reasonably be required) to cure such default, (iii) to the matters contained
in a Collateral Access Agreement, and (iv) to such other matters relating to
such Leasehold Property as Agents may reasonably request.
"LEASEHOLD PROPERTY" means any leasehold interest of any Loan Party as
lessee under any lease of real property.
"LENDER" and "LENDERS" means the persons identified as "Lenders" and
listed on the signature pages of this Agreement, together with their successors
and permitted assigns pursuant to subsection 10.1, and the term "Lenders" shall
include Swing Line Lender unless the context otherwise requires.
"LETTER OF CREDIT" or "LETTERS OF CREDIT" means Commercial Letters of
Credit and Standby Letters of Credit issued or to be issued by Issuing Lenders
for the account of
Company pursuant to subsection 3.1.
"LETTER OF CREDIT USAGE" means, as at any date of determination, the
sum of (i) the maximum aggregate amount which is or at any time thereafter may
become available for drawing under all Letters of Credit then outstanding plus
(ii) the aggregate amount of all drawings under Letters of Credit honored by
Issuing Lenders and not theretofore reimbursed by Company (including any such
reimbursement out of the proceeds of Revolving Loans pursuant to subsection
3.3B).
"LIEN" means any lien, mortgage, pledge, assignment, security
interest, charge or encumbrance of any kind (including any conditional sale or
other title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest) and any option, trust or other
preferential arrangement having the practical effect of any of the foregoing.
"LOAN" or "LOANS" means one or more of the Tranche A Term Loans,
Tranche B Term Loans, Revolving Loans or Swing
Line Loans or any combination thereof.
"LOAN DOCUMENTS" means this Agreement, the Notes, the Letters of
Credit (and any applications for, or reimbursement agreements or other documents
or certificates executed by Company in favor of an Issuing Lender relating to,
the Letters of Credit), the Guaranties and the Collateral Documents.
"LOAN PARTY" means each of Company, the Affiliated Stockholders,
Holdings and any of Company's Subsidiaries from time to time executing a Loan
Document, and "LOAN PARTIES" means all such Persons, collectively.
"MARGIN STOCK" has the meaning assigned to that term in Regulation U
of the Board of Governors of the Federal Reserve System as in effect from time
to time.
"MASTER ASSIGNMENT AGREEMENT" means that certain Master Assignment
Agreement, dated the date hereof, among Company, the Existing Lender and DLJ
pursuant to which the Existing Lender assigns its loans, rights and obligations
under the Existing Loan Documents to DLJ and DLJ purchases from Existing Lender,
such oans, rights and obligations.
"MATERIAL ADVERSE EFFECT" means (i) a material adverse effect upon the
business, operations, properties, assets, condition (financial or otherwise) or
prospects of (A) Holdings or (B) Company and its Subsidiaries taken as a whole
or (ii) the impairment of the ability of any Loan Party to perform, or of Agents
or Lenders to enforce, the Obligations.
"MATERIAL CONTRACT" means any contract or other arrangement to which
Company or any of its Subsidiaries is a party (other than the Loan Documents)
for which breach, nonperformance, cancellation or failure to renew could have a
Material Adverse Effect.
"MATERIAL LEASEHOLD PROPERTY" means a Leasehold Property reasonably
determined by Agents to be of material value as Collateral or of material
importance to the operations of Company or any of its Subsidiaries.
"MAXIMUM CONSOLIDATED CAPITAL EXPENDITURES AMOUNT"
has the meaning set forth in subsection 7.8.
"MORTGAGE" means (i) a security instrument (whether designated as a
deed of trust or a mortgage or by any similar title) executed and delivered by
any Loan Party, substantially in the form of Exhibit XXIII annexed hereto or in
such other form as may be approved by Agents in their sole discretion, in each
case with such changes thereto as may be recommended by Administrative Agent's
local counsel based on local laws or customary local mortgage or deed of trust
practices, or (ii) at the option of Agents, in the case of an Additional
Mortgaged Property (as defined in subsection 6.9), an amendment to an existing
Mortgage, in form satisfactory to Agents, adding such Additional Mortgaged
Property to the Real Property Assets encumbered by such existing Mortgage, in
either case as such security instrument or amendment may be amended,
supplemented or otherwise modified from time to time. "MORTGAGES" means all such
instruments, including the Assigned Mortgages and any Additional Mortgages (as
defined in subsection 6.9), collectively.
"MORTGAGED PROPERTY" means a Closing Date Mortgaged Property (as
defined in subsection 4.1D) or an Additional Mortgaged Property (as defined in
subsection 6.9).
"MULTIEMPLOYER PLAN" means any Employee Benefit Plan which is a
"multiemployer plan" as defined in Section 3(37) of ERISA.
"NET ASSET SALE PROCEEDS" means, with respect to any Asset Sale, Cash
payments (including any Cash received by way of deferred payment pursuant to, or
by monetization of, a note receivable or otherwise, but only as and when so
received) received from such Asset Sale, net of any bona fide direct costs
incurred in connection with such Asset Sale, including (i) income taxes
reasonably estimated to be actually payable within two years of the date of such
Asset Sale as a result of any gain recognized in connection with such Asset Sale
and (ii) payment of the outstanding principal amount of, premium or penalty, if
any, and interest on any Indebtedness (other than the Loans) that is secured by
a Lien on the stock or assets in question and that is required to be repaid
under the terms thereof as a result of such Asset Sale.
"NET INSURANCE/CONDEMNATION PROCEEDS" means any Cash payments or
proceeds received by Company or any of its Subsidiaries (i) under any business
interruption or casualty insurance policy in respect of a covered loss
thereunder or (ii) as a result of the taking of any assets of Company or any of
its Subsidiaries by any Person pursuant to the power of eminent domain,
condemnation or otherwise, or pursuant to a sale of any such assets to a
purchaser with such power under threat of such a taking, in each case net of any
actual and reasonable documented costs incurred by Company or any of its
Subsidiaries in connection with the adjustment or settlement of any claims of
Company or such Subsidiary in respect thereof.
"NOTES" means one or more of the Tranche A Term Notes, Tranche B Term
Notes, Revolving Notes or Swing Line
Note or any combination thereof.
"NOTICE OF BORROWING" means a notice substantially in the form of
Exhibit I annexed hereto delivered by Company to Administrative Agent pursuant
to subsection 2.1B with respect to a proposed borrowing.
"NOTICE OF CONVERSION/CONTINUATION" means a notice substantially in
the form of Exhibit II annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 2.2D with respect to a proposed conversion or
continuation of the applicable basis for determining the interest rate with
respect to the Loans specified therein.
"NOTICE OF ISSUANCE OF LETTER OF CREDIT" means a notice substantially
in the form of Exhibit III annexed hereto delivered by Company to Administrative
Agent pursuant to subsection 3.1B(i) with respect to the proposed issuance of a
Letter of Credit.
"OBLIGATIONS" means all obligations of every nature of each Loan Party
from time to time owed to Arranger, Agents, Lenders or any of them under the
Loan Documents, whether for principal, interest, reimbursement of amounts drawn
under Letters of Credit, fees, expenses, indemnification or otherwise.
"OFFICER'S CERTIFICATE" means, as applied to any corporation, a
certificate executed on behalf of such corporation by its president or its chief
financial officer (or if there is no chief financial officer, its chief
accounting officer); provided that every Officer's Certificate with respect to
the compliance with a condition precedent to the making of any Loans hereunder
shall include (i) a statement that the officer or officers making or giving such
Officer's Certificate have read such condition and any definitions or other
provisions contained in this Agreement relating thereto, (ii) a statement that,
in the opinion of the signers, they have made or have caused to be made such
examination or investigation as is necessary to enable them to express an
informed opinion as to whether or not such condition has been complied with, and
(iii) a statement as to whether, in the opinion of the signers, such condition
has been complied with.
"OPERATING LEASE" means, as applied to any Person, any lease
(including leases that may be terminated by the lessee at any time) of any
property (whether real, personal or mixed) that is not a Capital Lease in
accordance with GAAP other than any such lease under which that Person is the
lessor.
"PBGC" means the Pension Benefit Guaranty Corporation
or any successor thereto.
"PENSION PLAN" means any Employee Benefit Plan, other than a
Multiemployer Plan, which is subject to Section 412 of the Internal Revenue Code
or Section 302 of ERISA.
"PERMITTED ENCUMBRANCES" means the following types of Liens (excluding
any such Lien imposed pursuant to Section 401(a)(29) or 412(n) of the Internal
Revenue Code or by ERISA, any such Lien relating to or imposed in connection
with any Environmental Claim, and any such Lien expressly prohibited by any
applicable terms of any of the Collateral Documents):
(i) Liens for taxes, assessments or governmental
charges or claims the payment of which is not, at the
time, required by subsection 6.3;
(ii) statutory Liens of landlords, statutory Liens of banks and rights
of set-off, statutory Liens of carriers, warehousemen, mechanics,
repairmen, workmen and materialmen, and other Liens imposed by law, in each
case incurred in the ordinary course of business (a) for amounts not yet
overdue or (b) for amounts that are overdue and that (in the case of any
such amounts overdue for a period in excess of 5 days) are being contested
in good faith by appropriate proceedings, so long as (1) such reserves or
other appropriate provisions, if any, as shall be required by GAAP shall
have been made for any such contested amounts, and (2) in the case of a
Lien with respect to any portion of the Collateral, such contest
proceedings conclusively operate to stay the sale of any portion of the
Collateral on account of such Lien;
(iii) Liens incurred or deposits made in the ordinary course of
business in connection with workers' compensation, unemployment insurance
and other types of social security, or to secure the performance of
tenders, statutory obligations, surety and appeal bonds, bids, leases,
government contracts, trade contracts, performance and return-of-money
bonds and other similar obligations (exclusive of obligations for the
payment of borrowed money), so long as no foreclosure, sale or similar
proceedings have been commenced with respect to any portion of the
Collateral on account thereof;
(iv) any attachment or judgment Lien not consti-
tuting an Event of Default under subsection 8.8;
(v) leases or subleases granted to third parties in accordance with
any applicable terms of the Collateral Documents and not interfering in any
material respect with the ordinary conduct of the business of Company or
any of its Subsidiaries or resulting in a material diminution in the value
of any Collateral as security for the Obligations;
(vi) easements, rights-of-way, restrictions, encroachments, and other
minor defects or irregularities in title, in each case which do not and
will not interfere in any material respect with the ordinary conduct of the
business of Company or any of its Subsidiaries or result in a material
diminution in the value of any Collateral as security for the Obligations;
(vii) any (a) interest or title of a lessor or sublessor under any
lease permitted by subsection 7.9, (b) restriction or encumbrance that the
interest or title of such lessor or sublessor may be subject to, or (c)
subordination of the interest of the lessee or sublessee under such lease
to any restriction or encumbrance referred to in the preceding clause (b),
so long as the holder of such restriction or encumbrance agrees to
recognize the rights of such lessee or sublessee under such lease;
(viii) Liens arising from filing UCC financing statements relating
solely to leases permitted by this Agreement;
(ix) Liens in favor of customs and revenue
authorities arising as a matter of law to secure payment
of customs duties in connection with the importation of
goods;
(x) any zoning or similar law or right reserved to
or vested in any governmental office or agency to control
or regulate the use of any real property;
(xi) Liens securing obligations (other than obligations representing
Indebtedness for borrowed money) under operating, reciprocal easement or
similar agreements entered into in the ordinary course of business of
Company and its Subsidiaries; and
(xii) licenses of patents, trademarks and other intellectual property
rights granted by Company or any of its Subsidiaries in the ordinary course
of business and not interfering in any material respect with the ordinary
conduct of the business of Company or such Subsidiary.
"PERSON" means and includes natural persons, corporations, limited
partnerships, general partnerships, limited liability companies, limited
liability partnerships, joint stock companies, Joint Ventures, associations,
companies, trusts, banks, trust companies, land trusts, business trusts or other
organizations, whether or not legal entities, and governments (whether federal,
state or local, domestic or foreign, and including political subdivisions
thereof) and agencies or other administrative or regulatory bodies thereof.
"PLEDGED COLLATERAL" means, collectively, the "Pledged Collateral" as
defined in the Company Pledge Agreement, the Holdings Pledge Agreement, the
Subsidiary Pledge Agreements and the Affiliated Stockholder Pledge Agreements.
"POTENTIAL EVENT OF DEFAULT" means a condition or event that, after
notice or lapse of time or both, would constitute an Event of Default.
"PRICING DISCOUNT PERIOD" means any period commencing on the 45th day
of a Fiscal Quarter that follows two consecutive Fiscal Quarters as to which an
APD Certificate has been delivered and ending on the 45th day following the end
of such Fiscal Quarter; provided that no such period may commence until after
the first anniversary of the Closing Date.
"PRIME RATE" means the rate that BIS announces from time to time as
its prime lending rate, as in effect from time to time. The Prime Rate is a
reference rate and does not necessarily represent the lowest or best rate
actually charged to any customer. BIS or any other Lender may make commercial
loans or other loans at rates of interest at, above or below the Prime Rate.
"PRO RATA SHARE" means (i) with respect to all payments, computations
and other matters relating to the Tranche A Term Loan Commitment or the Tranche
A Term Loan of any Lender, the percentage obtained by dividing (x) the Tranche A
Term Loan Exposure of that Lender by (y) the aggregate Tranche A Term Loan
Exposure of all Lenders, (ii) with respect to all payments, computations and
other matters relating to the Tranche B Term Loan Commitment or the Tranche B
Term Loan of any Lender, the percentage obtained by dividing (x) the Tranche B
Term Loan Exposure of that Lender by (y) the aggregate Tranche B Term Loan
Exposure of all Lenders, (iii) with respect to all payments, computations and
other matters relating to the Revolving Loan Commitment or the Revolving Loans
of any Lender or any Letters of Credit issued or participations therein
purchased by any Lender or any participations in any Swing Line Loans purchased
by any Lender, the percentage obtained by dividing (x) the Revolving Loan
Exposure of that Lender by (y) the aggregate Revolving Loan Exposure of all
Lenders, and (iv) for all other purposes with respect to each Lender, the
percentage obtained by dividing (x) the sum of the Tranche A Term Loan Exposure
of that Lender plus the Tranche B Term Loan Exposure of that Lender plus the
Revolving Loan Exposure of that Lender by (y) the sum of the aggregate Tranche A
Term Loan Exposure of all Lenders plus the aggregate Tranche B Term Loan
Exposure of all Lenders plus the aggregate Revolving Loan Exposure of all
Lenders, in any such case as the applicable percentage may be adjusted by
assignments permitted pursuant to subsection 10.1. The initial Pro Rata Share of
each Lender for purposes of each of clauses (i), (ii) and (iii) of the preceding
sentence is set forth opposite the name of that Lender in Schedule 2.1 annexed
hereto.
"PTO" means the United States Patent and Trademark Office or any
successor or substitute office in which filings are necessary or, in the opinion
of Administrative Agent, desirable in order to create or perfect Liens on any IP
Collateral.
"REAL PROPERTY ASSET" means, at any time of determination, any
interest then owned by any Loan Party in any real property.
"RECAPITALIZATION" means, collectively, the
Refinancing, the Sale and Leaseback Transactions and the
Repurchase.
"RECORDED LEASEHOLD INTEREST" means a Leasehold Property with respect
to which a Record Document (as hereinafter defined) has been recorded in all
places necessary or desirable, in the reasonable judgment of Agents, to give
constructive notice of such Leasehold Property to third-party purchasers and
encumbrancers of the affected real property. For purposes of this definition,
the term "RECORD DOCUMENT" means, with respect to any Leasehold Property, (a)
the lease evidencing such Leasehold Property or a memorandum thereof, executed
and acknowledged by the owner of the affected real property, as lessor, or (b)
if such Leasehold Property was acquired or subleased from the holder of a
Recorded Leasehold Interest, the applicable assignment or sublease document,
executed and acknowledged by such holder, in each case in form sufficient to
give such constructive notice upon recordation and otherwise in form reasonably
satisfactory to Agents.
"REFINANCING" has the meaning assigned to that term
in the Recitals hereof.
"REFUNDED SWING LINE LOANS" has the meaning assigned to that term in
subsection 2.1A(iv).
"REGULATION D" means Regulation D of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"REIMBURSEMENT DATE" has the meaning assigned to that
term in subsection 3.3B.
"RELEASE" means any release, spill, emission, leaking, pumping,
pouring, injection, escaping, deposit, disposal, discharge, dispersal, dumping,
leaching or migration of Hazardous Materials into the indoor or outdoor
environment (including the abandonment or disposal of any barrels, containers or
other closed receptacles containing any Hazardous Materials), including the
movement of any Hazardous Materials through the air, soil, surface water or
groundwater.
"REPURCHASE" has the meaning assigned to that term in
the Recitals hereof.
"REQUISITE LENDERS" means Lenders having or holding more than 51% of
the sum of (i) the aggregate Tranche A Term Loan Exposure of all Lenders plus
(ii) the aggregate Tranche B Term Loan Exposure of all Lenders plus (iii) the
aggregate Revolving Loan Exposure of all Lenders.
"RESTRICTED JUNIOR PAYMENT" means (i) any dividend or other
distribution, direct or indirect, on account of any shares of any class of stock
of Company now or hereafter outstanding, except a dividend payable solely in
shares of that class of stock to the holders of that class, (ii) any redemption,
retirement, sinking fund or similar payment, purchase or other acquisition for
value, direct or indirect, of any shares of any class of stock of Company now or
hereafter outstanding, (iii) any payment made to retire, or to obtain the
surrender of, any outstanding warrants, options or other rights to acquire
shares of any class of stock of Company now or hereafter outstanding, and (iv)
any payment or prepayment of principal of, premium, if any, or interest on, or
redemption, purchase, retirement, defeasance (including in-substance or legal
defeasance), sinking fund or similar payment with respect to, any Subordinated
Indebtedness that is not approved by Agents and Requisite Lenders.
"REVOLVING LOAN COMMITMENT" means the commitment of a Lender to make
Revolving Loans to Company pursuant to subsection 2.1A(iii), and "REVOLVING LOAN
COMMITMENTS" means such commitments of all Lenders in the aggregate.
"REVOLVING LOAN COMMITMENT TERMINATION DATE" means
April 15, 2002.
"REVOLVING LOAN EXPOSURE" means, with respect to any Lender as of any
date of determination (i) prior to the termination of the Revolving Loan
Commitments, that Lender's Revolving Loan Commitment and (ii) after the
termination of the Revolving Loan Commitments, the sum of (a) the aggregate
outstanding principal amount of the Revolving Loans of that Lender plus (b) in
the event that Lender is an Issuing Lender, the aggregate Letter of Credit Usage
in respect of all Letters of Credit issued by that Lender (in each case net of
any participations purchased by other Lenders in such Letters of Credit or any
unreimbursed drawings thereunder) plus (c) the aggregate amount of all
participations purchased by that Lender in any outstanding Letters of Credit or
any unreimbursed drawings under any Letters of Credit plus (d) in the case of
Swing Line Lender, the aggregate outstanding principal amount of all Swing Line
Loans (net of any partici- pations therein purchased by other Lenders) plus (e)
the aggregate amount of all participations purchased by that Lender in any
outstanding Swing Line Loans.
"REVOLVING LOANS" means the Loans made by Lenders to Company pursuant
to subsection 2.1A(iii).
"REVOLVING NOTES" means (i) the promissory notes of Company issued
pursuant to subsection 2.1D(i)(c) on the Closing Date and (ii) any promissory
notes issued by Company pursuant to the last sentence of subsection 10.1B(i) in
connection with assignments of the Revolving Loan Commitments and Revolving
Loans of any Lenders, in each case substantially in the form of Exhibit VI
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.
"SALE AND LEASEBACK TRANSACTIONS" has the meaning assigned to that
term in the Recitals hereof.
"SECURITIES" means any stock, shares, partnership interests, voting
trust certificates, certificates of interest or participation in any
profit-sharing agreement or arrangement, options, warrants, bonds, debentures,
notes, or other evidences of indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments commonly known as
"securities" or any certificates of interest, shares or participations in
temporary or interim certificates for the purchase or acquisition of, or any
right to subscribe to, purchase or acquire, any of the foregoing.
"SECURITIES ACT" means the Securities Act of 1933, as amended from
time to time, and any successor statute.
"SOLVENCY CERTIFICATE" means an Officer's Certificate substantially in
the form of Exhibit XXIV annexed hereto.
"SOLVENT" means, with respect to any Person, that as of the date of
determination both (A) (i) the then fair saleable value of the property of such
Person is (y) greater than the total amount of liabilities (including contingent
liabilities) of such Person and (z) not less than the amount that will be
required to pay the probable liabilities on such Person's then existing debts as
they become absolute and matured considering all financing alternatives and
potential asset sales reasonably available to such Person; (ii) such Person's
capital is not unreasonably small in relation to its business or any
contemplated or undertaken transaction; and (iii) such Person does not intend to
incur, or believe (nor should it reasonably believe) that it will incur, debts
beyond its ability to pay such debts as they become due; and (B) such Person is
"solvent" within the meaning given that term and similar terms under applicable
laws relating to fraudulent transfers and conveyances. For purposes of this
definition, the amount of any contingent liability at any time shall be computed
as the amount that, in light of all of the facts and circumstances existing at
such time, represents the amount that can reasonably be expected to become an
actual or matured liability.
"STANDBY LETTER OF CREDIT" means any standby letter of credit or
similar instrument issued for the purpose of supporting (i) Indebtedness of
Company or any of its Subsidiaries in respect of industrial revenue or
development bonds or financings, (ii) workers' compensation liabilities of
Company or any of its Subsidiaries, (iii) the obligations of third party
insurers of Company or any of its Subsidiaries, (iv) obligations with respect to
Capital Leases or Operating Leases of Company or any of its Subsidiaries, and
(v) performance, payment, deposit or surety obligations of Company or any of its
Subsidiaries, in any case if required by law or governmental rule or regulation
or in accordance with custom and practice in the industry; provided that Standby
Letters of Credit may not be issued for the purpose of supporting (a) trade
payables or (b) any Indebtedness constituting "antecedent debt" (as that term is
used in Section 547 of the Bankruptcy Code).
"SUBORDINATED INDEBTEDNESS" means Indebtedness of Company subordinated
in right of payment to the Obligations pursuant to documentation containing
maturities, amortization schedules, covenants, defaults, remedies, subordination
provisions and other material terms in form and substance satisfactory to Agents
and Requisite Lenders.
"SUBSIDIARY" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"SUBSIDIARY GUARANTOR" means any Subsidiary of Company that executes
and delivers a counterpart of the Subsidiary Guaranty on the Closing Date or
from time to time thereafter pursuant to subsection 6.8.
"SUBSIDIARY GUARANTY" means the Subsidiary Guaranty executed and
delivered by existing Subsidiaries of Company on the Closing Date and to be
executed and delivered by additional Subsidiaries of Company from time to time
thereafter in accordance with subsection 6.8, substantially in the form of
Exhibit XVIII annexed hereto, as such Subsidiary Guaranty may hereafter be
amended, supplemented or otherwise modified from time to time.
"SUBSIDIARY PLEDGE AGREEMENT" means each Subsidiary Pledge Agreement
executed and delivered by an existing Subsidiary Guarantor on the Closing Date
or executed and delivered by any additional Subsidiary Guarantor from time to
time thereafter in accordance with subsection 6.8, in each case substantially in
the form of Exhibit XIX annexed hereto, as such Subsidiary Pledge Agreement may
be amended, supplemented or otherwise modified from time to time, and
"SUBSIDIARY PLEDGE AGREEMENTS" means all such Subsidiary Pledge Agreements,
collectively.
"SUBSIDIARY SECURITY AGREEMENT" means each Subsidiary Security
Agreement executed and delivered by an existing Subsidiary Guarantor on the
Closing Date or executed and delivered by any additional Subsidiary Guarantor
from time to time thereafter in accordance with subsection 6.8, in each case
substantially in the form of Exhibit XX annexed hereto, as such Subsidiary
Security Agreement may be amended, supplemented or otherwise modified from time
to time, and "SUBSIDIARY SECURITY AGREEMENTS" means all such Subsidiary Security
Agreements, collectively.
"SUBSIDIARY TRADEMARK SECURITY AGREEMENT" means each trademark
security agreement, copyright security agreement or other security agreement
executed and delivered by a Subsidiary Guarantor in accordance with subsection
6.8.
"SUPPLEMENTAL COLLATERAL AGENT" has the meaning
assigned to that term in subsection 9.1D.
"SWING LINE LENDER" means BIS, or any Person serving as a successor
Administrative Agent hereunder, in its capacity as Swing Line Lender hereunder.
"SWING LINE LOAN COMMITMENT" means the commitment of Swing Line Lender
to make Swing Line Loans to Company pursuant to subsection 2.1A(iv).
"SWING LINE LOANS" means the Loans made by Swing Line Lender to
Company pursuant to subsection 2.1A(iv).
"SWING LINE NOTE" means (i) the promissory note of Company issued
pursuant to subsection 2.1D(ii) on the Closing Date and (ii) any promissory note
issued by Company to any successor Administrative Agent and Swing Line Lender
pursuant to the last sentence of subsection 9.5B, in each case substantially in
the form of Exhibit VII annexed hereto, as it may be amended, supplemented or
otherwise modified from time to time.
"SYNDICATION AGENT" has the meaning assigned to that
term in the introduction to this Agreement.
"TAX" or "TAXES" means any present or future tax, levy, impost, duty,
charge, fee, deduction or withholding of any nature and whatever called, by
whomsoever, on whomsoever and wherever imposed, levied, collected, withheld or
assessed; provided that "TAX ON THE OVERALL NET INCOME" of a Person shall be
construed as a reference to a tax imposed by the jurisdiction in which that
Person is organized or in which that Person's principal office (and/or, in the
case of a Lender, its lending office) is located or in which that Person
(and/or, in the case of a Lender, its lending office) is deemed to be doing
business on all or part of the net income, profits or gains (whether worldwide,
or only insofar as such income, profits or gains are considered to arise in or
to relate to a particular jurisdiction, or otherwise) of that Person (and/or, in
the case of a Lender, its lending office).
"TERM LOANS" means, collectively, the Tranche A Term Loans and the
Tranche B Term Loans.
"TITLE COMPANY" means one or more title insurance companies selected
by Company and reasonably satisfactory to Agents.
"TOTAL UTILIZATION OF REVOLVING LOAN COMMITMENTS" means, as at any
date of determination, the sum of (i) the aggregate principal amount of all
outstanding Revolving Loans (other than Revolving Loans made for the purpose of
repaying any Refunded Swing Line Loans or reimbursing the applicable Issuing
Lender for any amount drawn under any Letter of Credit but not yet so applied)
plus (ii) the aggregate principal amount of all outstanding Swing Line Loans
plus (iii) the Letter of Credit Usage.
"TRANCHE A TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Tranche A Term Loan to Company pursuant to subsection 2.1A(i), and
"TRANCHE A TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE A TERM LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination (i) prior to the funding of the Tranche A Term Loans,
that Lender's Tranche A Term Loan Commitment and (ii) after the funding of the
Tranche A Term Loans, the outstanding principal amount of the Tranche A Term
Loan of that Lender.
"TRANCHE A TERM LOANS" means the Tranche A Term Loans made by Lenders
to Company pursuant to subsection 2.1A(i).
"TRANCHE A TERM NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D(i)(a) on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the Term Loan Commitments or Term
Loans of any Lenders, in each case substantially in the form of Exhibit IV
annexed hereto, as they may be amended, supplemented or otherwise modified from
time to time.
"TRANCHE B TERM LOAN COMMITMENT" means the commitment of a Lender to
make a Tranche B Term Loan to Company pursuant to subsection 2.1A(i), and
"TRANCHE B TERM LOAN COMMITMENTS" means such commitments of all Lenders in the
aggregate.
"TRANCHE B TERM LOAN EXPOSURE" means, with respect to any Lender as of
any date of determination (i) prior to the funding of the Tranche B Term Loans,
that Lender's Tranche B Term Loan Commitment and (ii) after the funding of the
Tranche B Term Loans, the outstanding principal amount of the Tranche B Term
Loan of that Lender.
"TRANCHE B TERM LOANS" means the Tranche B Term Loans made by Lenders
to Company pursuant to subsection 2.1A(ii).
"TRANCHE B TERM NOTES" means (i) the promissory notes of Company
issued pursuant to subsection 2.1D(i)(b) on the Closing Date and (ii) any
promissory notes issued by Company pursuant to the last sentence of subsection
10.1B(i) in connection with assignments of the Tranche B Term Loan Commitments
or Tranche B Term Loans of any Lenders, in each case substantially in the form
of Exhibit IV annexed hereto, as they may be amended, supplemented or otherwise
modified from time to time.
"UCC" means the Uniform Commercial Code (or any similar or equivalent
legislation) as in effect in any applicable jurisdiction.
1.2 ACCOUNTING TERMS; UTILIZATION OF GAAP FOR PURPOSES OF
CALCULATIONS UNDER AGREEMENT.
Except as otherwise expressly provided in this Agreement, all
accounting terms not otherwise defined herein shall have the meanings assigned
to them in conformity with GAAP. Financial statements and other information
required to be delivered by Company to Lenders pursuant to clauses (i), (ii),
(iii) and (xiii) of subsection 6.1 shall be prepared in accordance with GAAP as
in effect at the time of such preparation (and delivered together with the
reconciliation statements provided for in subsection 6.1(v)). Calculations in
connection with the definitions, covenants and other provisions of this
Agreement shall utilize accounting principles and policies in conformity with
those used to prepare the financial statements referred to in subsection 5.3.
1.3 OTHER DEFINITIONAL PROVISIONS AND RULES OF CONSTRUCTION.
A. Any of the terms defined herein may, unless the
context otherwise requires, be used in the singular or the
plural, depending on the reference.
B. References to "Sections" and "subsections" shall
be to Sections and subsections, respectively, of this
Agreement unless otherwise specifically provided.
C. The use in any of the Loan Documents of the word "include" or
"including", when following any general statement, term or matter, shall not be
construed to limit such statement, term or matter to the specific items or
matters set forth immediately following such word or to similar items or
matters, whether or not nonlimiting language (such as "without limitation" or
"but not limited to" or words of similar import) is used with reference thereto,
but rather shall be deemed to refer to all other items or matters that fall
within the broadest possible scope of such general statement, term or matter.
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS
2.1 COMMITMENTS; MAKING OF LOANS; NOTES.
A. COMMITMENTS. Subject to the terms and conditions of
this Agreement and in reliance upon the representations and
warranties of Company herein set forth, each Lender hereby
severally agrees to make the Loans described in subsections
2.1A(i), 2.1A(ii) and 2.1A(iii) and Swing Line Lender hereby
agrees to make the Loans described in subsection 2.1A(iv).
(i) Tranche A Term Loans. Each Lender severally agrees to lend to
Company on the Closing Date, through the purchase of loans from DLJ under
the Existing Credit Agreement pursuant to the Master Assignment Agreement,
an amount not exceeding its Pro Rata Share of the aggregate amount of the
Tranche A Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Lender's Tranche A Term Loan Commitment
is set forth opposite its name on Schedule 2.1 annexed hereto and the
aggregate amount of the Tranche A Term Loan Commitments is $20,000,000;
provided that the Tranche A Term Loan Commitments of Lenders shall be
adjusted to give effect to any assignments of the Tranche A Term Loan
Commitments pursuant to subsection 10.1B. Each Lender's Term Loan
Commitment shall expire immediately and without further action on April 15,
1997 if the Tranche A Term Loans are not made on or before that date.
Company may make only one borrowing under the Tranche A Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(i) and
subsequently repaid or prepaid may not be reborrowed.
(ii) Tranche B Term Loans. Each Lender severally agrees to lend to
Company on the Closing Date, through the purchase of loans from DLJ under
the Existing Credit Agreement pursuant to the Master Assignment Agreement,
an amount not exceeding its Pro Rata Share of the aggregate amount of the
Tranche B Term Loan Commitments to be used for the purposes identified in
subsection 2.5A. The amount of each Lender's Tranche B Term Loan Commitment
is set forth opposite its name on Schedule 2.1 annexed hereto and the
aggregate amount of the Tranche B Term Loan Commitments is $55,000,000;
provided that the Tranche B Term Loan Commitments of Lenders shall be
adjusted to give effect to any assignments of the Tranche B Term Loan
Commitments pursuant to subsection 10.1B. Each Lender's Tranche B Term Loan
Commitment shall expire immediately and without further action on April 15,
1997 if the Tranche B Term Loans are not made on or before that date.
Company may make only one borrowing under the Tranche B Term Loan
Commitments. Amounts borrowed under this subsection 2.1A(ii) and
subsequently repaid or prepaid may not be reborrowed.
(iii) Revolving Loans. Each Lender severally agrees, subject to the
limitations set forth below with respect to the maximum amount of Revolving
Loans permitted to be outstanding from time to time, to lend to Company
from time to time during the period from the Closing Date to but excluding
the Revolving Loan Commitment Termination Date an aggregate amount not
exceeding its Pro Rata Share of the aggregate amount of the Revolving Loan
Commitments to be used for the purposes identified in subsection 2.5B. The
original amount of each Lender's Revolving Loan Commitment is set forth
opposite its name on Schedule 2.1 annexed hereto and the aggregate original
amount of the Revolving Loan Commitments is $15,000,000; provided that the
Revolving Loan Commitments of Lenders shall be adjusted to give effect to
any assignments of the Revolving Loan Commitments pursuant to subsection
10.1B; and provided, further that the amount of the Revolving Loan
Commitments shall be reduced from time to time by the amount of any
reductions thereto made pursuant to subsections 2.4B(ii) and 2.4B(iii).
Each Lender's Revolving Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Revolving Loans and all other amounts
owed hereunder with respect to the Revolving Loans and the Revolving Loan
Commitments shall be paid in full no later than that date; provided that
each Lender's Revolving Loan Commitment shall expire immediately and
without further action on April 15, 1997 if the Tranche A Term Loans, the
Tranche B Term Loans and the initial Revolving Loans are not made on or
before that date. Amounts borrowed under this subsection 2.1A(iii) may be
repaid and reborrowed to but excluding the Revolving Loan Commitment
Termination Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Revolving Loans and the Revolving Loan Commitments shall be subject to
the following limitations in the amounts and during the periods indicated:
(a) in no event shall the Total Utilization of Revolving Loan
Commitments at any time exceed the Revolving Loan Commitments then in
effect;
(b) in no event shall the sum of the aggregate outstanding
principal amount of all Revolving Loans plus the aggregate outstanding
principal amount of all Swing Line Loans exceed $10,000,000 (whether
or not any Letters of Credit are outstanding; and
(c) for 30 consecutive days during each consecutive twelve-month
period, the sum of the aggregate outstanding principal amount of all
Revolving Loans plus the aggregate outstanding principal amount of all
Swing Line Loans shall not exceed $5,000,000.
(iv) Swing Line Loans. Swing Line Lender hereby agrees, subject to the
limitations set forth below with respect to the maximum amount of Swing
Line Loans permitted to be outstanding from time to time, to make a portion
of the Revolving Loan Commitments available to Company from time to time
during the period from the Closing Date to but excluding the Revolving Loan
Commitment Termination Date by making Swing Line Loans to Company in an
aggregate amount not exceeding the amount of the Swing Line Loan Commitment
to be used for the purposes identified in subsection 2.5B, notwithstanding
the fact that such Swing Line Loans, when aggregated with Swing Line
Lender's outstanding Revolving Loans and Swing Line Lender's Pro Rata Share
of the Letter of Credit Usage then in effect, may exceed Swing Line
Lender's Revolving Loan Commitment. The original amount of the Swing Line
Loan Commitment is $5,000,000; provided that any reduction of the Revolving
Loan Commitments made pursuant to subsection 2.4B(ii) or 2.4B(iii) which
reduces the aggregate Revolving Loan Commitments to an amount less than the
then current amount of the Swing Line Loan Commitment shall result in an
automatic corresponding reduction of the Swing Line Loan Commitment to the
amount of the Revolving Loan Commitments, as so reduced, without any
further action on the part of Company, Administrative Agent or Swing Line
Lender. The Swing Line Loan Commitment shall expire on the Revolving Loan
Commitment Termination Date and all Swing Line Loans and all other amounts
owed hereunder with respect to the Swing Line Loans shall be paid in full
no later than that date; provided that the Swing Line Loan Commitment shall
expire immediately and without further action on April 15, 1997 if the
Tranche A Term Loans, the Tranche B Term Loans and the initial Revolving
Loans are not made on or before that date. Amounts borrowed under this
subsection 2.1A(iv) may be repaid and reborrowed to but excluding the
Revolving Loan Commitment Termination Date.
Anything contained in this Agreement to the contrary notwithstanding,
the Swing Line Loans and the Swing Line Loan Commitment shall be subject to
the limitation that in no event shall the Total Utilization of Revolving
Loan Commitments at any time exceed the Revolving Loan Commitments then in
effect.
With respect to any Swing Line Loans which have not been voluntarily
prepaid by Company pursuant to subsection 2.4B(i), Swing Line Lender may,
at any time in its sole and absolute discretion, deliver to Administrative
Agent (with a copy to Company), no later than 10:00 A.M. (New York City
time) on the first Business Day in advance of the proposed Funding Date, a
notice (which shall be deemed to be a Notice of Borrowing given by Company)
requesting Lenders to make Revolving Loans that are Base Rate Loans on such
Funding Date in an amount equal to the amount of such Swing Line Loans (the
"REFUNDED SWING LINE LOANS") outstanding on the date such notice is given
which Swing Line Lender requests Lenders to prepay. Anything contained in
this Agreement to the contrary notwithstanding, (i) the proceeds of such
Revolving Loans made by Lenders other than Swing Line Lender shall be
immediately delivered by Administrative Agent to Swing Line Lender (and not
to Company) and applied to repay a corresponding portion of the Refunded
Swing Line Loans and (ii) on the day such Revolving Loans are made, Swing
Line Lender's Pro Rata Share of the Refunded Swing Line Loans shall be
deemed to be paid with the proceeds of a Revolving Loan made by Swing Line
Lender, and such portion of the Swing Line Loans deemed to be so paid shall
no longer be outstanding as Swing Line Loans and shall no longer be due
under the Swing Line Note of Swing Line Lender but shall instead constitute
part of Swing Line Lender's outstanding Revolving Loans and shall be due
under the Revolving Note of Swing Line Lender. Company hereby authorizes
Administrative Agent and Swing Line Lender to charge Company's accounts
with Administrative Agent and Swing Line Lender (up to the amount available
in each such account) in order to immediately pay Swing Line Lender the
amount of the Refunded Swing Line Loans to the extent the proceeds of such
Revolving Loans made by Lenders, including the Revolving Loan deemed to be
made by Swing Line Lender, are not sufficient to repay in full the Refunded
Swing Line Loans. If any portion of any such amount paid (or deemed to be
paid) to Swing Line Lender should be recovered by or on behalf of Company
from Swing Line Lender in bankruptcy, by assignment for the benefit of
creditors or otherwise, the loss of the amount so recovered shall be
ratably shared among all Lenders in the manner contemplated by subsection
10.5.
If for any reason (a) Revolving Loans are not made upon the request of
Swing Line Lender as provided in the immediately preceding paragraph in an
amount sufficient to repay any amounts owed to Swing Line Lender in respect
of any outstanding Swing Line Loans or (b) the Revolving Loan Commitments
are terminated at a time when any Swing Line Loans are outstanding, each
Lender shall be deemed to, and hereby agrees to, have purchased a
participation in such outstanding Swing Line Loans in an amount equal to
its Pro Rata Share (calculated, in the case of the foregoing clause (b),
immediately prior to such termination of the Revolving Loan Commitments) of
the unpaid amount of such Swing Line Loans together with accrued interest
thereon. Upon one Business Day's notice from Swing Line Lender, each Lender
shall deliver to Swing Line Lender an amount equal to its respective
participation in same day funds at the Funding and Payment Office. In order
to further evidence such participation (and without prejudice to the
effectiveness of the participation provisions set forth above), each Lender
agrees to enter into a separate participation agreement at the request of
Swing Line Lender in form and substance reasonably satisfactory to Swing
Line Lender. In the event any Lender fails to make available to Swing Line
Lender the amount of such Lender's participation as provided in this
paragraph, Swing Line Lender shall be entitled to recover such amount on
demand from such Lender together with interest thereon at the rate
customarily used by Swing Line Lender for the correction of errors among
banks for three Business Days and thereafter at the Base Rate. In the event
Swing Line Lender receives a payment of any amount in which other Lenders
have purchased participations as provided in this paragraph, Swing Line
Lender shall promptly distribute to each such other Lender its Pro Rata
Share of such payment.
Anything contained herein to the contrary notwithstanding, each
Lender's obligation to make Revolving Loans for the purpose of repaying any
Refunded Swing Line Loans pursuant to the second preceding paragraph and
each Lender's obligation to purchase a participation in any unpaid Swing
Line Loans pursuant to the immediately preceding paragraph shall be
absolute and unconditional and shall not be affected by any circumstance,
including (a) any set-off, counterclaim, recoupment, defense or other right
which such Lender may have against Swing Line Lender, Company or any other
Person for any reason whatsoever; (b) the occurrence or continuation of an
Event of Default or a Potential Event of Default; (c) any adverse change in
the business, operations, properties, assets, condition (financial or
otherwise) or prospects of Company or any of its Subsidiaries; (d) any
breach of this Agreement or any other Loan Document by any party thereto;
or (e) any other circumstance, happening or event whatsoever, whether or
not similar to any of the foregoing; provided that such obligations of each
Lender are subject to the condition that (X) Swing Line Lender believed in
good faith that all conditions under Section 4 to the making of the
applicable Refunded Swing Line Loans or other unpaid Swing Line Loans, as
the case may be, were satisfied at the time such Refunded Swing Line Loans
or unpaid Swing Line Loans were made or (Y) the satisfaction of any such
condition not satisfied had been waived in accordance with subsection 10.6
prior to or at the time such Refunded Swing Line Loans or other unpaid
Swing Line Loans were made.
B. BORROWING MECHANICS. Tranche A Term Loans, Tranche B Term Loans or
Revolving Loans made on any Funding Date (other than Revolving Loans made
pursuant to a request by Swing Line Lender pursuant to subsection 2.1A(iv) for
the purpose of repaying any Refunded Swing Line Loans or Revolving Loans made
pursuant to subsection 3.3B for the purpose of reimbursing any Issuing Lender
for the amount of a drawing under a Letter of Credit issued by it) shall be in
an aggregate minimum amount of $1,000,000 and integral multiples of $500,000 in
excess of that amount; provided that Tranche A Term Loans, Tranche B Term Loans
or Revolving Loans made on any Funding Date as Eurodollar Rate Loans with a
particular Interest Period shall be in an aggregate minimum amount of $1,000,000
and integral multiples of $100,000 in excess of that amount. Swing Line Loans
made on any Funding Date shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. Whenever Company
desires that Lenders make Term Loans or Revolving Loans it shall deliver to
Administrative Agent a Notice of Borrowing no later than 10:00 A.M. (New York
City time) at least three Business Days in advance of the proposed Funding Date
(in the case of a Eurodollar Rate Loan) or at least one Business Day in advance
of the proposed Funding Date (in the case of a Base Rate Loan). Whenever Company
desires that Swing Line Lender make a Swing Line Loan, it shall deliver to
Administrative Agent a Notice of Borrowing no later than 12:00 Noon (New York
City time) on the proposed Funding Date. The Notice of Borrowing shall specify
(i) the proposed Funding Date (which shall be a Business Day), (ii) the amount
and type of Loans requested, (iii) in the case of Swing Line Loans and any Loans
made on the Closing Date, that such Loans shall be Base Rate Loans, (iv) in the
case of Revolving Loans not made on the Closing Date, whether such Loans shall
be Base Rate Loans or Eurodollar Rate Loans, and (v) in the case of any Loans
requested to be made as Eurodollar Rate Loans, the initial Interest Period
requested therefor. Term Loans and Revolving Loans may be continued as or
converted into Base Rate Loans and Eurodollar Rate Loans in the manner provided
in subsection 2.2D. In lieu of delivering the above-described Notice of
Borrowing, Company may give Administrative Agent telephonic notice by the
required time of any proposed borrowing under this subsection 2.1B; provided
that such notice shall be promptly confirmed in writing by delivery of a Notice
of Borrowing to Administrative Agent on or before the applicable Funding Date.
Neither Administrative Agent nor any Lender shall incur any liability
to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to borrow on behalf of Company or
for otherwise acting in good faith under this subsection 2.1B, and upon funding
of Loans by Lenders in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected Loans hereunder.
Company shall notify Administrative Agent prior to the funding of any
Loans in the event that any of the matters to which Company is required to
certify in the applicable Notice of Borrowing is no longer true and correct as
of the applicable Funding Date, and the acceptance by Company of the proceeds of
any Loans shall constitute a re-certification by Company, as of the applicable
Funding Date, as to the matters to which Company is required to certify in the
applicable Notice of Borrowing.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Borrowing for a Eurodollar Rate Loan (or telephonic notice in lieu
thereof) shall be irrevocable on and after the related Interest Rate
Determination Date, and Company shall be bound to make a borrowing in accordance
therewith.
C. DISBURSEMENT OF FUNDS. All Term Loans and Revolving Loans under this
Agreement shall be made by Lenders simultaneously and proportionately to their
respective Pro Rata Shares, it being understood that no Lender shall be
responsible for any default by any other Lender in that other Lender's
obligation to make a Loan requested hereunder nor shall the Commitment of any
Lender to make the particular type of Loan requested be increased or decreased
as a result of a default by any other Lender in that other Lender's obligation
to make a Loan requested hereunder. Promptly after receipt by Administrative
Agent of a Notice of Borrowing pursuant to subsection 2.1B (or telephonic notice
in lieu thereof), Administrative Agent shall notify each Lender or Swing Line
Lender, as the case may be, of the proposed borrowing. Each Lender shall make
the amount of its Loan available to Administrative Agent not later than 12:00
Noon (New York City time) on the applicable Funding Date, and Swing Line Lender
shall make the amount of its Swing Line Loan available to Administrative Agent
not later than 2:00 P.M.(New York City time) on the applicable Funding Date, in
each case in same day funds in Dollars, at the Funding and Payment Office.
Except as provided in subsection 2.1A(iv) or subsection 3.3B with respect to
Revolving Loans used to repay Refunded Swing Line Loans or to reimburse any
Issuing Lender for the amount of a drawing under a Letter of Credit issued by
it, upon satisfaction or waiver of the conditions precedent specified in
subsections 4.1 (in the case of Loans made on the Closing Date) and 4.2 (in the
case of all Loans), Administrative Agent shall make the proceeds of such Loans
available to Company on the applicable Funding Date by causing an amount of same
day funds in Dollars equal to the proceeds of all such Loans received by
Administrative Agent from Lenders or Swing Line Lender, as the case may be, to
be credited to the account of Company at the Funding and Payment Office.
Unless Administrative Agent shall have been notified by any Lender
prior to the Funding Date for any Loans that such Lender does not intend to make
available to Administrative Agent the amount of such Lender's Loan requested on
such Funding Date, Administrative Agent may assume that such Lender has made
such amount available to Administrative Agent on such Funding Date and
Administrative Agent may, in its sole discretion, but shall not be obligated to,
make available to Company a corresponding amount on such Funding Date. If such
corresponding amount is not in fact made available to Administrative Agent by
such Lender, Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender together with interest thereon,
for each day from such Funding Date until the date such amount is paid to
Administrative Agent, at the customary rate set by Administrative Agent for the
correction of errors among banks for three Business Days and thereafter at the
Base Rate. If such Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent shall promptly
notify Company and Company shall immediately pay such corresponding amount to
Administrative Agent together with interest thereon, for each day from such
Funding Date until the date such amount is paid to Administrative Agent, at the
rate payable under this Agreement for Base Rate Loans. Nothing in this
subsection 2.1C shall be deemed to relieve any Lender from its obligation to
fulfill its Commitments hereunder or to prejudice any rights that Company may
have against any Lender as a result of any default by such Lender hereunder.
D. NOTES. Company shall execute and deliver on the
Closing Date (i) to each Lender (or to Administrative Agent
for that Lender) (a) a Tranche A Term Note substantially in
the form of Exhibit IV annexed hereto to evidence that
Lender's Tranche A Term Loan, in the principal amount of that
Lender's Tranche A Term Loan and with other appropriate inser-
tions, (b) a Tranche B Term Note substantially in the form of
Exhibit V annexed hereto to evidence that Lender's Tranche B
Term Loan, in the principal amount of that Lender's Tranche B
Term Loan and with other appropriate insertions, and (c) a
Revolving Note substantially in the form of Exhibit VI annexed
hereto to evidence that Lender's Revolving Loans, in the
principal amount of that Lender's Revolving Loan Commitment
and with other appropriate insertions, and (ii) to Swing Line
Lender (or to Administrative Agent for Swing Line Lender) a
Swing Line Note substantially in the form of Exhibit VII
annexed hereto to evidence Swing Line Lender's Swing Line
Loans, in the principal amount of the Swing Line Loan
Commitment and with other appropriate insertions.
Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until an Assignment Agreement
effecting the assignment or transfer thereof shall have been accepted by
Administrative Agent as provided in subsection 10.1B(ii). Any request, authority
or consent of any person or entity who, at the time of making such request or
giving such authority or consent, is the holder of any Note shall be conclusive
and binding on any subsequent holder, assignee or transferee of that Note or of
any Note or Notes issued in exchange therefor.
2.2 INTEREST ON THE LOANS.
A. RATE OF INTEREST. Subject to the provisions of subsections 2.6 and 2.7,
each Term Loan and each Revolving Loan shall bear interest on the unpaid
principal amount thereof from the date made through maturity (whether by
acceleration or otherwise) at a rate determined by reference to the Base Rate or
the Adjusted Eurodollar Rate. Subject to the provisions of subsection 2.7, each
Swing Line Loan shall bear interest on the unpaid principal amount thereof from
the date made through maturity (whether by acceleration or otherwise) at a rate
determined by reference to the Base Rate. The applicable basis for determining
the rate of interest with respect to any Term Loan or any Revolving Loan shall
be selected by Company initially at the time a Notice of Borrowing is given with
respect to such Loan pursuant to subsection 2.1B, and the basis for determining
the interest rate with respect to any Term Loan or any Revolving Loan may be
changed from time to time pursuant to subsection 2.2D. If on any day a Term Loan
or Revolving Loan is outstanding with respect to which notice has not been
delivered to Administrative Agent in accordance with the terms of this Agreement
specifying the applicable basis for determining the rate of interest, then for
that day that Loan shall bear interest determined by reference to the Base Rate.
(i) Subject to the provisions of subsections 2.2E and 2.7, the Tranche
A Term Loans and the Revolving Loans shall bear interest through maturity as
follows:
(a) if a Base Rate Loan, then at the sum of the Base Rate plus 2.00%
per annum minus the Applicable Pricing Discount, if any; or
(b) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus 3.00% per annum minus the Applicable Pricing Discount,
if any.
(ii) Subject to the provisions of subsections 2.2E and 2.7, the
Tranche B Term Loans shall bear interest through maturity as follows:
(a) if a Base Rate Loan, then at the sum of the Base
Rate plus 2.50% per annum; or
(b) if a Eurodollar Rate Loan, then at the sum of the Adjusted
Eurodollar Rate plus 3.50% per annum.
(iii) Subject to the provisions of subsections 2.2E and 2.7, the Swing
Line Loans shall bear interest through maturity at the sum of the Base Rate plus
1.50% per annum minus the Applicable Pricing Discount, if any.
B. INTEREST PERIODS. In connection with each Eurodollar Rate Loan, Company
may, pursuant to the applicable Notice of Borrowing or Notice of
Conversion/Continuation, as the case may be, select an interest period (each an
"INTEREST PERIOD") to be applicable to such Loan, which Interest Period shall
be, at Company's option, either a one, two, three or six month period; provided
that:
(i) the initial Interest Period for any Eurodollar Rate Loan shall
commence on the Funding Date in respect of such Loan, in the case of a Loan
initially made as a Eurodollar Rate Loan, or on the date specified in the
applicable Notice of Conversion/Continuation, in the case of a Loan
converted to a Eurodollar Rate Loan;
(ii) in the case of immediately successive Interest Periods applicable
to a Eurodollar Rate Loan continued as such pursuant to a Notice of
Conversion/ Continuation, each successive Interest Period shall commence on
the day on which the next preceding Interest
Period expires;
(iii) if an Interest Period would otherwise expire on a day that is
not a Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided that, if any Interest Period would
otherwise expire on a day that is not a Business Day but is a day of the
month after which no further Business Day occurs in such month, such
Interest Period shall expire on the next preceding Business Day;
(iv) any Interest Period that begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding
day in the calendar month at the end of such Interest Period) shall,
subject to clause (v) of this subsection 2.2B, end on the last Business Day
of a calendar month;
(v) no Interest Period with respect to any portion of the Tranche A
Term Loans shall extend beyond April 15, 2002, no Interest Period with
respect to any portion of the Tranche B Term Loans shall extend beyond
April 15, 2004 and no Interest Period with respect to any portion of the
Revolving Loans shall extend beyond the Revolving Loan Commitment
Termination Date;
(vi) no Interest Period with respect to any portion of the Tranche A
Term Loans or the Tranche B Term Loans shall extend beyond a date on which
Company is required to make a scheduled payment of principal of the Tranche
A Term Loans or the Tranche B Term Loans, as the case may be, unless the
sum of (a) the aggregate principal amount of Tranche A Term Loans or
Tranche B Term Loans, as the case may be, that are Base Rate Loans plus (b)
the aggregate principal amount of Tranche A Term Loans or Tranche B Term
Loans, as the case may be, that are Eurodollar Rate Loans with Interest
Periods expiring on or before such date equals or exceeds the principal
amount required to be paid on the Tranche A Term Loans or Tranche B Term
Loans, as the case may be, on such date;
(vii) there shall be no more than eight Interest
Periods outstanding at any time; and
(viii) in the event Company fails to specify an Interest Period for
any Eurodollar Rate Loan in the applicable Notice of Borrowing or Notice of
Conversion/ Continuation, Company shall be deemed to have selected an
Interest Period of one month.
C. INTEREST PAYMENTS. Subject to the provisions of subsection 2.2E,
interest on each Loan shall be payable in arrears on and to each Interest
Payment Date applicable to that Loan, upon any prepayment of that Loan (to the
extent accrued on the amount being prepaid) and at maturity (including final
maturity); provided that in the event any Swing Line Loans or any Revolving
Loans that are Base Rate Loans are prepaid pursuant to subsection 2.4B(i),
interest accrued on such Swing Line Loans or Revolving Loans through the date of
such prepayment shall be payable on the next succeeding Interest Payment Date
applicable to Base Rate Loans (or, if earlier, at final maturity).
D. CONVERSION OR CONTINUATION. Subject to the provisions of subsection 2.6,
Company shall have the option (i) to convert at any time all or any part of its
outstanding Tranche A Term Loans, Tranche B Term Loans or Revolving Loans equal
to $1,000,000 and integral multiples of $100,000 in excess of that amount from
Loans bearing interest at a rate determined by reference to one basis to Loans
bearing interest at a rate determined by reference to an alternative basis or
(ii) upon the expiration of any Interest Period applicable to a Eurodollar Rate
Loan, to continue all or any portion of such Loan equal to $1,000,000 and
integral multiples of $100,000 in excess of that amount as a Eurodollar Rate
Loan; provided, however, that a Eurodollar Rate Loan may only be converted into
a Base Rate Loan on the expiration date of an Interest Period applicable
thereto.
Company shall deliver a Notice of Conversion/ Continuation to
Administrative Agent no later than 10:00 A.M. (New York City time) at least one
Business Day in advance of the proposed conversion date (in the case of a
conversion to a Base Rate Loan) and at least three Business Days in advance of
the proposed conversion/continuation date (in the case of a conversion to, or a
continuation of, a Eurodollar Rate Loan). A Notice of Conversion/Continuation
shall specify (i) the proposed conversion/continuation date (which shall be a
Business Day), (ii) the amount and type of the Loan to be converted/continued,
(iii) the nature of the proposed conversion/ continuation, (iv) in the case of a
conversion to, or a continuation of, a Eurodollar Rate Loan, the requested
Interest Period, and (v) in the case of a conversion to, or a continuation of, a
Eurodollar Rate Loan, that no Potential Event of Default or Event of Default has
occurred and is continuing. In lieu of delivering the above-described Notice of
Conversion/Continuation, Company may give Administrative Agent telephonic notice
by the required time of any proposed conversion/continuation under this
subsection 2.2D; provided that such notice shall be promptly confirmed in
writing by delivery of a Notice of Conversion/Continuation to Administrative
Agent on or before the proposed conversion/ continuation date. Upon receipt of
written or telephonic notice of any proposed conversion/continuation under this
subsection 2.2D, Administrative Agent shall promptly transmit such notice by
telefacsimile or telephone to each Lender.
Neither Administrative Agent nor any Lender shall incur any liability
to Company in acting upon any telephonic notice referred to above that
Administrative Agent believes in good faith to have been given by a duly
authorized officer or other person authorized to act on behalf of Company or for
otherwise acting in good faith under this subsection 2.2D, and upon conversion
or continuation of the applicable basis for determining the interest rate with
respect to any Loans in accordance with this Agreement pursuant to any such
telephonic notice Company shall have effected a conversion or continuation, as
the case may be, hereunder.
Except as otherwise provided in subsections 2.6B, 2.6C and 2.6G, a
Notice of Conversion/Continuation for conversion to, or continuation of, a
Eurodollar Rate Loan (or telephonic notice in lieu thereof) shall be irrevocable
on and after the related Interest Rate Determination Date, and Company shall be
bound to effect a conversion or continuation in accordance therewith.
E. DEFAULT RATE. Upon the occurrence and during the continuation of any
Event of Default, the outstanding principal amount of all Loans and, to the
extent permitted by applicable law, any interest payments thereon not paid when
due and any fees and other amounts then due and payable hereunder, shall
thereafter bear interest (including post-petition interest in any proceeding
under the Bankruptcy Code or other applicable bankruptcy laws) payable upon
demand at a rate that is 2% per annum in excess of the interest rate otherwise
payable under this Agreement with respect to the applicable Loans (or, in the
case of any such fees and other amounts, at a rate which is 2% per annum in
excess of the interest rate otherwise payable under this Agreement for Base Rate
Loans that are Tranche B Term Loans); provided that, in the case of Eurodollar
Rate Loans, upon the expiration of the Interest Period in effect at the time any
such increase in interest rate is effective such Eurodollar Rate Loans shall
thereupon become Base Rate Loans and shall thereafter bear interest payable upon
demand at a rate which is 2% per annum in excess of the interest rate otherwise
payable under this Agreement for Base Rate Loans. Payment or acceptance of the
increased rates of interest provided for in this subsection 2.2E is not a
permitted alternative to timely payment and shall not constitute a waiver of any
Event of Default or otherwise prejudice or limit any rights or remedies of any
Agent or any Lender.
F. COMPUTATION OF INTEREST. Interest on the Loans shall be computed (i) in
the case of Base Rate Loans, on the basis of a 365-day or 366-day year, as the
case may be, and (ii) in the case of Eurodollar Rate Loans, on the basis of a
360-day year, in each case for the actual number of days elapsed in the period
during which it accrues. In computing interest on any Loan, the date of the
making of such Loan or the first day of an Interest Period applicable to such
Loan or, with respect to a Base Rate Loan being converted from a Eurodollar Rate
Loan, the date of conversion of such Eurodollar Rate Loan to such Base Rate
Loan, as the case may be, shall be included, and the date of payment of such
Loan or the expiration date of an Interest Period applicable to such Loan or,
with respect to a Base Rate Loan being converted to a Eurodollar Rate Loan, the
date of conversion of such Base Rate Loan to such Eurodollar Rate Loan, as the
case may be, shall be excluded; provided that if a Loan is repaid on the same
day on which it is made, one day's interest shall be paid on that Loan.
2.3 FEES.
A. COMMITMENT FEES. Company agrees to pay to Administrative Agent, for
distribution to each Lender in proportion to that Lender's Pro Rata Share,
commitment fees for the period from and including the Closing Date to and
excluding the Revolving Loan Commitment Termination Date equal to the average of
the daily excess of the Revolving Loan Commitments over the aggregate principal
amount of outstanding Revolving Loans (but not including any outstanding Swing
Line Loans or the Letter of Credit Usage) multiplied by 0.50% per annum, such
commitment fees to be calculated on the basis of a 360-day year and the actual
number of days elapsed and to be payable quarterly in arrears on the last day of
each March, June, September and December of each year, commencing on the first
such date to occur after the Closing Date, and on the Revolving Loan Commitment
Termination Date.
B. OTHER FEES. Company agrees to pay to Arranger and
Administrative Agent such other fees in the amounts and at the
times separately agreed upon between Company and
Administrative Agent and Arranger.
2.4 REPAYMENTS, PREPAYMENTS AND REDUCTIONS IN REVOLVING LOAN
COMMITMENTS; GENERAL PROVISIONS REGARDING PAYMENTS.
A. SCHEDULED PAYMENTS OF TRANCHE A TERM LOANS AND
TRANCHE B TERM LOANS.
(i) Scheduled Payments of Tranche A Term Loans.
Company shall make principal payments on the Tranche A
Term Loans in installments on the dates and in the
amounts set forth below:
Scheduled Repayment
Date of Term Loans
July 15, 1997 $1,000,000
October 15, 1997 $1,000,000
January 15, 1998 $1,000,000
April 15, 1998 $1,000,000
July 15, 1998 $1,000,000
October 15, 1998 $1,000,000
January 15, 1999 $1,000,000
April 15, 1999 $1,000,000
July 15, 1999 $1,000,000
October 15, 1999 $1,000,000
January 15, 2000 $1,000,000
April 15, 2000 $1,000,000
July 15, 2000 $1,000,000
October 15, 2000 $1,000,000
January 15, 2001 $1,000,000
April 15, 2001 $1,000,000
July 15, 2001 $1,000,000
October 15, 2001 $1,000,000
January 15, 2002 $1,000,000
April 15, 2002 $1,000,000
Total $20,000,000
; provided that the scheduled installments of principal of the Tranche A
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche A Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the Tranche
A Term Loans and all other amounts owed hereunder with respect to the
Tranche A Term Loans shall be paid in full no later than April 15, 2002,
and the final installment payable by Company in respect of the Tranche A
Term Loans on such date shall be in an amount, if such amount is different
from that specified above, sufficient to repay all amounts owing by Company
under this Agreement with respect to the Tranche A Term Loans.
(ii) Scheduled Payments of Tranche B Term Loans.
Company shall make principal payments on the Tranche B
Term Loans in installments on the dates and in the
amounts set forth below:
Scheduled Repayment
Date of Tranche B Term Loans
July 15, 1997 $137,500
October 15, 1997 $137,500
January 15, 1998 $137,500
April 15, 1998 $137,500
July 15, 1998 $137,500
October 15, 1998 $137,500
January 15, 1999 $137,500
April 15, 1999 $137,500
July 15, 1999 $137,500
October 15, 1999 $137,500
January 15, 2000 $137,500
April 15, 2000 $137,500
July 15, 2000 $137,500
October 15, 2000 $137,500
January 15, 2001 $137,500
April 15, 2001 $137,500
July 15, 2001 $137,500
October 15, 2001 $137,500
January 15, 2002 $137,500
April 15, 2002 $137,500
July 15, 2002 $6,531,250
October 15, 2002 $6,531,250
January 15, 2003 $6,531,250
April 15, 2003 $6,531,250
July 15, 2003 $6,531,250
October 15, 2003 $6,531,250
January 15, 2004 $6,531,250
April 15, 2004 $6,531,250
Total $55,000,000
; provided that the scheduled installments of principal of the Tranche B
Term Loans set forth above shall be reduced in connection with any
voluntary or mandatory prepayments of the Tranche B Term Loans in
accordance with subsection 2.4B(iv); and provided, further that the Tranche
B Term Loans and all other amounts owed hereunder with respect to the
Tranche B Term Loans shall be paid in full no later than April 15, 2004,
and the final installment payable by Company in respect of the Tranche B
Term Loans on such date shall be in an amount, if such amount is different
from that specified above, sufficient to repay all amounts owing by Company
under this Agreement with respect to the Tranche B Term Loans.
B. PREPAYMENTS AND UNSCHEDULED REDUCTIONS IN REVOLVING
LOAN COMMITMENTS.
(i) Voluntary Prepayments. Company may, upon written or telephonic
notice to Administrative Agent on or prior to 12:00 Noon (New York City
time) on the date of prepayment, which notice, if telephonic, shall be
promptly confirmed in writing, at any time and from time to time prepay any
Swing Line Loan on any Business Day in whole or in part in an aggregate
minimum amount of $500,000 and integral multiples of $100,000 in excess of
that amount. Company may, upon not less than one Business Day's prior
written or telephonic notice, in the case of Base Rate Loans, and three
Business Days' prior written or telephonic notice, in the case of
Eurodollar Rate Loans, in each case given to Administrative Agent by 12:00
Noon (New York City time) on the date required and, if given by telephone,
promptly confirmed in writing to Administrative Agent (which original
written or telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to
time prepay any Term Loans or Revolving Loans on any Business Day in whole
or in part in an aggregate minimum amount of $500,000 and integral
multiples of $100,000 in excess of that amount; provided, however, that a
Eurodollar Rate Loan may only be prepaid on the expiration of the Interest
Period applicable thereto unless Company complies with subsection 2.6D with
respect to any breakage costs resulting from such prepayment being made on
a date prior to the expiration of the applicable Interest Period. Notice of
prepayment having been given as aforesaid, the principal amount of the
Loans specified in such notice shall become due and payable on the
prepayment date specified therein. Any such voluntary prepayment shall be
applied as specified in subsection 2.4B(iv).
(ii) Voluntary Reductions of Revolving Loan Commitments. Company may,
upon not less than three Business Days' prior written or telephonic notice
confirmed in writing to Administrative Agent (which original written or
telephonic notice Administrative Agent will promptly transmit by
telefacsimile or telephone to each Lender), at any time and from time to
time terminate in whole or permanently reduce in part, without premium or
penalty, the Revolving Loan Commitments in an amount up to the amount by
which the Revolving Loan Commitments exceed the Total Utilization of
Revolving Loan Commitments at the time of such proposed termination or
reduction; provided that any such partial reduction of the Revolving Loan
Commitments shall be in an aggregate minimum amount of $500,000 and
integral multiples of $100,000 in excess of that amount. Company's notice
to Administrative Agent shall designate the date (which shall be a Business
Day) of such termination or reduction and the amount of any partial
reduction, and such termination or reduction of the Revolving Loan
Commitments shall be effective on the date specified in Company's notice
and shall reduce the Revolving Loan Commitment of each Lender
proportionately to its Pro Rata Share.
(iii) Mandatory Prepayments and Mandatory Reductions of Revolving Loan
Commitments. The Loans shall be prepaid and/or the Revolving Loan
Commitments shall be permanently reduced in the amounts and under the
circumstances set forth below, all such prepayments and/or reductions to be
applied as set forth below or as more specifically provided in subsection
2.4B(iv):
(a) Prepayments and Reductions From Net Asset Sale Proceeds. No
later than the first Business Day following the date of receipt by
Company or any of its Subsidiaries of any Net Asset Sale Proceeds in
respect of any Asset Sale, Company shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount equal to such Net Asset Sale Proceeds.
(b) Prepayments and Reductions from Net Insurance/Condemnation
Proceeds. No later than the first Business Day following the date of
receipt by Administrative Agent or by Company or any of its
Subsidiaries of any Net Insurance/Condemnation Proceeds, Company shall
prepay the Loans and/or the Revolving Loan Commitments shall be
permanently reduced in an aggregate amount equal to the amount of such
Net Insurance/Condemnation Proceeds; provided, however, that no such
prepayment shall be required to the extent (i) under the terms of any
lease or other agreement existing on the date hereof to the extent
such Net Insurance/Condemnation Proceeds are required to be used to
replace, rebuild or repair the asset so damaged, destroyed or taken or
(ii) Company determines to utilize such Net Insurance/Condemnation
Proceeds to replace, rebuild or repair the asset damaged, destroyed or
taken, and in each case so utilizes such Net Insurance/Condemnation
Proceeds within 18 months of the receipt thereof.
(c) Prepayments and Reductions Due to Reversion of Surplus Assets
of Pension Plans. On the date of return to Company or any of its
Subsidiaries of any surplus assets of any pension plan of Company or
any of its Subsidiaries, Company shall prepay the Loans and/or the
Revolving Loan Commitments shall be permanently reduced in an
aggregate amount (such amount being the "NET PENSION PROCEEDS") equal
to 100% of such returned surplus assets, net of transaction costs and
expenses incurred in obtaining such return, including incremental
taxes payable as a result thereof.
(d) Prepayments and Reductions Due to Issuance of Debt or Equity
Securities. On the date of receipt by Company of the Cash proceeds
(any such proceeds, net of underwriting discounts and commissions and
other reasonable costs and expenses associated therewith, including
reasonable legal fees and expenses, being "NET SECURITIES PROCEEDS")
from the issuance of debt or equity Securities of Company after the
Closing Date, Company shall prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount equal
to such Net Securities Proceeds.
(e) Prepayments and Reductions from Consolidated Excess Cash
Flow. In the event that there shall be Consolidated Excess Cash Flow
for any Fiscal Year (commencing with the Fiscal Year beginning
December 31, 1996), Company shall, no later than 90 days after the end
of such Fiscal Year, prepay the Loans and/or the Revolving Loan
Commitments shall be permanently reduced in an aggregate amount equal
to 75% of such Consolidated Excess Cash Flow.
(f) Prepayments and Reductions from Amounts in Escrow Account. In
the event that there are any amounts on deposit in the Escrow Account
on November 16, 1997, at the time any of the conditions set forth in
subsection 6.11(2) shall not have been satisfied, Company shall prepay
the Loans in an amount equal to the amount on deposit in the Escrow
Account.
(g) Calculations of Net Proceeds Amounts; Additional Prepayments
and Reductions Based on Subsequent Calculations. Concurrently with any
prepayment of the Loans and/or reduction of the Revolving Loan
Commitments pursuant to subsections 2.4B(iii)(a)-(f), Company shall
deliver to Agents an Officer's Certificate demonstrating the
calculation of the amount (the "NET PROCEEDS AMOUNT") of the
applicable Net Asset Sale Proceeds or Net Insurance/Condemnation
Proceeds, the applicable Net Pension Proceeds or Net Securities
Proceeds (as such terms are defined in subsections 2.4B(iii)(c) and
(d), the applicable Consolidated Excess Cash Flow or the amount in the
Escrow Account, as the case may be, that gave rise to such prepayment
and/or reduction. In the event that Company shall subsequently
determine that the actual Net Proceeds Amount was greater than the
amount set forth in such Officer's Certificate, Company shall promptly
make an additional prepayment of the Loans (and/or, if applicable, the
Revolving Loan Commitments shall be permanently reduced) in an amount
equal to the amount of such excess, and Company shall concurrently
therewith deliver to Agents an Officer's Certificate demonstrating the
derivation of the additional Net Proceeds Amount resulting in such
excess.
(h) Prepayments Due to Reductions or Restrictions of Revolving
Loan Commitments. Company shall from time to time prepay first the
Swing Line Loans and second the Revolving Loans to the extent
necessary (1) so that the Total Utilization of Revolving Loan
Commitments shall not at any time exceed the Revolving Loan
Commitments then in effect and (2) to give effect to the limitations
set forth in clause (b) of the second paragraph of subsection
2.1A(iii) and clause (b) of the second paragraph of subsection
2.1A(iv).
(iv) Application of Prepayments.
(a) Application of Voluntary Prepayments by Type of Loans and
Order of Maturity. Any voluntary prepayments pursuant to subsection
2.4B(i) shall be applied as specified by Company in the applicable
notice of prepayment; provided that in the event Company fails to
specify the Loans to which any such prepayment shall be applied, such
prepayment shall be applied first to repay outstanding Swing Line
Loans to the full extent thereof, second to repay outstanding Term
Loans to the full extent thereof, and third to repay outstanding
Revolving Loans to the full extent thereof. Any voluntary prepayments
of the Term Loans pursuant to subsection 2.4B(i) (whether the
application thereof is specified by Company or not) shall be applied
to prepay the Tranche A Term Loans and the Tranche B Term Loans on a
pro rata basis (in accordance with the respective outstanding
principal amounts thereof) and to reduce the scheduled installments of
principal of the Tranche A Term Loans and Tranche B Term Loans set
forth in subsection 2.4A(i) and 2.4A(ii) in inverse order of maturity.
(b) Application of Mandatory Prepayments by Type of Loans. Any
amount (the "APPLIED AMOUNT") required to be applied as a mandatory
prepayment of the Loans and/or a reduction of the Revolving Loan
Commitments pursuant to subsections 2.4B(iii)(a)-(g) shall be applied
first to prepay the Term Loans to the full extent thereof, second, to
the extent of any remaining portion of the Applied Amount, to prepay
the Swing Line Loans to the full extent thereof and to permanently
reduce the Revolving Loan Commitments by the amount of such
prepayment, third, to the extent of any remaining portion of the
Applied Amount, to prepay the Revolving Loans to the full extent
thereof and to further permanently reduce the Revolving Loan
Commitments by the amount of such prepayment, and fourth, to the
extent of any remaining portion of the Applied Amount, to further
permanently reduce the Revolving Loan Commitments to the full extent
thereof.
(c) Application of Mandatory Prepayments of Term Loans to Tranche
A Term Loans and Tranche B Term Loans and the Scheduled Installments
of Principal Thereof. Any mandatory prepayments of the Term Loans
pursuant to subsection 2.4B(iii) shall be applied to prepay the
Tranche A Term Loans and the Tranche B Term Loans on a pro rata basis
(in accordance with the respective outstanding principal amounts
thereof) and to reduce the scheduled installments of principal of the
Tranche A Term Loans and Tranche B Term Loans set forth in subsection
2.4A(i) and 2.4A(ii) in inverse order of maturity. Notwithstanding the
foregoing, in the case of any mandatory prepayment of the Term Loans,
if any Tranche A Term Loans are outstanding following application of
the mandatory prepayment, Company may elect to offer the Lenders of
the Tranche B Term Loans the option to waive the right to receive the
amount of such mandatory prepayment of such Tranche B Term Loans to
the extent the amount of the outstanding Tranche A Term Loans equals
or exceeds the amount of the prepayment of the Tranche B Term Loans.
If any Lender or Lenders elect to waive the right to receive the
amount of such mandatory prepayment, the amount that otherwise would
have been applied to mandatorily prepay the Tranche B Term Loans of
such Lender or Lenders shall be applied instead to the further
prepayment of the Tranche A Term Loans.
(d) Application of Prepayments to Base Rate Loans and Eurodollar
Rate Loans. Considering Tranche A Term Loans, Tranche B Term Loans and
Revolving Loans being prepaid separately, any prepayment thereof shall
be applied first to Base Rate Loans to the full extent thereof before
application to Eurodollar Rate Loans, in each case in a manner which
minimizes the amount of any payments required to be made by Company
pursuant to subsection 2.6D.
C. GENERAL PROVISIONS REGARDING PAYMENTS.
(i) Manner and Time of Payment. All payments by Company of principal,
interest, fees and other Obligations hereunder and under the Notes shall be
made in Dollars in same day funds, without defense, setoff or counterclaim,
free of any restriction or condition, and delivered to Administrative Agent
not later than 12:00 Noon (New York City time) on the date due at the
Funding and Payment Office for the account of Lenders; funds received by
Administrative Agent after that time on such due date shall be deemed to
have been paid by Company on the next succeeding Business Day. Company
hereby authorizes Administrative Agent to charge its accounts with
Administrative Agent in order to cause timely payment to be made to
Administrative Agent of all principal, interest, fees and expenses due
hereunder (subject to sufficient funds being available in its accounts for
that purpose).
(ii) Application of Payments to Principal and Interest. Except as
provided in subsection 2.2C, all payments in respect of the principal
amount of any Loan shall include payment of accrued interest on the
principal amount being repaid or prepaid, and all such payments (and, in
any event, any payments in respect of any Loan on a date when interest is
due and payable with respect to such Loan) shall be applied to the payment
of interest before application to principal.
(iii) Apportionment of Payments. Aggregate principal and interest
payments in respect of Term Loans and Revolving Loans shall be apportioned
among all outstanding Loans to which such payments relate, in each case
proportionately to Lenders' respective Pro Rata Shares. Administrative
Agent shall promptly distribute to each Lender, at its primary address set
forth below its name on the appropriate signature page hereof or at such
other address as such Lender may request, its Pro Rata Share of all such
payments received by Administrative Agent and the commitment fees of such
Lender when received by Administrative Agent pursuant to subsection 2.3.
Notwithstanding the foregoing provisions of this subsection 2.4C(iii), if,
pursuant to the provisions of subsection 2.6C, any Notice of
Conversion/Continuation is withdrawn as to any Affected Lender or if any
Affected Lender makes Base Rate Loans in lieu of its Pro Rata Share of any
Eurodollar Rate Loans, Administrative Agent shall give effect thereto in
apportioning payments received thereafter.
(iv) Payments on Business Days. Whenever any payment to be made
hereunder shall be stated to be due on a day that is not a Business Day,
such payment shall be made on the next succeeding Business Day and such
extension of time shall be included in the computation of the payment of
interest hereunder or of the commitment fees hereunder, as the case may be.
(v) Notation of Payment. Each Lender agrees that before disposing of
any Note held by it, or any part thereof (other than by granting
participations therein), that Lender will make a notation thereon of all
Loans evidenced by that Note and all principal payments previously made
thereon and of the date to which interest thereon has been paid; provided
that the failure to make (or any error in the making of) a notation of any
Loan made under such Note shall not limit or otherwise affect the
obligations of Company hereunder or under such Note with respect to any
Loan or any payments of principal or interest on such Note.
D. APPLICATION OF PROCEEDS OF COLLATERAL AND PAYMENTS
UNDER GUARANTIES
(i) Application of Proceeds of Collateral. Except as provided in
subsection 2.4B(iii)(a) with respect to prepayments from Net Asset Sale
Proceeds, all proceeds received by Administrative Agent in respect of any
sale of, collection from, or other realization upon all or any part of the
Collateral under any Collateral Document may, in the discretion of
Administrative Agent, be held by Administrative Agent as Collateral for,
and/or (then or at any time thereafter) applied in full or in part by
Administrative Agent against, the applicable Secured Obligations (as
defined in such Collateral Document) in the following order of priority:
(a) To the payment of all costs and expenses of such sale,
collection or other realization, including reasonable compensation to
Administrative Agent and its agents and counsel, and all other
expenses, liabilities and advances made or incurred by Administrative
Agent in connection therewith, and all amounts for which
Administrative Agent is entitled to indemnification under such
Collateral Document and all advances made by Administrative Agent
thereunder for the account of the applicable Loan Party, and to the
payment of all costs and expenses paid or incurred by Administrative
Agent in connection with the exercise of any right or remedy under
such Collateral Document, all in accordance with the terms of this
Agreement and such Collateral Document;
(b) thereafter, to the extent of any excess such proceeds, to the
payment of all other such Secured Obligations for the ratable benefit
of the holders thereof; and
(c) thereafter, to the extent of any excess such proceeds, to the
payment to or upon the order of such Loan Party or to whosoever may be
lawfully entitled to receive the same or as a court of competent
jurisdiction may direct.
(ii) Application of Payments Under Guaranties.
All payments received by Administrative Agent under any
of the Guaranties shall be applied promptly from time to
time by Administrative Agent in the following order of
priority:
(a) To the payment of the costs and expenses of any collection or
other realization under any of the Guaranties, including reasonable
compensation to Administrative Agent and its agents and counsel, and
all expenses, liabilities and advances made or incurred by
Administrative Agent in connection therewith, all in accordance with
the terms of this Agreement and such Guaranty;
(b) thereafter, to the extent of any excess such payments, to the
payment of all other Guarantied Obligations (as defined in such
Guaranty) for the ratable benefit of the holders thereof; and
thereafter, to the extent of any excess such payments, to the
payment to the applicable Subsidiary Guarantor or the applicable
Affiliated Stockholder or to whosoever may be lawfully entitled to
receive the same or as a court of competent
jurisdiction may direct.
2.5 USE OF PROCEEDS.
A. TERM LOANS. The proceeds of the Term Loans, together with other funds
available to Company, shall be applied by Company to refinance approximately
$75,585,000 of senior indebtedness under the Existing Credit Agreement, and (ii)
to pay fees and expenses incurred in connection with the Refinancing in an
aggregate maximum amount of $3,500,000.
B. REVOLVING LOANS; SWING LINE LOANS. The proceeds of
the Revolving Loans and any Swing Line Loans shall be applied
by Company for general corporate purposes.
C. MARGIN REGULATIONS. No portion of the proceeds of any borrowing under
this Agreement shall be used by Company or any of its Subsidiaries in any manner
that might cause the borrowing or the application of such proceeds to violate
Regulation G, Regulation U, Regulation T or Regulation X of the Board of
Governors of the Federal Reserve System or any other regulation of such Board or
to violate the Exchange Act, in each case as in effect on the date or dates of
such borrowing and such use of proceeds.
2.6 SPECIAL PROVISIONS GOVERNING EURODOLLAR RATE LOANS.
Notwithstanding any other provision of this Agreement to the contrary,
the following provisions shall govern with respect to Eurodollar Rate Loans as
to the matters covered:
DETERMINATION OF APPLICABLE INTEREST RATE. As soon as practicable after
10:00 A.M. (New York City time) on each Interest Rate Determination Date,
Administrative Agent shall determine (which determination shall, absent manifest
error, be final, conclusive and binding upon all parties) the interest rate that
shall apply to the Eurodollar Rate Loans for which an interest rate is then
being determined for the applicable Interest Period and shall promptly give
notice thereof (in writing or by telephone confirmed in writing) to Company and
each Lender.
B. INABILITY TO DETERMINE APPLICABLE INTEREST RATE. In the event that
Administrative Agent shall have determined (which determination shall be final
and conclusive and binding upon all parties hereto), on any Interest Rate
Determination Date with respect to any Eurodollar Rate Loans, that by reason of
circumstances affecting the London interbank market adequate and fair means do
not exist for ascertaining the interest rate applicable to such Loans on the
basis provided for in the definition of Adjusted Eurodollar Rate, Administrative
Agent shall on such date give notice (by telefacsimile or by telephone confirmed
in writing) to Company and each Lender of such determination, whereupon (i) no
Loans may be made as, or converted to, Eurodollar Rate Loans until such time as
Administrative Agent notifies Company and Lenders that the circumstances giving
rise to such notice no longer exist and (ii) any Notice of Borrowing or Notice
of Conversion/Continuation given by Company with respect to the Loans in respect
of which such determination was made shall be deemed to be rescinded by Company.
C. ILLEGALITY OR IMPRACTICABILITY OF EURODOLLAR RATE LOANS. In the event
that on any date any Lender shall have determined (which determination shall be
final and conclusive and binding upon all parties hereto but shall be made only
after consultation with Company and Administrative Agent) that the making,
maintaining or continuation of its Eurodollar Rate Loans (i) has become unlawful
as a result of compliance by such Lender in good faith with any law, treaty,
governmental rule, regulation, guideline or order (or would conflict with any
such treaty, governmental rule, regulation, guideline or order not having the
force of law even though the failure to comply therewith would not be unlawful)
or (ii) has become impracticable, or would cause such Lender material hardship,
as a result of contingencies occurring after the date of this Agreement which
materially and adversely affect the London interbank market or the position of
such Lender in that market, then, and in any such event, such Lender shall be an
"AFFECTED LENDER" and it shall on that day give notice (by telefacsimile or by
telephone confirmed in writing) to Company and Administrative Agent of such
determination (which notice Administrative Agent shall promptly transmit to each
other Lender). Thereafter (a) the obligation of the Affected Lender to make
Loans as, or to convert Loans to, Eurodollar Rate Loans shall be suspended until
such notice shall be withdrawn by the Affected Lender, (b) to the extent such
determination by the Affected Lender relates to a Eurodollar Rate Loan then
being requested by Company pursuant to a Notice of Borrowing or a Notice of
Conversion/Continuation, the Affected Lender shall make such Loan as (or convert
such Loan to, as the case may be) a Base Rate Loan, (c) the Affected Lender's
obligation to maintain its outstanding Eurodollar Rate Loans (the "AFFECTED
LOANS") shall be terminated at the earlier to occur of the expiration of the
Interest Period then in effect with respect to the Affected Loans or when
required by law, and (d) the Affected Loans shall automatically convert into
Base Rate Loans on the date of such termination. Notwithstanding the foregoing,
to the extent a determination by an Affected Lender as described above relates
to a Eurodollar Rate Loan then being requested by Company pursuant to a Notice
of Borrowing or a Notice of Conversion/Continuation, Company shall have the
option, subject to the provisions of subsection 2.6D, to rescind such Notice of
Borrowing or Notice of Conversion/Continuation as to all Lenders by giving
notice (by telefacsimile or by telephone confirmed in writing) to Administrative
Agent of such rescission on the date on which the Affected Lender gives notice
of its determination as described above (which notice of rescission
Administrative Agent shall promptly transmit to each other Lender). Except as
provided in the immediately preceding sentence, nothing in this subsection 2.6C
shall affect the obligation of any Lender other than an Affected Lender to make
or maintain Loans as, or to convert Loans to, Eurodollar Rate Loans in
accordance with the terms of this Agreement.
D. COMPENSATION FOR BREAKAGE OR NON-COMMENCEMENT OF INTEREST PERIODS.
Company shall compensate each Lender, upon written request by that Lender (which
request shall set forth the basis for requesting such amounts), for all
reasonable losses, expenses and liabilities (including any interest paid by that
Lender to lenders of funds borrowed by it to make or carry its Eurodollar Rate
Loans and any loss, expense or liability sustained by that Lender in connection
with the liquidation or re-employment of such funds) which that Lender may
sustain: (i) if for any reason (other than a default by that Lender) a borrowing
of any Eurodollar Rate Loan does not occur on a date specified therefor in a
Notice of Borrowing or a telephonic request for borrowing, or a conversion to or
continuation of any Eurodollar Rate Loan does not occur on a date specified
therefor in a Notice of Conversion/Continuation or a telephonic request for
conversion or continuation, (ii) if any prepayment (including any prepayment
pursuant to subsection 2.4B(i)) or other principal payment or any conversion of
any of its Eurodollar Rate Loans occurs on a date prior to the last day of an
Interest Period applicable to that Loan, (iii) if any prepayment of any of its
Eurodollar Rate Loans is not made on any date specified in a notice of
prepayment given by Company, or (iv) as a consequence of any other default by
Company in the repayment of its Eurodollar Rate Loans when required by the terms
of this Agreement.
E. BOOKING OF EURODOLLAR RATE LOANS. Any Lender may
make, carry or transfer Eurodollar Rate Loans at, to, or for
the account of any of its branch offices or the office of an
Affiliate of that Lender.
F. ASSUMPTIONS CONCERNING FUNDING OF EURODOLLAR RATE LOANS. Calculation of
all amounts payable to a Lender under this subsection 2.6 and under subsection
2.7A shall be made as though that Lender had actually funded each of its
relevant Eurodollar Rate Loans through the purchase of a Eurodollar deposit
bearing interest at the rate obtained pursuant to clause (i) of the definition
of Adjusted Eurodollar Rate in an amount equal to the amount of such Eurodollar
Rate Loan and having a maturity comparable to the relevant Interest Period and
through the transfer of such Eurodollar deposit from an offshore office of that
Lender to a domestic office of that Lender in the United States of America;
provided, however, that each Lender may fund each of its Eurodollar Rate Loans
in any manner it sees fit and the foregoing assumptions shall be utilized only
for the purposes of calculating amounts payable under this subsection 2.6 and
under subsection 2.7A.
G. EURODOLLAR RATE LOANS AFTER DEFAULT. After the occurrence of and during
the continuation of a Potential Event of Default or an Event of Default, (i)
Company may not elect to have a Loan be made or maintained as, or converted to,
a Eurodollar Rate Loan after the expiration of any Interest Period then in
effect for that Loan and (ii) subject to the provisions of subsection 2.6D, any
Notice of Borrowing or Notice of Conversion/Continuation given by Company with
respect to a requested borrowing or conversion/continuation that has not yet
occurred shall be deemed to be rescinded by Company.
2.7 INCREASED COSTS; TAXES; CAPITAL ADEQUACY.
A. COMPENSATION FOR INCREASED COSTS AND TAXES. Subject to the provisions of
subsection 2.7B (which shall be controlling with respect to the matters covered
thereby), in the event that any Lender shall determine (which determination
shall, absent manifest error, be final and conclusive and binding upon all
parties hereto) that any law, treaty or governmental rule, regulation or order,
or any change therein or in the interpretation, administration or application
thereof (including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by such
Lender with any guideline, request or directive issued or made after the date
hereof by any central bank or other governmental or quasi-governmental authority
(whether or not having the force of law):
(i) subjects such Lender (or its applicable lending office) to any
additional Tax (other than any Tax on the overall net income of such
Lender) with respect to this Agreement or any of its obligations hereunder
or any payments to such Lender (or its applicable lending office) of
principal, interest, fees or any other amount payable hereunder;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement against
assets held by, or deposits or other liabilities in or for the account of,
or advances or loans by, or other credit extended by, or any other
acquisition of funds by, any office of such Lender (other than any such
reserve or other requirements with respect to Eurodollar Rate Loans that
are reflected in the definition of Adjusted Eurodollar Rate); or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Lender (or its applicable lending office) or
its obligations hereunder or the London interbank market;
and the result of any of the foregoing is to increase the cost to such Lender of
agreeing to make, making or maintaining Loans hereunder or to reduce any amount
received or receivable by such Lender (or its applicable lending office) with
respect thereto; then, in any such case, Company shall promptly pay to such
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts (in the form of an increased rate of, or a
different method of calculating, interest or otherwise as such Lender in its
sole discretion shall determine) as may be necessary to compensate such Lender
for any such increased cost or reduction in amounts received or receivable
hereunder. Such Lender shall deliver to Company (with a copy to Administrative
Agent) a written statement, setting forth in reasonable detail the basis for
calculating the additional amounts owed to such Lender under this subsection
2.7A, which statement shall be conclusive and binding upon all parties hereto
absent manifest error.
B. WITHHOLDING OF TAXES.
(i) Payments to Be Free and Clear. All sums payable by Company under
this Agreement and the other Loan Documents shall (except to the extent
required by law) be paid free and clear of, and without any deduction or
withholding on account of, any Tax (other than a Tax on the overall net
income of any Lender) imposed, levied, collected, withheld or assessed by
or within the United States of America or any political subdivision in or
of the United States of America or any other jurisdiction from or to which
a payment is made by or on behalf of Company or by any federation or
organization of which the United States of America or any such jurisdiction
is a member at the time of payment.
(ii) Grossing-up of Payments. If Company or any other Person is
required by law to make any deduction or withholding on account of any such
Tax from any sum paid or payable by Company to Administrative Agent or any
Lender under any of the Loan Documents:
(a) Company shall notify Administrative Agent of any such
requirement or any change in any such requirement as soon as Company
becomes aware of it;
(b) Company shall pay any such Tax before the date on which
penalties attach thereto, such payment to be made (if the liability to
pay is imposed on Company) for its own account or (if that liability
is imposed on Administrative Agent or such Lender, as the case may be)
on behalf of and in the name of Administrative Agent or such Lender;
(c) the sum payable by Company in respect of which the relevant
deduction, withholding or payment is required shall be increased to
the extent necessary to ensure that, after the making of that
deduction, withholding or payment, Administrative Agent or such
Lender, as the case may be, receives on the due date a net sum equal
to what it would have received had no such deduction, withholding or
payment been required or made; and
(d) within 30 days after paying any sum from which it is required
by law to make any deduction or withholding, and within 30 days after
the due date of payment of any Tax which it is required by clause (b)
above to pay, Company shall deliver to Administrative Agent evidence
satisfactory to the other affected parties of such deduction,
withholding or payment and of the remittance thereof to the relevant
taxing or other authority;
provided that no such additional amount shall be required to be paid to any
Lender under clause (c) above except to the extent that any change after
the date hereof (in the case of each Lender listed on the signature pages
hereof) or after the date of the Assignment Agreement pursuant to which
such Lender became a Lender (in the case of each other Lender) in any such
requirement for a deduction, withholding or payment as is mentioned therein
shall result in an increase in the rate of such deduction, withholding or
payment from that in effect at the date of this Agreement or at the date of
such Assignment Agreement, as the case may be, in respect of payments to
such Lender.
(iii) Evidence of Exemption from U.S. Withholding
Tax.
(a) Each Lender that is organized under the laws of any
jurisdiction other than the United States or any state or other
political subdivision thereof (for purposes of this subsection
2.7B(iii), a "NON-US LENDER") shall deliver to Administrative Agent
for transmission to Company, on or prior to the Closing Date (in the
case of each Lender listed on the signature pages hereof) or on or
prior to the date of the Assignment Agreement pursuant to which it
becomes a Lender (in the case of each other Lender), and at such other
times as may be necessary in the determination of Company or
Administrative Agent (each in the reasonable exercise of its
discretion), (1) two original copies of Internal Revenue Service Form
1001 or 4224 (or any successor forms), properly completed and duly
executed by such Lender, together with any other certificate or
statement of exemption required under the Internal Revenue Code or the
regulations issued thereunder to establish that such Lender is not
subject to deduction or withholding of United States federal income
tax with respect to any payments to such Lender of principal,
interest, fees or other amounts payable under any of the Loan
Documents or (2) if such Lender is not a "bank" or other Person
described in Section 881(c)(3) of the Internal Revenue Code and cannot
deliver either Internal Revenue Service Form 1001 or 4224 pursuant to
clause (1) above, a Certificate re Non-Bank Status together with two
original copies of Internal Revenue Service Form W-8 (or any successor
form), properly completed and duly executed by such Lender, together
with any other certificate or statement of exemption required under
the Internal Revenue Code or the regulations issued thereunder to
establish that such Lender is not subject to deduction or withholding
of United States federal income tax with respect to any payments to
such Lender of interest payable under any of the Loan Documents.
(b) Each Lender required to deliver any forms, certificates or
other evidence with respect to United States federal income tax
withholding matters pursuant to subsection 2.7B(iii)(a) hereby agrees,
from time to time after the initial delivery by such Lender of such
forms, certificates or other evidence, whenever a lapse in time or
change in circumstances renders such forms, certificates or other
evidence obsolete or inaccurate in any material respect, that such
Lender shall promptly (1) deliver to Administrative Agent for
transmission to Company two new original copies of Internal Revenue
Service Form 1001 or 4224, or a Certificate re Non-Bank Status and two
original copies of Internal Revenue Service Form W-8, as the case may
be, properly completed and duly executed by such Lender, together with
any other certificate or statement of exemption required in order to
confirm or establish that such Lender is not subject to deduction or
withholding of United States federal income tax with respect to
payments to such Lender under the Loan Documents or (2) notify
Administrative Agent and Company of its inability to deliver any such
forms, certificates or other evidence.
(c) Company shall not be required to pay any additional amount to
any Non-US Lender under clause (c) of subsection 2.7B(ii) if such
Lender shall have failed to satisfy the requirements of clause (a) or
(b)(1) of this subsection 2.7B(iii); provided that if such Lender
shall have satisfied the requirements of subsection 2.7B(iii)(a) on
the Closing Date (in the case of each Lender listed on the signature
pages hereof) or on the date of the Assignment Agreement pursuant to
which it became a Lender (in the case of each other Lender), nothing
in this subsection 2.7B(iii)(c) shall relieve Company of its
obligation to pay any additional amounts pursuant to clause (c) of
subsection 2.7B(ii) in the event that, as a result of any change in
any applicable law, treaty or governmental rule, regulation or order,
or any change in the interpretation, administration or application
thereof, such Lender is no longer properly entitled to deliver forms,
certificates or other evidence at a subsequent date establishing the
fact that such Lender is not subject to withholding as described in
subsection 2.7B(iii)(a).
C. CAPITAL ADEQUACY ADJUSTMENT. If any Lender shall have determined that
the adoption, effectiveness, phase-in or applicability after the date hereof of
any law, rule or regulation (or any provision thereof) regarding capital
adequacy, or any change therein or in the interpretation or administration
thereof by any governmental authority, central bank or comparable agency charged
with the interpretation or administration thereof, or compliance by any Lender
(or its applicable lending office) with any guideline, request or directive
regarding capital adequacy (whether or not having the force of law) of any such
governmental authority, central bank or comparable agency, has or would have the
effect of reducing the rate of return on the capital of such Lender or any
corporation controlling such Lender as a consequence of, or with reference to,
such Lender's Loans or Commitments or Letters of Credit or participations
therein or other obligations hereunder with respect to the Loans or the Letters
of Credit to a level below that which such Lender or such controlling
corporation could have achieved but for such adoption, effectiveness, phase-in,
applicability, change or compliance (taking into consideration the policies of
such Lender or such controlling corporation with regard to capital adequacy),
then from time to time, within five Business Days after receipt by Company from
such Lender of the statement referred to in the next sentence, Company shall pay
to such Lender such additional amount or amounts as will compensate such Lender
or such controlling corporation on an after-tax basis for such reduction. Such
Lender shall deliver to Company (with a copy to Administrative Agent) a written
statement, setting forth in reasonable detail the basis of the calculation of
such additional amounts, which statement shall be conclusive and binding upon
all parties hereto absent manifest error.
2.8 OBLIGATION OF LENDERS AND ISSUING LENDERS TO MITIGATE.
Each Lender and Issuing Lender agrees that, as promptly as practicable
after the officer of such Lender or Issuing Lender responsible for administering
the Loans or Letters of Credit of such Lender or Issuing Lender, as the case may
be, becomes aware of the occurrence of an event or the existence of a condition
that would cause such Lender to become an Affected Lender or that would entitle
such Lender or Issuing Lender to receive payments under subsection 2.7 or
subsection 3.6, it will, to the extent not inconsistent with the internal
policies of such Lender or Issuing Lender and any applicable legal or regulatory
restrictions, use reasonable efforts (i) to make, issue, fund or maintain the
Commitments of such Lender or the affected Loans or Letters of Credit of such
Lender or Issuing Lender through another lending or letter of credit office of
such Lender or Issuing Lender, or (ii) take such other measures as such Lender
or Issuing Lender may deem reasonable, if as a result thereof the circumstances
which would cause such Lender to be an Affected Lender would cease to exist or
the additional amounts which would otherwise be required to be paid to such
Lender or Issuing Lender pursuant to subsection 2.7 or subsection 3.6 would be
materially reduced and if, as determined by such Lender or Issuing Lender in its
sole discretion, the making, issuing, funding or maintaining of such Commitments
or Loans or Letters of Credit through such other lending or letter of credit
office or in accordance with such other measures, as the case may be, would not
otherwise materially adversely affect such Commitments or Loans or Letters of
Credit or the interests of such Lender or Issuing Lender; provided that such
Lender or Issuing Lender will not be obligated to utilize such other lending or
letter of credit office pursuant to this subsection 2.8 unless Company agrees to
pay all incremental expenses incurred by such Lender or Issuing Lender as a
result of utilizing such other lending or letter of credit office as described
in clause (i) above. A certificate as to the amount of any such expenses payable
by Company pursuant to this subsection 2.8 (setting forth in reasonable detail
the basis for requesting such amount) submitted by such Lender or Issuing Lender
to Company (with a copy to Administrative Agent) shall be conclusive absent
manifest error.
SECTION 3. LETTERS OF CREDIT
3.1 ISSUANCE OF LETTERS OF CREDIT AND LENDERS' PURCHASE OF
PARTICIPATIONS THEREIN.
A. LETTERS OF CREDIT. In addition to Company requesting that Lenders make
Revolving Loans pursuant to subsection 2.1A(iii) and that Swing Line Lender make
Swing Line Loans pursuant to subsection 2.1A(iv), Company may request, in
accordance with the provisions of this subsection 3.1, from time to time during
the period from the Closing Date to but excluding the Revolving Loan Commitment
Termination Date, that one or more Lenders issue Letters of Credit for the
account of Company for the purposes specified in the definitions of Commercial
Letters of Credit and Standby Letters of Credit. Subject to the terms and
conditions of this Agreement and in reliance upon the representations and
warranties of Company herein set forth, any one or more Lenders may, but (except
as provided in subsection 3.1B(ii)) shall not be obligated to, issue such
Letters of Credit in accordance with the provisions of this subsection 3.1;
provided that Company shall not request that any Lender issue (and no Lender
shall issue):
(i) any Letter of Credit if, after giving effect to such issuance, the
Total Utilization of Revolving Loan Commitments would exceed the Revolving
Loan Commitments then in effect;
(ii) any Letter of Credit if, after giving
effect to such issuance, the Letter of Credit Usage would
exceed $10,000,000;
(iii) any Standby Letter of Credit having an expiration date later
than the earlier of (a) the Revolving Loan Commitment Termination Date and
(b) the date which is one year from the date of issuance of such Standby
Letter of Credit; provided that the immediately preceding clause (b) shall
not prevent any Issuing Lender from agreeing that a Standby Letter of
Credit will automatically be extended for one or more successive periods
not to exceed one year each unless such Issuing Lender elects not to extend
for any such additional period; and provided, further that such Issuing
Lender shall elect not to extend such Standby Letter of Credit if it has
knowledge that an Event of Default has occurred and is continuing (and has
not been waived in accordance with subsection 10.6) at the time such
Issuing Lender must elect whether or not to allow such extension;
(iv) any Commercial Letter of Credit having an expiration date (a)
later than the earlier of (X) the date which is 30 days prior to the
Revolving Loan Commitment Termination Date and (Y) the date which is 180
days from the date of issuance of such Commercial Letter of Credit or (b)
that is otherwise unacceptable to the applicable Issuing Lender in its
reasonable discretion; or
(v) any Letter of Credit denominated in a currency
other than Dollars.
B. MECHANICS OF ISSUANCE.
(i) Notice of Issuance. Whenever Company desires the issuance of a
Letter of Credit, it shall deliver to Administrative Agent a Notice of
Issuance of Letter of Credit substantially in the form of Exhibit III
annexed hereto no later than 12:00 Noon (New York City time) at least three
Business Days (in the case of Standby Letters of Credit) or five Business
Days (in the case of Commercial Letters of Credit), or in each case such
shorter period as may be agreed to by the Issuing Lender in any particular
instance, in advance of the proposed date of issuance. The Notice of
Issuance of Letter of Credit shall specify (a) the proposed date of
issuance (which shall be a Business Day), (b) whether the Letter of Credit
is to be a Standby Letter of Credit or a Commercial Letter of Credit, (c)
the face amount of the Letter of Credit, (d) the expiration date of the
Letter of Credit, (e) the name and address of the beneficiary, and (f)
either the verbatim text of the proposed Letter of Credit or the proposed
terms and conditions thereof, including a precise description of any
documents to be presented by the beneficiary which, if presented by the
beneficiary prior to the expiration date of the Letter of Credit, would
require the Issuing Lender to make payment under the Letter of Credit;
provided that the Issuing Lender, in its reasonable discretion, may require
changes in the text of the proposed Letter of Credit or any such documents;
and provided, further that no Letter of Credit shall require payment
against a conforming draft to be made thereunder on the same business day
(under the laws of the jurisdiction in which the office of the Issuing
Lender to which such draft is required to be presented is located) that
such draft is presented if such presentation is made after 10:00 A.M. (in
the time zone of such office of the Issuing Lender) on such business day.
Company shall notify the applicable Issuing Lender (and
Administrative Agent, if Administrative Agent is not such Issuing Lender)
prior to the issuance of any Letter of Credit in the event that any of the
matters to which Company is required to certify in the applicable Notice of
Issuance of Letter of Credit is no longer true and correct as of the
proposed date of issuance of such Letter of Credit, and upon the issuance
of any Letter of Credit Company shall be deemed to have re-certified, as of
the date of such issuance, as to the matters to which Company is required
to certify in the applicable Notice of Issuance of Letter of Credit.
(ii) Determination of Issuing Lender. Upon receipt by Administrative
Agent of a Notice of Issuance of Letter of Credit pursuant to subsection
3.1B(i) requesting the issuance of a Letter of Credit, in the event
Administrative Agent elects to issue such Letter of Credit, Administrative
Agent shall promptly so notify Company, and Administrative Agent shall be
the Issuing Lender with respect thereto. In the event that Administrative
Agent, in its sole discretion, elects not to issue such Letter of Credit,
Administrative Agent shall promptly so notify Company, whereupon Company
may request any other Lender to issue such Letter of Credit by delivering
to such Lender a copy of the applicable Notice of Issuance of Letter of
Credit. Any Lender so requested to issue such Letter of Credit shall
promptly notify Company and Administrative Agent whether or not, in its
sole discretion, it has elected to issue such Letter of Credit, and any
such Lender which so elects to issue such Letter of Credit shall be the
Issuing Lender with respect thereto. In the event that all other Lenders
shall have declined to issue such Letter of Credit, notwithstanding the
prior election of Administrative Agent not to issue such Letter of Credit,
Administrative Agent shall be obligated to issue such Letter of Credit and
shall be the Issuing Lender with respect thereto, notwithstanding the fact
that the Letter of Credit Usage with respect to such Letter of Credit and
with respect to all other Letters of Credit issued by Administrative Agent,
when aggregated with Administrative Agent's outstanding Revolving Loans and
Swing Line Loans, may exceed Administrative Agent's Revolving Loan
Commitment then in effect.
(iii) Issuance of Letter of Credit. Upon satisfaction or waiver (in
accordance with subsection 10.6) of the conditions set forth in subsection
4.3, the Issuing Lender shall issue the requested Letter of Credit in
accordance with the Issuing Lender's standard operating procedures.
(iv) Notification to Lenders. Upon the issuance of any Letter of
Credit the applicable Issuing Lender shall promptly notify Administrative
Agent and each other Lender of such issuance, which notice shall be
accompanied by a copy of such Letter of Credit. Promptly after receipt of
such notice (or, if Administrative Agent is the Issuing Lender, together
with such notice), Administrative Agent shall notify each Lender of the
amount of such Lender's respective participation in such Letter of Credit,
determined in accordance with subsection 3.1C.
(v) Reports to Lenders. Within 15 days after the end of each calendar
quarter ending after the Closing Date, so long as any Letter of Credit
shall have been outstanding during such calendar quarter, each Issuing
Lender shall deliver to each other Lender a report setting forth for such
calendar quarter the daily aggregate amount available to be drawn under the
Letters of Credit issued by such Issuing Lender that were outstanding
during such calendar quarter.
C. LENDERS' PURCHASE OF PARTICIPATIONS IN LETTERS OF CREDIT. Immediately
upon the issuance of each Letter of Credit, each Lender shall be deemed to, and
hereby agrees to, have irrevocably purchased from the Issuing Lender a
participation in such Letter of Credit and any drawings honored thereunder in an
amount equal to such Lender's Pro Rata Share of the maximum amount which is or
at any time may become available to be drawn thereunder.
3.2 LETTER OF CREDIT FEES.
Company agrees to pay the following amounts with respect to Letters of
Credit issued hereunder:
(i) with respect to each Standby Letter of Credit, (a) a fronting fee,
payable directly to the applicable Issuing Lender for its own account,
equal to 0.25% per annum of the daily amount available to be drawn under
such Standby Letter of Credit and (b) a letter of credit fee, payable to
Administrative Agent for the account of Lenders, equal to 3.00% per annum
minus the Applicable Pricing Discount, if any, of the daily amount
available to be drawn under such Standby Letter of Credit, each such
fronting fee or letter of credit fee to be payable in arrears on and to
(but excluding) the last day of each March, June, September and December of
each year and computed on the basis of a 360-day year for the actual number
of days elapsed;
(ii) with respect to each Commercial Letter of Credit, (a) a fronting
fee, payable directly to the applicable Issuing Lender for its own account,
equal to 0.25% per annum of the daily amount available to be drawn under
such Commercial Letter of Credit and (b) a letter of credit fee, payable to
Administrative Agent for the account of Lenders, equal to 1.75% per annum
minus the Applicable Pricing Discount, if any, of the daily amount
available to be drawn under such Commercial Letter of Credit, each such
fronting fee or letter of credit fee to be payable in arrears on and to
(but excluding) the last day of each March, June, September and December of
each year and computed on the basis of a 360-day year for the actual number
of days elapsed; and
(iii) with respect to the issuance, amendment or transfer of each
Letter of Credit and each payment of a drawing made thereunder (without
duplication of the fees payable under clauses (i) and (ii) above),
documentary and processing charges payable directly to the applicable
Issuing Lender for its own account in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of such issuance,
amendment, transfer or payment, as the case may be.
For purposes of calculating any fees payable under clauses (i) and (ii) of this
subsection 3.2, the daily amount available to be drawn under any Letter of
Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i)(b) or (ii)(b) of this subsection 3.2, Administrative
Agent shall distribute to each Lender its Pro Rata Share of such amount.
3.3 DRAWINGS AND REIMBURSEMENT OF AMOUNTS PAID UNDER LETTERS
OF CREDIT.
A. RESPONSIBILITY OF ISSUING LENDER WITH RESPECT TO DRAWINGS. In
determining whether to honor any drawing under any Letter of Credit by the
beneficiary thereof, the Issuing Lender shall be responsible only to examine the
documents delivered under such Letter of Credit with reasonable care so as to
ascertain whether they appear on their face to be in accordance with the terms
and conditions of such Letter of Credit.
B. REIMBURSEMENT BY COMPANY OF AMOUNTS PAID UNDER LETTERS OF CREDIT. In the
event an Issuing Lender has determined to honor a drawing under a Letter of
Credit issued by it, such Issuing Lender shall immediately notify Company and
Administrative Agent, and Company shall reimburse such Issuing Lender on or
before the Business Day immediately following the date on which such drawing is
honored (the "REIMBURSEMENT DATE") in an amount in Dollars and in same day funds
equal to the amount of such honored drawing; provided that, anything contained
in this Agreement to the contrary notwithstanding, (i) unless Company shall have
notified Administrative Agent and such Issuing Lender prior to 10:00 A.M. (New
York City time) on the date such drawing is honored that Company intends to
reimburse such Issuing Lender for the amount of such honored drawing with funds
other than the proceeds of Revolving Loans, Company shall be deemed to have
given a timely Notice of Borrowing to Administrative Agent requesting Lenders to
make Revolving Loans that are Base Rate Loans on the Reimbursement Date in an
amount in Dollars equal to the amount of such honored drawing and (ii) subject
to satisfaction or waiver of the conditions specified in subsection 4.2B,
Lenders shall, on the Reimbursement Date, make Revolving Loans that are Base
Rate Loans in the amount of such honored drawing, the proceeds of which shall be
applied directly by Administrative Agent to reimburse such Issuing Lender for
the amount of such honored drawing; and provided, further that if for any reason
proceeds of Revolving Loans are not received by such Issuing Lender on the
Reimbursement Date in an amount equal to the amount of such honored drawing,
Company shall reimburse such Issuing Lender, on demand, in an amount in same day
funds equal to the excess of the amount of such honored drawing over the
aggregate amount of such Revolving Loans, if any, which are so received. Nothing
in this subsection 3.3B shall be deemed to relieve any Lender from its
obligation to make Revolving Loans on the terms and conditions set forth in this
Agreement, and Company shall retain any and all rights it may have against any
Lender resulting from the failure of such Lender to make such Revolving Loans
under this subsection 3.3B.
C. PAYMENT BY LENDERS OF UNREIMBURSED AMOUNTS PAID UNDER
LETTERS OF CREDIT.
(i) Payment by Lenders. In the event that Company shall fail for any
reason to reimburse any Issuing Lender as provided in subsection 3.3B in an
amount equal to the amount of any drawing honored by such Issuing Lender
under a Letter of Credit issued by it, such Issuing Lender shall promptly
notify each other Lender of the unreimbursed amount of such honored drawing
and of such other Lender's respective participation therein based on such
Lender's Pro Rata Share. Each Lender shall make available to such Issuing
Lender an amount equal to its respective participation, in Dollars and in
same day funds, at the office of such Issuing Lender specified in such
notice, not later than 12:00 Noon (New York City time) on the first
business day (under the laws of the jurisdiction in which such office of
such Issuing Lender is located) after the date notified by such Issuing
Lender. In the event that any Lender fails to make available to such
Issuing Lender on such business day the amount of such Lender's
participation in such Letter of Credit as provided in this subsection 3.3C,
such Issuing Lender shall be entitled to recover such amount on demand from
such Lender together with interest thereon at the rate customarily used by
such Issuing Lender for the correction of errors among banks for three
Business Days and thereafter at the Base Rate. Nothing in this subsection
3.3C shall be deemed to prejudice the right of any Lender to recover from
any Issuing Lender any amounts made available by such Lender to such
Issuing Lender pursuant to this subsection 3.3C in the event that it is
determined by the final judgment of a court of competent jurisdiction that
the payment with respect to a Letter of Credit by such Issuing Lender in
respect of which payment was made by such Lender constituted gross
negligence or willful misconduct on the part of such Issuing Lender.
(ii) Distribution to Lenders of Reimbursements Received From Company.
In the event any Issuing Lender shall have been reimbursed by other Lenders
pursuant to subsection 3.3C(i) for all or any portion of any drawing
honored by such Issuing Lender under a Letter of Credit issued by it, such
Issuing Lender shall distribute to each other Lender which has paid all
amounts payable by it under subsection 3.3C(i) with respect to such honored
drawing such other Lender's Pro Rata Share of all payments subsequently
received by such Issuing Lender from Company in reimbursement of such
honored drawing when such payments are received. Any such distribution
shall be made to a Lender at its primary address set forth below its name
on the appropriate signature page hereof or at such other address as such
Lender may request.
D. INTEREST ON AMOUNTS PAID UNDER LETTERS OF CREDIT.
(i) Payment of Interest by Company. Company agrees to pay to each
Issuing Lender, with respect to drawings honored under any Letters of
Credit issued by it, interest on the amount paid by such Issuing Lender in
respect of each such honored drawing from the date such drawing is honored
to but excluding the date such amount is reimbursed by Company (including
any such reimbursement out of the proceeds of Revolving Loans pursuant to
subsection 3.3B) at a rate equal to (a) for the period from the date such
drawing is honored to but excluding the Reimbursement Date, the rate then
in effect under this Agreement with respect to Revolving Loans that are
Base Rate Loans and (b) thereafter, a rate which is 2% per annum in excess
of the rate of interest otherwise payable under this Agreement with respect
to Revolving Loans that are Base Rate Loans. Interest payable pursuant to
this subsection 3.3D(i) shall be computed on the basis of a 360-day year
for the actual number of days elapsed in the period during which it accrues
and shall be payable on demand or, if no demand is made, on the date on
which the related drawing under a Letter of Credit is reimbursed in full.
(ii) Distribution of Interest Payments by Issuing Lender. Promptly
upon receipt by any Issuing Lender of any payment of interest pursuant to
subsection 3.3D(i) with respect to a drawing honored under a Letter of
Credit issued by it, (a) such Issuing Lender shall distribute to each other
Lender, out of the interest received by such Issuing Lender in respect of
the period from the date such drawing is honored to but excluding the date
on which such Issuing Lender is reimbursed for the amount of such drawing
(including any such reimbursement out of the proceeds of Revolving Loans
pursuant to subsection 3.3B), the amount that such other Lender would have
been entitled to receive in respect of the letter of credit fee that would
have been payable in respect of such Letter of Credit for such period
pursuant to subsection 3.2 if no drawing had been honored under such Letter
of Credit, and (b) in the event such Issuing Lender shall have been
reimbursed by other Lenders pursuant to subsection 3.3C(i) for all or any
portion of such honored drawing, such Issuing Lender shall distribute to
each other Lender which has paid all amounts payable by it under subsection
3.3C(i) with respect to such honored drawing such other Lender's Pro Rata
Share of any interest received by such Issuing Lender in respect of that
portion of such honored drawing so reimbursed by other Lenders for the
period from the date on which such Issuing Lender was so reimbursed by
other Lenders to but excluding the date on which such portion of such
honored drawing is reimbursed by Company. Any such distribution shall be
made to a Lender at its primary address set forth below its name on the
appropriate signature page hereof or at such other address as such Lender
may request.
3.4 OBLIGATIONS ABSOLUTE.
The obligation of Company to reimburse each Issuing Lender for
drawings honored under the Letters of Credit issued by it and to repay any
Revolving Loans made by Lenders pursuant to subsection 3.3B and the obligations
of Lenders under subsection 3.3C(i) shall be unconditional and irrevocable and
shall be paid strictly in accordance with the terms of this Agreement under all
circumstances including any of the following circumstances:
(i) any lack of validity or enforceability of any
Letter of Credit;
(ii) the existence of any claim, set-off, defense or other right which
Company or any Lender may have at any time against a beneficiary or any
transferee of any Letter of Credit (or any Persons for whom any such
transferee may be acting), any Issuing Lender or other Lender or any other
Person or, in the case of a Lender, against Company, whether in connection
with this Agreement, the transactions contemplated herein or any unrelated
transaction (including any underlying transaction between Company or one of
its Subsidiaries and the beneficiary for which any Letter of Credit was
procured);
(iii) any draft or other document presented under any 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;
(iv) payment by the applicable Issuing Lender under any Letter of
Credit against presentation of a draft or other document which does not
substantially comply with the terms of such Letter of Credit;
(v) any adverse change in the business, operations,
properties, assets, condition (financial or otherwise) or
prospects of Company or any of its Subsidiaries;
(vi) any breach of this Agreement or any other
Loan Document by any party thereto;
(vii) any other circumstance or happening
whatsoever, whether or not similar to any of the
foregoing; or
(viii) the fact that an Event of Default or a
Potential Event of Default shall have occurred and be
continuing;
provided, in each case, that payment by the applicable Issuing Lender under the
applicable Letter of Credit shall not have constituted gross negligence or
willful misconduct of such Issuing Lender under the circumstances in question
(as determined by a final judgment of a court of competent jurisdiction).
3.5 INDEMNIFICATION; NATURE OF ISSUING LENDERS' DUTIES.
A. INDEMNIFICATION. In addition to amounts payable as
provided in subsection 3.6, Company hereby agrees to protect,
indemnify, pay and save harmless each Issuing Lender from and
against any and all claims, demands, liabilities, damages,
losses, costs, charges and expenses (including reasonable
fees, expenses and disbursements of counsel and allocated
costs of internal counsel) which such Issuing Lender may incur
or be subject to as a consequence, direct or indirect, of
(i) the issuance of any Letter of Credit by such Issuing
Lender, other than as a result of (a) the gross negligence or
willful misconduct of such Issuing Lender as determined by a
final judgment of a court of competent jurisdiction or (b)
subject to the following clause (ii), the wrongful dishonor by
such Issuing Lender of a proper demand for payment made under
any Letter of Credit issued by it or (ii) the failure of such
Issuing Lender to honor a drawing under any such Letter of
Credit as a result of any act or omission, whether rightful or
wrongful, of any present or future de jure or de facto
government or governmental authority (all such acts or
omissions herein called "GOVERNMENTAL ACTS").
B. NATURE OF ISSUING LENDERS' DUTIES. As between Company and any Issuing
Lender, Company assumes all risks of the acts and omissions of, or misuse of the
Letters of Credit issued by such Issuing Lender by, the respective beneficiaries
of such Letters of Credit. In furtherance and not in limitation of the
foregoing, such Issuing Lender shall not be responsible for: (i) the form,
validity, sufficiency, accuracy, genuineness or legal effect of any document
submitted by any party in connection with the application for and issuance of
any such Letter of Credit, even if it should in fact prove to be in any or all
respects invalid, insufficient, inaccurate, fraudulent or forged; (ii) the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign any such Letter of Credit or the rights or
benefits thereunder or proceeds thereof, in whole or in part, which may prove to
be invalid or ineffective for any reason; (iii) failure of the beneficiary of
any such Letter of Credit to comply fully with any conditions required in order
to draw upon such Letter of Credit; (iv) errors, omissions, interruptions or
delays in transmission or delivery of any messages, by mail, cable, telegraph,
telex or otherwise, whether or not they be in cipher; (v) errors in
interpretation of technical terms; (vi) any loss or delay in the transmission or
otherwise of any document required in order to make a drawing under any such
Letter of Credit or of the proceeds thereof; (vii) the misapplication by the
beneficiary of any such Letter of Credit of the proceeds of any drawing under
such Letter of Credit; or (viii) any consequences arising from causes beyond the
control of such Issuing Lender, including any Governmental Acts, and none of the
above shall affect or impair, or prevent the vesting of, any of such Issuing
Lender's rights or powers hereunder.
In furtherance and extension and not in limitation of the specific
provisions set forth in the first paragraph of this subsection 3.5B, any action
taken or omitted by any Issuing Lender under or in connection with the Letters
of Credit issued by it or any documents and certificates delivered thereunder,
if taken or omitted in good faith, shall not put such Issuing Lender under any
resulting liability to Company.
Notwithstanding anything to the contrary contained in this subsection
3.5, Company shall retain any and all rights it may have against any Issuing
Lender for any liability arising solely out of the gross negligence or willful
misconduct of such Issuing Lender, as determined by a final judgment of a court
of competent jurisdiction.
3.6 INCREASED COSTS AND TAXES RELATING TO LETTERS OF CREDIT.
Subject to the provisions of subsection 2.7B (which shall be
controlling with respect to the matters covered thereby), in the event that any
Issuing Lender or Lender shall determine (which determination shall, absent
manifest error, be final and conclusive and binding upon all parties hereto)
that any law, treaty or governmental rule, regulation or order, or any change
therein or in the interpretation, administration or application thereof
(including the introduction of any new law, treaty or governmental rule,
regulation or order), or any determination of a court or governmental authority,
in each case that becomes effective after the date hereof, or compliance by any
Issuing Lender or Lender with any guideline, request or directive issued or made
after the date hereof by any central bank or other governmental or
quasi-governmental authority (whether or not having the force of law):
(i) subjects such Issuing Lender or Lender (or its applicable lending
or letter of credit office) to any additional Tax (other than any Tax on
the overall net income of such Issuing Lender or Lender) with respect to
the issuing or maintaining of any Letters of Credit or the purchasing or
maintaining of any participations therein or any other obligations under
this Section 3, whether directly or by such being imposed on or suffered by
any particular Issuing Lender;
(ii) imposes, modifies or holds applicable any reserve (including any
marginal, emergency, supplemental, special or other reserve), special
deposit, compulsory loan, FDIC insurance or similar requirement in respect
of any Letters of Credit issued by any Issuing Lender or participations
therein purchased by any Lender; or
(iii) imposes any other condition (other than with respect to a Tax
matter) on or affecting such Issuing Lender or Lender (or its applicable
lending or letter of credit office) regarding this Section 3 or any Letter
of Credit or any participation therein;
and the result of any of the foregoing is to increase the cost to such Issuing
Lender or Lender of agreeing to issue, issuing or maintaining any Letter of
Credit or agreeing to purchase, purchasing or maintaining any participation
therein or to reduce any amount received or receivable by such Issuing Lender or
Lender (or its applicable lending or letter of credit office) with respect
thereto; then, in any case, Company shall promptly pay to such Issuing Lender or
Lender, upon receipt of the statement referred to in the next sentence, such
additional amount or amounts as may be necessary to compensate such Issuing
Lender or Lender for any such increased cost or reduction in amounts received or
receivable hereunder. Such Issuing Lender or Lender shall deliver to Company a
written statement, setting forth in reasonable detail the basis for calculating
the additional amounts owed to such Issuing Lender or Lender under this
subsection 3.6, which statement shall be conclusive and binding upon all parties
hereto absent manifest error.
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT
The obligations of Lenders to make Loans and the issuance of Letters
of Credit hereunder are subject to the satisfaction of the following conditions.
4.1 CONDITIONS TO TERM LOANS AND INITIAL REVOLVING LOANS AND
SWING LINE LOANS.
The obligations of Lenders to make the Term Loans and any Revolving
Loans and Swing Line Loans to be made on the Closing Date are, in addition to
the conditions precedent specified in subsection 4.2, subject to prior or
concurrent satisfaction of the following conditions:
A. LOAN PARTY DOCUMENTS. On or before the Closing Date, Company shall, and
shall cause each other Loan Party to, deliver to Lenders (or to Agents for
Lenders with sufficient originally executed copies, where appropriate, for each
Lender and its counsel) the following with respect to Company or such Loan
Party, as the case may be, each, unless otherwise noted, dated the Closing Date:
(i) Certified copies of the Certificate or Articles of Incorporation
of such Person, together with a good standing certificate from the
Secretary of State of its jurisdiction of incorporation and each other
state in which such Person is qualified as a foreign corporation to do
business and, to the extent generally available, a certificate or other
evidence of good standing as to payment of any applicable franchise or
similar taxes from the appropriate taxing authority of each of such
jurisdictions, each dated a recent date prior to the Closing Date;
(ii) Copies of the Bylaws of such Person,
certified as of the Closing Date by such Person's
corporate secretary or an assistant secretary;
(iii) Resolutions of the Board of Directors of such Person approving
and authorizing the execution, delivery and performance of the Loan
Documents to which it is a party, certified as of the Closing Date by the
corporate secretary or an assistant secretary of such Person as being in
full force and effect without modification or amendment;
(iv) Signature and incumbency certificates of
the officers of such Person executing the Loan Documents
to which it is a party;
(v) Executed originals of the Loan Documents to
which such Person is a party; and
(vi) Such other documents as Agents may
reasonably request.
B. NO MATERIAL ADVERSE EFFECT. Since December 25, 1995,
no Material Adverse Effect (in the sole opinion of Arranger
and Agents) shall have occurred.
C. ASSIGNMENT OF OBLIGATIONS UNDER EXISTING CREDIT AGREEMENT AND RELATED
LIENS; EXISTING LETTERS OF CREDIT. On the Closing Date, (i) all Indebtedness
outstanding and owing to Existing Lender under the Existing Credit Agreement
(the aggregate principal amount of which Indebtedness shall not exceed
$75,585,000) shall have been paid, (ii) any commitments of Existing Lender to
lend or make other extensions of credit thereunder shall have been terminated,
(iii) Holdings, Company and its Subsidiaries shall have delivered to
Administrative Agent all documents or instruments necessary to release (or
assign to Administrative Agent for benefit of Lenders) all Liens securing
Indebtedness or other obligations of Company and its Subsidiaries thereunder,
and (iv) Holdings, Company and its Subsidiaries shall have made arrangements
with respect to the cancellation of any letters of credit outstanding thereunder
or the issuance of Letters of Credit to support the obligations of Company and
its Subsidiaries with respect thereto, in each case on terms satisfactory to
Arranger, Agents and Lenders.
D. ASSIGNED MORTGAGES; MORTGAGE POLICIES; ETC. Subject
to the provisions of subsection 4.4, Administrative Agent
shall have received from Company and each applicable
Subsidiary Guarantor:
(i) Assigned Mortgages. Fully executed and notarized assignments of
the Assigned Mortgages in proper form for recording in all appropriate
places in all applicable jurisdictions, encumbering each Real Property
Asset listed in Schedule 4.1D annexed hereto (each a "CLOSING DATE
MORTGAGED PROPERTY" and, collectively, the "CLOSING DATE MORTGAGED
PROPERTIES");
(ii) Opinions of Local Counsel. An opinion of counsel (which counsel
shall be reasonably satisfactory to Agents) in each state in which a
Closing Date Mortgaged Property is located with respect to the
enforceability of the form(s) of assignments for the Assigned Mortgages to
be recorded in such state and such other matters as Agents may reasonably
request, in each case in form and substance reasonably satisfactory to
Agents dated as of the Closing Date and setting forth substantially the
matters in the opinion attached hereto as Exhibit XXV and as to such other
matters as Agents may reasonably require;
(iii) Title Insurance. As determined by Syndication Agent in its sole
discretion, (a) unconditional commitments for mortgagee title insurance
policies (the "CLOSING DATE MORTGAGE POLICIES") issued by the Title Company
with respect to the Closing Date Mortgaged Properties in amounts not less
than the respective amounts designated therein with respect to any
particular Closing Date Mortgaged Properties, insuring Administrative Agent
that the applicable Assigned Mortgages create valid and enforceable First
Priority mortgage Liens on the respective Closing Date Mortgaged Properties
encumbered thereby, subject only to a standard survey exception, and such
other exceptions approved by Agents, which Closing Date Mortgage Policies
(1) shall include a lenders aggregation endorsement, an endorsement for
future advances under this Agreement and for any other matters reasonably
requested by Agents and (2) shall provide for affirmative insurance and
such reinsurance as Agents may reasonably request, all of the foregoing in
form and substance reasonably satisfactory to Agents; and (b) evidence
satisfactory to Agents that such Loan Party has (i) delivered to the Title
Company all certificates and affidavits required by the Title Company in
connection with the issuance of the Closing Date Mortgage Policies and (ii)
paid to the Title Company or to the appropriate governmental authorities
all expenses and premiums of the Title Company in connection with the
issuance of the Closing Date Mortgage Policies and all recording and stamp
taxes (including mortgage recording and intangible taxes) payable in
connection with recording the Assigned Mortgages in the appropriate real
estate records;
(iv) Title Reports. With respect to each
Closing Date Mortgaged Property, a title report issued by
the Title Company with respect thereto, dated not more
than 30 days prior to the Closing Date and satisfactory
in form and substance to Agents;
(v) Copies of Documents Relating to Title
Exceptions. Copies of all recorded documents listed as
exceptions to title or otherwise referred to in the
Closing Date Mortgage Policies or in the title reports
delivered pursuant to subsection 4.1D(iv);
(vi) Matters Relating to Flood Hazard Properties. (a) Evidence, which
may be in the form of a letter from an insurance broker or a municipal
engineer, as to whether (1) any Closing Date Mortgaged Property is a Flood
Hazard Property and (2) the community in which any such Flood Hazard
Property is located is participating in the National Flood Insurance
Program, (b) if there are any such Flood Hazard Properties, such Loan
Party's written acknowledgement of receipt of written notification from
Administrative Agent (1) as to the existence of each such Flood Hazard
Property and (2) as to whether the community in which each such Flood
Hazard Property is located is participating in the National Flood Insurance
Program, and (c) in the event any such Flood Hazard Property is located in
a community that participates in the National Flood Insurance Program,
evidence that Company has obtained flood insurance in respect of such Flood
Hazard Property to the extent required under the applicable regulations of
the Board of Governors of the Federal Reserve System; and
(vii) Environmental Indemnity . If requested by Agents, an
environmental indemnity agreement, satisfactory in form and substance to
Agents and their counsel, with respect to the indemnification of Agents and
Lenders for any liabilities that may be imposed on or incurred by any of
them as a result of any Hazardous Materials Activity.
E. SECURITY INTERESTS IN PERSONAL AND MIXED PROPERTY. To the extent not
otherwise satisfied pursuant to subsection 4.1D, Agents shall have received
evidence satisfactory to each of them that Company and Subsidiary Guarantors
shall have taken or caused to be taken all such actions, executed and delivered
or caused to be executed and delivered all such agreements, documents and
instruments, and made or caused to be made all such filings and recordings
(other than the filing or recording of items described in clauses (iii), (iv)
and (v) below) that may be necessary or, in the opinion of Agents, desirable in
order to either assign the interest of Existing Lender or create in favor of
Administrative Agent, for the benefit of Lenders, a valid and (upon such filing
and recording) perfected First Priority security interest in the entire personal
and mixed property Collateral. Such actions shall include the following:
(i) Schedules to Collateral Documents. Delivery to
Agents of accurate and complete schedules to all of the
applicable Collateral Documents.
(ii) Stock Certificates and Instruments. Delivery to Administrative
Agent of (a) certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and otherwise
satisfactory in form and substance to Agents) representing all capital
stock pledged pursuant to the Company Pledge Agreement, the Subsidiary
Pledge Agreements and the Affiliated Stockholder Pledge Agreements and (b)
all promissory notes or other instruments (duly endorsed, where
appropriate, in a manner satisfactory to Agents) evidencing any Collateral;
(iii) Lien Searches and UCC Termination Statements. Subject to the
provisions of subsection 4.4, delivery to Agents of (a) the results of a
recent search, by a Person satisfactory to Agents, of all effective UCC
financing statements and fixture filings and all judgment and tax lien
filings which may have been made with respect to any personal or mixed
property of any Loan Party, together with copies of all such filings
disclosed by such search, and (b) UCC termination statements duly executed
by all applicable Persons for filing in all applicable jurisdictions as may
be necessary to terminate any effective UCC financing statements or fixture
filings disclosed in such search (other than any such financing statements
or fixture filings in respect of Liens permitted to remain outstanding
pursuant to the terms of this Agreement).
(iv) UCC Financing Statements and Fixture Filings. Subject to the
provisions of subsection 4.4, delivery to Administrative Agent of UCC
financing statements and, where appropriate, fixture filings, duly executed
by each applicable Loan Party with respect to all personal and mixed
property Collateral of such Loan Party, for filing in all jurisdictions as
may be necessary or, in the opinion of Agents, desirable to perfect the
security interests created in such Collateral pursuant to the Collateral
Documents;
(v) PTO Cover Sheets, Etc. Delivery to
Administrative Agent of all cover sheets or other
documents or instruments required to be filed with the
PTO in order to create or perfect Liens in respect of any
IP Collateral;
(vi) Certificates of Title, Etc. Subject to the provisions of
subsection 4.4, delivery to Administrative Agent of certificates of title
with respect to all motor vehicles and other rolling stock of Loan Parties
and the taking of all actions necessary to cause Administrative Agent to be
noted as lienholder thereon or otherwise necessary to perfect the First
Priority Lien granted to Administrative Agent on behalf of Lenders in such
rolling stock; and
(vii) Opinions of Local Counsel. Subject to the provisions of
subsection 4.4, delivery to Agents of an opinion of counsel (which counsel
shall be reasonably satisfactory to Agents) under the laws of each
jurisdiction in which any Loan Party or any personal or mixed property
Collateral is located with respect to the creation and perfection of the
security interests in favor of Administrative Agent in such Collateral and
such other matters governed by the laws of such jurisdiction regarding such
security interests as Agents may reasonably request, in each case in form
and substance reasonably satisfactory to Agents dated as of the Closing
Date and setting forth substantially the matters in the form of opinion
annexed hereto as Exhibit XXV and as to such other matters as Agents may
reasonably require.
F. EVIDENCE OF INSURANCE. Administrative Agent shall have received a
certificate from Company's insurance broker or other evidence satisfactory to it
that all insurance required to be maintained pursuant to subsection 6.4 is in
full force and effect and that Administrative Agent on behalf of Lenders has
been named as additional insured and/or loss payee thereunder to the extent
required under subsection 6.4.
G. OPINIONS OF COUNSEL TO LOAN PARTIES. Lenders and their respective
counsel shall have received (i) originally executed copies of one or more
favorable written opinions of Bryan Cave LLP, counsel for Loan Parties, in form
and substance reasonably satisfactory to Agents and their counsel, dated as of
the Closing Date and setting forth substantially the matters in the opinions
designated in Exhibit IX annexed hereto and as to such other matters as Agents
acting on behalf of Lenders may reasonably request and (ii) evidence
satisfactory to Agents that Company has requested such counsel to deliver such
opinions to Lenders.
H. OPINIONS OF SYNDICATION AGENT'S COUNSEL. Lenders shall have received
originally executed copies of one or more favorable written opinions of
O'Melveny & Myers LLP, counsel to Syndication Agent, dated as of the Closing
Date, substantially in the form of Exhibit X annexed hereto and as to such other
matters as Syndication Agent acting on behalf of Lenders may reasonably request.
I. FEES. Company shall have paid to Administrative
Agent and Arranger the fees payable on the Closing Date
referred to in subsection 2.3.
J. SOLVENCY OPINION. Company shall have delivered to
Arranger and Agents a solvency opinion dated the Closing Date
from an nationally recognized valuation firm satisfactory to
Arranger and Syndication Agent.
K. SOLVENCY CERTIFICATE. Company shall have delivered
to Arranger and Agents a Solvency Certificate dated the
Closing Date.
L. REPRESENTATIONS AND WARRANTIES; PERFORMANCE OF AGREEMENTS. Company shall
have delivered to Agents an Officer's Certificate, in form and substance
satisfactory to Agents, to the effect that the representations and warranties in
Section 5 hereof are true, correct and complete in all material respects on and
as of the Closing Date to the same extent as though made on and as of that date
(or, to the extent such representations and warranties specifically relate to an
earlier date, that such representations and warranties were true, correct and
complete in all material respects on and as of such earlier date) and that
Company shall have performed in all material respects all agreements and
satisfied all conditions which this Agreement provides shall be performed or
satisfied by it on or before the Closing Date except as otherwise disclosed to
and agreed to in writing by Agents and Requisite Lenders.
M. NECESSARY GOVERNMENTAL AUTHORIZATIONS AND CONSENTS; EXPIRATION OF
WAITING PERIODS, ETC. Company shall have obtained all Governmental
Authorizations and all consents of other Persons, in each case that are
necessary or advisable in connection with the Refinancing and each of the
foregoing shall be in full force and effect, in each case other than those the
failure to obtain or maintain which, either individually or in the aggregate,
would not reasonably be expected to have a Material Adverse Effect. All
applicable waiting periods shall have expired without any action being taken or
threatened by any competent authority which would restrain, prevent or otherwise
impose adverse conditions on the Refinancing. No action, request for stay,
petition for review or rehearing, reconsideration, or appeal with respect to any
of the foregoing shall be pending, and the time for any applicable agency to
take action to set aside its consent on its own motion shall have expired.
N. DUE DILIGENCE. The results of the continuing financial, legal, tax and
accounting due diligence investigations with respect to Company and its
Subsidiaries shall be satisfactory in all respects to Arranger, Agents and
Lenders, and any supplemental business or financial due diligence that Arranger
or Syndication Agent reasonably determines has become necessary shall not have
disclosed information not previously disclosed to Arranger or Syndication Agent
which causes the results of such investigations not to be satisfactory to
Arranger, Agents and Lenders in all respects. Arranger, Agents and Lenders shall
have received any information reasonably necessary to conduct their continuing
due diligence.
O. FINANCIAL STATEMENTS. The Lenders shall have received (ii) unaudited
financial statements of Holdings and its Subsidiaries for the Fiscal Quarter
most recently ended prior to the Closing Date and (ii) unaudited financial
statements of Holdings and its subsidiaries for the Fiscal Year ended December
30, 1996. Any of Arranger, Agents, and Lenders shall have had the opportunity,
at their option, to review any such unaudited financial statements with
Holdings' independent public accountants, at Company's cost.
P. COMPLETION OF PROCEEDINGS. All corporate and other proceedings taken or
to be taken in connection with the transactions contemplated hereby and all
documents incidental thereto not previously found acceptable by each Agent,
acting on behalf of Lenders, and its counsel shall be satisfactory in form and
substance to Agents and such counsel, and Agents and such counsel shall have
received all such counterpart originals or certified copies of such documents as
Agents may reasonably request.
4.2 CONDITIONS TO ALL LOANS.
The obligations of Lenders to make Loans on each Funding Date are
subject to the following further conditions precedent:
A. Administrative Agent shall have received before that Funding Date,
in accordance with the provisions of subsection 2.1B, an originally executed
Notice of Borrowing, in each case signed by the chief executive officer, the
chief financial officer or the treasurer of Company or by any executive officer
of Company designated by any of the above-described officers on behalf of
Company in a writing delivered to Administrative Agent.
B. As of that Funding Date:
(i) The representations and warranties contained herein and in the
other Loan Documents shall be true, correct and complete in all material
respects on and as of that Funding Date to the same extent as though made
on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case such
representations and warranties shall have been true, correct and complete
in all material respects on and as of such earlier date;
(ii) No event shall have occurred and be continuing or would result
from the consummation of the borrowing contemplated by such Notice of
Borrowing that would constitute an Event of Default or a Potential Event of
Default;
(iii) Each Loan Party shall have performed in all material respects
all agreements and satisfied all conditions which this Agreement provides
shall be performed or satisfied by it on or before that Funding Date;
(iv) No order, judgment or decree of any court, arbitrator or
governmental authority shall purport to enjoin or restrain any Lender from
making the Loans to be made by it on that Funding Date;
(v) The making of the Loans requested on such Funding Date shall not
violate any law including Regulation G, Regulation T, Regulation U or
Regulation X of the Board of Governors of the Federal Reserve System; and
(vi) There shall not be pending or, to the knowledge of Company,
threatened, any action, suit, proceeding, governmental investigation or
arbitration against or affecting Company or any of its Subsidiaries or any
property of Company or any of its Subsidiaries that has not been disclosed
by Company in writing pursuant to subsection 5.6 or 6.1(x) prior to the
making of the last preceding Loans (or, in the case of the initial Loans,
prior to the execution of this Agreement), and there shall have occurred no
development not so disclosed in any such action, suit, proceeding,
governmental investigation or arbitration so disclosed, that, in either
event, in the opinion of Agents or of Requisite Lenders, would be expected
to have a Material Adverse Effect.
4.3 CONDITIONS TO LETTERS OF CREDIT.
The issuance of any Letter of Credit hereunder (whether or not the
applicable Issuing Lender is obligated to issue such Letter of Credit) is
subject to the following conditions precedent:
A. On or before the date of issuance of the initial
Letter of Credit pursuant to this Agreement, the initial Loans
shall have been made.
B. On or before the date of issuance of such Letter of Credit,
Administrative Agent shall have received, in accordance with the provisions of
subsection 3.1B(i), an originally executed Notice of Issuance of Letter of
Credit, in each case signed by the chief executive officer, the chief financial
officer or the treasurer of Company or by any executive officer of Company
designated by any of the above-described officers on behalf of Company in a
writing delivered to Administrative Agent, together with all other information
specified in subsection 3.1B(i) and such other documents or information as the
applicable Issuing Lender may reasonably require in connection with the issuance
of such Letter of Credit.
C. On the date of issuance of such Letter of Credit, all conditions
precedent described in subsection 4.2B shall be satisfied to the same extent as
if the issuance of such Letter of Credit were the making of a Loan and the date
of issuance of such Letter of Credit were a Funding Date.
4.4 ITEMS TO BE DELIVERED AFTER THE CLOSING DATE.
Company, Agents and Lenders recognize that it may be impractical for
the Company to deliver certain of the items listed in subsection 4.1D,
subsection 4.1E(iii), subsection 4.1E(iv), subsection 4.1E(vi) and subsection
4.1E(viii) on the Closing Date. Company, Agents and Lenders agree, to the extent
that any of such items are not so delivered on the Closing Date with the consent
of Syndication Agent, Company shall deliver such items within 30 days of the
Closing Date.
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders and the Agents to enter into this Agreement
and to make the Loans, to induce Issuing Lenders to issue Letters of Credit and
to induce other Lenders to purchase participations therein, Company represents
and warrants to each Lender and the Agents, on the date of this Agreement, on
each Funding Date and on the date of issuance of each Letter of Credit, that the
following statements are true, correct and complete:
5.1 ORGANIZATION, POWERS, QUALIFICATION, GOOD STANDING,
BUSINESS AND SUBSIDIARIES.
A. ORGANIZATION AND POWERS. Each Loan Party is a corporation duly
organized, validly existing and in good standing under the laws of its
jurisdiction of incorporation as specified in Schedule 5.1 annexed hereto. Each
Loan Party has all requisite corporate power and authority to own and operate
its properties, to carry on its business as now conducted and as proposed to be
conducted, to enter into the Loan Documents to which it is a party and to carry
out the transactions contemplated thereby.
B. QUALIFICATION AND GOOD STANDING. Each Loan Party is qualified to do
business and in good standing in every jurisdiction where its assets are located
and wherever necessary to carry out its business and operations, except in
jurisdictions where the failure to be so qualified or in good standing has not
had and will not have a Material Adverse Effect.
C. CONDUCT OF BUSINESS. Company and its Subsidiaries
are engaged only in the businesses permitted to be engaged in
pursuant to subsection 7.14.
D. SUBSIDIARIES. All of the Subsidiaries of Company are identified in
Schedule 5.1 annexed hereto, as said Schedule 5.1 may be supplemented from time
to time pursuant to the provisions of subsection 6.1(xvi). The capital stock of
each of the Subsidiaries of Company identified in Schedule 5.1 annexed hereto
(as so supplemented) is duly authorized, validly issued, fully paid and
nonassessable and none of such capital stock constitutes Margin Stock. Each of
the Subsidiaries of Company identified in Schedule 5.1 annexed hereto (as so
supplemented) is a corporation duly organized, validly existing and in good
standing under the laws of its respective jurisdiction of incorporation set
forth therein, has all requisite corporate power and authority to own and
operate its properties and to carry on its business as now conducted and as
proposed to be conducted, and is qualified to do business and in good standing
in every jurisdiction where its assets are located and wherever necessary to
carry out its business and operations, in each case except where failure to be
so qualified or in good standing or a lack of such corporate power and authority
has not had and will not have a Material Adverse Effect. Schedule 5.1 annexed
hereto (as so supplemented) correctly sets forth the ownership interest of
Company and each of its Subsidiaries in each of the Subsidiaries of Company
identified therein.
5.2 AUTHORIZATION OF BORROWING, ETC.
A. AUTHORIZATION OF BORROWING. The execution, delivery
and performance of the Loan Documents have been duly author-
ized by all necessary corporate action on the part of each
Loan Party that is a party thereto.
B. NO CONFLICT. The execution, delivery and performance by Loan Parties of
the Loan Documents and the consummation of the transactions contemplated by the
Loan Documents do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Company or any of its
Subsidiaries, the Certificate or Articles of Incorporation or Bylaws of Company
or any of its Subsidiaries or any order, judgment or decree of any court or
other agency of government binding on Company or any of its Subsidiaries, (ii)
conflict with, result in a breach of or constitute (with due notice or lapse of
time or both) a default under any Contractual Obligation of Company or any of
its Subsidiaries, (iii) result in or require the creation or imposition of any
Lien upon any of the properties or assets of Company or any of its Subsidiaries
(other than any Liens created under any of the Loan Documents in favor of
Administrative Agent on behalf of Lenders), or (iv) require any approval of
stockholders or any approval or consent of any Person under any Contractual
Obligation of Company or any of its Subsidiaries, except for such approvals or
consents which will be obtained on or before the Closing Date and disclosed in
writing to Lenders.
C. GOVERNMENTAL CONSENTS. The execution, delivery and performance by Loan
Parties of the Loan Documents and the consummation of the transactions
contemplated by the Loan Documents do not and will not require any registration
with, consent or approval of, or notice to, or other action to, with or by, any
federal, state or other governmental authority or regulatory body.
D. BINDING OBLIGATION. Each of the Loan Documents has been duly executed
and delivered by each Loan Party that is a party thereto and is the legally
valid and binding obligation of such Loan Party, enforceable against such Loan
Party in accordance with its respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
5.3 FINANCIAL CONDITION.
Company has heretofore delivered to Lenders, at Lenders' request, the
following financial statements and information: (i) the unaudited consolidated
balance sheet of Holdings and its Subsidiaries as at December 30, 1996 and the
related consolidated statements of income, stockholders' equity and cash flows
of Holdings and its Subsidiaries for the Fiscal Year then ended and (ii) the
unaudited consolidated balance sheet of Holdings and its Subsidiaries as at
March 31, 1997 and the related unaudited consolidated statements of income,
stockholders' equity and cash flows of Holdings and its Subsidiaries for the
three months then ended. All such statements were prepared in conformity with
GAAP and fairly present, in all material respects, the financial position (on a
consolidated basis) of the entities described in such financial statements as at
the respective dates thereof and the results of operations and cash flows (on a
consolidated basis) of the entities described therein for each of the periods
then ended, subject, in the case of any such unaudited financial statements, to
changes resulting from normal year-end adjustments. Company does not (and will
not following the funding of the initial Loans) have any Contingent Obligation,
contingent liability or liability for taxes, long-term lease or unusual forward
or long-term commitment that is not reflected in the foregoing financial
statements or the notes thereto and which in any such case is material in
relation to the business, operations, properties, assets, condition (financial
or otherwise) or prospects of Company or any of its Subsidiaries.
5.4 NO MATERIAL ADVERSE CHANGE; NO RESTRICTED JUNIOR
PAYMENTS.
Since December 25, 1995, no event or change has occurred that has
caused or evidences, either in any case or in the aggregate, a Material Adverse
Effect. Neither Company nor any of its Subsidiaries has directly or indirectly
declared, ordered, paid or made, or set apart any sum or property for, any
Restricted Junior Payment or agreed to do so except as permitted by subsection
7.5.
5.5 TITLE TO PROPERTIES; LIENS; REAL PROPERTY.
A. TITLE TO PROPERTIES; LIENS. Company and its Subsidiaries have (i)
good, sufficient and legal title to (in the case of fee interests in real
property), (ii) valid leasehold interests in (in the case of leasehold interests
in real or personal property), or (iii) good title to (in the case of all other
personal property), all of their respective properties and assets reflected in
the financial statements referred to in subsection 5.3 or in the most recent
financial statements delivered pursuant to subsection 6.1, in each case except
for assets disposed of since the date of such financial statements in the
ordinary course of business or as otherwise permitted under subsection 7.7.
Except as permitted by this Agreement, all such properties and assets are free
and clear of Liens.
B. REAL PROPERTY. As of the Closing Date, Schedule 5.5 annexed hereto
contains a true, accurate and complete list of (i) all real property owned by
Company or any Subsidiary and (ii) all leases, subleases or assignments of
leases (together with all amendments, modifications, supplements, renewals or
extensions of any thereof) affecting each Real Property Asset of any Loan Party,
regardless of whether such Loan Party is the landlord or tenant (whether
directly or as an assignee or successor in interest) under such lease, sublease
or assignment. Except as specified in Schedule 5.5 annexed hereto, each
agreement listed in clause (ii) of the immediately preceding sentence is in full
force and effect and Company does not have knowledge of any default that has
occurred and is continuing thereunder, and each such agreement constitutes the
legally valid and binding obligation of each applicable Loan Party, enforceable
against such Loan Party in accordance with its terms, except as enforcement may
be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
relating to or limiting creditors' rights generally or by equitable principles.
5.6 LITIGATION; ADVERSE FACTS.
Except as set forth in Schedule 5.6 annexed hereto, there are no
actions, suits, proceedings, arbitrations or governmental investigations
(whether or not purportedly on behalf of Company or any of its Subsidiaries) at
law or in equity, or before or by any federal, state, municipal or other
governmental department, commission, board, bureau, agency or instrumentality,
domestic or foreign (including any Environmental Claims) that are pending or, to
the knowledge of Company, threatened against or affecting Company or any of its
Subsidiaries or any property of Company or any of its Subsidiaries and that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect. Neither Company nor any of its Subsidiaries (i) is in
violation of any applicable laws (including Environmental Laws) that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect, or (ii) is subject to or in default with respect to any
final judgments, writs, injunctions, decrees, rules or regulations of any court
or any federal, state, municipal or other governmental department, commission,
board, bureau, agency or instrumentality, domestic or foreign, that,
individually or in the aggregate, could reasonably be expected to result in a
Material Adverse Effect.
5.7 PAYMENT OF TAXES.
Except to the extent permitted by subsection 6.3, all tax returns and
reports of Company and its Subsidiaries required to be filed by any of them have
been timely filed, and all taxes shown on such tax returns to be due and payable
and all assessments, fees and other governmental charges upon Company and its
Subsidiaries and upon their respective properties, assets, income, businesses
and franchises which are due and payable have been paid when due and payable.
Company knows of no proposed tax assessment against Company or any of its
Subsidiaries which is not being actively contested by Company or such Subsidiary
in good faith and by appropriate proceedings; provided that such reserves or
other appropriate provisions, if any, as shall be required in conformity with
GAAP shall have been made or provided therefor.
5.8 PERFORMANCE OF AGREEMENTS; MATERIALLY ADVERSE AGREEMENTS;
MATERIAL CONTRACTS.
A. Neither Company nor any of its Subsidiaries is in default in the
performance, observance or fulfillment of any of the obligations, covenants or
conditions contained in any of its Contractual Obligations, and no condition
exists that, with the giving of notice or the lapse of time or both, would
constitute such a default, except where the consequences, direct or indirect, of
such default or defaults, if any, would not have a Material Adverse Effect.
B. Neither Company nor any of its Subsidiaries is a party to or is
otherwise subject to any agreements or instruments or any charter or other
internal restrictions which, individually or in the aggregate, could reasonably
be expected to result in a Material Adverse Effect.
C. Schedule 5.8 contains a true, correct and complete list of all the
Material Contracts in effect on the Closing Date. Except as described on
Schedule 5.8, all such Material Contracts are in full force and effect and no
material defaults currently exist thereunder.
5.9 GOVERNMENTAL REGULATION.
Neither Company nor any of its Subsidiaries is subject to regulation
under the Public Utility Holding Company Act of 1935, the Federal Power Act, the
Interstate Commerce Act or the Investment Company Act of 1940 or under any other
federal or state statute or regulation which may limit its ability to incur
Indebtedness or which may otherwise render all or any portion of the Obligations
unenforceable.
5.10 SECURITIES ACTIVITIES.
A. Neither Company nor any of its Subsidiaries is
engaged principally, or as one of its important activities, in
the business of extending credit for the purpose of purchasing
or carrying any Margin Stock.
B. Following application of the proceeds of each Loan, not more than
25% of the value of the assets (either of Company only or of Company and its
Subsidiaries on a consolidated basis) subject to the provisions of subsection
7.2 or 7.7 or subject to any restriction contained in any agreement or
instrument, between Company and any Lender or any Affiliate of any Lender,
relating to Indebtedness and within the scope of subsection 8.2, will be Margin
Stock.
5.11 EMPLOYEE BENEFIT PLANS.
A. Company, each of its Subsidiaries and each of their respective
ERISA Affiliates are in compliance with all applicable provisions and
requirements of ERISA and the regulations and published interpretations
thereunder with respect to each Employee Benefit Plan, and have performed all
their obligations under each Employee Benefit Plan. Each Employee Benefit Plan
which is intended to qualify under Section 401(a) of the Internal Revenue Code
is so qualified.
B. No ERISA Event has occurred or is reasonably
expected to occur.
C. Except to the extent required under Section 4980B of the Internal
Revenue Code [or except as set forth in Schedule 5.11 annexed hereto], no
Employee Benefit Plan provides health or welfare benefits (through the purchase
of insurance or otherwise) for any retired or former employee of Company, any of
its Subsidiaries or any of their respective ERISA Affiliates.
D. As of the most recent valuation date for any Pension Plan, the
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), does not exceed $500,000.
E. As of the most recent valuation date for each Multiemployer Plan
for which the actuarial report is available, the potential liability of Company,
its Subsidiaries and their respective ERISA Affiliates for a complete withdrawal
from such Multiemployer Plan (within the meaning of Section 4203 of ERISA), when
aggregated with such potential liability for a complete withdrawal from all
Multiemployer Plans, based on information available pursuant to Section 4221(e)
of ERISA, does not exceed $500,000.
5.12 CERTAIN FEES.
No broker's or finder's fee or commission will be payable with respect
to this Agreement or any of the transactions contemplated hereby, and Company
hereby indemnifies Lenders against, and agrees that it will hold Lenders
harmless from, any claim, demand or liability for any such broker's or finder's
fees alleged to have been incurred in connection herewith or therewith and any
expenses (including reasonable fees, expenses and disbursements of counsel)
arising in connection with any such claim, demand or liability.
5.13 ENVIRONMENTAL PROTECTION.
Except as set forth in Schedule 5.13 annexed hereto:
(i) neither Company nor any of its Subsidiaries nor any of their
respective Facilities or operations are subject to any outstanding written
order, consent decree or settlement agreement with any Person relating to
(a) any Environmental Law, (b) any Environmental Claim, or (c) any
Hazardous Materials Activity;
(ii) neither Company nor any of its Subsidiaries
has received any letter or request for information under
Section 104 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. Section 9604)
or any comparable state law;
(iii) there are and, to Company's knowledge, have been no conditions,
occurrences, or Hazardous Materials Activities which could reasonably be
expected to form the basis of an Environmental Claim against Company or any
of its Subsidiaries;
(iv) neither Company nor any of its Subsidiaries nor, to Company's
knowledge, any predecessor of Company or any of its Subsidiaries has filed
any notice under any Environmental Law indicating past or present treatment
of Hazardous Materials at any Facility, and none of Company's or any of its
Subsidiaries' operations involves the generation, transportation,
treatment, storage or disposal of hazardous waste, as defined under 40
C.F.R. Parts 260-270 or any state equivalent; and
(v) compliance with all current or reasonably foreseeable future
requirements pursuant to or under Environmental Laws will not, individually
or in the aggregate, have a reasonable possibility of giving rise to a
Material Adverse Effect.
Notwithstanding anything in this subsection 5.13 to the contrary, no
event or condition has occurred or is occurring with respect to Company or any
of its Subsidiaries relating to any Environmental Law, any Release of Hazardous
Materials, or any Hazardous Materials Activity, including any matter disclosed
on Schedule 5.13 annexed hereto, which individually or in the aggregate has had
or could reasonably be expected to have a Material Adverse Effect.
EMPLOYEE MATTERS.
There is no strike or work stoppage in existence or threatened
involving Company or any of its Subsidiaries that could reasonably be expected
to have a Material Adverse Effect.
5.15 SOLVENCY.
Each Loan Party is and, upon the incurrence of any Obligations by such
Loan Party on any date on which this representation is made, will be, Solvent.
5.16 MATTERS RELATING TO COLLATERAL.
A. CREATION, PERFECTION AND PRIORITY OF LIENS. The execution and delivery
of the Collateral Documents by Loan Parties, together with (i) the actions taken
on or prior to the date hereof pursuant to subsections 4.1D, 4.1E, 6.8 and 6.9
and (ii) the delivery to Administrative Agent of any Pledged Collateral not
delivered to Administrative Agent at the time of execution and delivery of the
applicable Collateral Document (all of which Pledged Collateral has been so
delivered) are effective to create in favor of Administrative Agent for the
benefit of Lenders, as security for the respective Secured Obligations (as
defined in the applicable Collateral Document in respect of any Collateral), a
valid and perfected First Priority Lien on all of the Collateral, and all
filings and other actions necessary or desirable to perfect and maintain the
perfection and First Priority status of such Liens have been duly made or taken
and remain in full force and effect, other than the filing of any UCC financing
statements delivered to Administrative Agent for filing (but not yet filed) and
the periodic filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Administrative Agent.
B. GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or other action
by, and no notice to or filing with, any governmental authority or regulatory
body is required for either (i) the pledge or grant by any Loan Party of the
Liens purported to be created in favor of Administrative Agent pursuant to any
of the Collateral Documents or (ii) the exercise by Administrative Agent of any
rights or remedies in respect of any Collateral (whether specifically granted or
created pursuant to any of the Collateral Documents or created or provided for
by applicable law), except for filings or recordings contemplated by subsection
5.16A and except as may be required, in connection with the disposition of any
Pledged Collateral, by laws generally affecting the offering and sale of
securities.
C. ABSENCE OF THIRD-PARTY FILINGS. Except such as may have been filed in
favor of Administrative Agent as contemplated by subsection 5.16A, (i) no
effective UCC financing statement, fixture filing or other instrument similar in
effect covering all or any part of the Collateral is on file in any filing or
recording office and (ii) no effective filing covering all or any part of the IP
Collateral is on file in the PTO.
D. MARGIN REGULATIONS. The pledge of the Pledged
Collateral pursuant to the Collateral Documents does not
violate Regulation G, T, U or X of the Board of Governors of
the Federal Reserve System.
E. INFORMATION REGARDING COLLATERAL. All information supplied to Agents by
or on behalf of any Loan Party with respect to any of the Collateral (in each
case taken as a whole with respect to any particular Collateral) is accurate and
complete in all material respects. In furtherance of the foregoing, Holdings
owns no assets except for all the capital stock of Company; all IP Collateral is
owned by Company; and no IP Collateral is owned by Holdings or any Subsidiary.
5.17 DISCLOSURE.
No representation or warranty of Company or any of its Subsidiaries
contained in any Loan Document or in any other document, certificate or written
statement furnished to Lenders by or on behalf of Company or any of its
Subsidiaries for use in connection with the transactions contemplated by this
Agreement contains any untrue statement of a material fact or omits to state a
material fact (known to Company, in the case of any document not furnished by
it) necessary in order to make the statements contained herein or therein not
misleading in light of the circumstances in which the same were made. Any
projections and pro forma financial information contained in such materials are
based upon good faith estimates and assumptions believed by Company to be
reasonable at the time made, it being recognized by Lenders that such
projections as to future events are not to be viewed as facts and that actual
results during the period or periods covered by any such projections may differ
from the projected results. There are no facts known (or which should upon the
reasonable exercise of diligence be known) to Company (other than matters of a
general economic nature) that, individually or in the aggregate, could
reasonably be expected to result in a Material Adverse Effect and that have not
been disclosed herein or in such other documents, certificates and statements
furnished to Lenders for use in connection with the transactions contemplated
hereby.
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 6.
6.1 FINANCIAL STATEMENTS AND OTHER REPORTS.
Company will maintain, and cause each of its Subsidiaries to maintain,
a system of accounting established and administered in accordance with sound
business practices to permit preparation of financial statements in conformity
with GAAP. Company will deliver to Agents and Lenders:
(i) Monthly Financials: as soon as available and in any event within
30 days after the end of each month ending after the Closing Date, (a) the
consolidated balance sheet of Company and its Subsidiaries as at the end of
such month and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such month and
for the period from the beginning of the then current Fiscal Year to the
end of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding periods of the previous Fiscal
Year, to the extent prepared on a monthly basis, all in reasonable detail
and certified by the chief financial officer, chief accounting officer or
controller of Company that they fairly present, in all material respects,
the financial condition of Company and its Subsidiaries as at the dates
indicated and the results of their operations and their cash flows for the
periods indicated, subject to changes resulting from audit and normal
year-end adjustments, (b) a narrative report describing the operations of
Company and its Subsidiaries in the form prepared for presentation to
senior management for such month and for the period from the beginning of
the then current Fiscal Year to the end of such month and (c) reports by
restaurant concept, showing sales, comparative restaurant sales growth,
gross profit and operating contribution, all in form and substance
satisfactory to Agents, for such month;
(ii) Quarterly Financials: as soon as available and in any event
within 45 days after the end of each Fiscal Quarter, (a) the consolidated
balance sheet of Company and its Subsidiaries as at the end of such Fiscal
Quarter and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal
Quarter and for the period from the beginning of the then current Fiscal
Year to the end of such Fiscal Quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding periods of
the previous Fiscal Year and the corresponding figures from the Financial
Plan for the current Fiscal Year, all in reasonable detail and certified by
the chief financial officer of Company that they fairly present, in all
material respects, the financial condition of Company and its Subsidiaries
as at the dates indicated and the results of their operations and their
cash flows for the periods indicated, subject to changes resulting from
audit and normal year-end adjustments, (b) a narrative report describing
the operations of Company and its Subsidiaries in the form prepared for
presentation to senior management for such Fiscal Quarter and for the
period from the beginning of the then current Fiscal Year to the end of
such Fiscal Quarter and (c) reports by restaurant concept, showing sales,
comparative restaurant sales growth, gross profit and operating
contribution, all in form and substance satisfactory to Agents, for such
Fiscal Quarter;
(iii) Year-End Financials: as soon as available and in any event
within 90 days after the end of each Fiscal Year, (a) the consolidated
balance sheet of Company and its Subsidiaries as at the end of such Fiscal
Year and the related consolidated statements of income, stockholders'
equity and cash flows of Company and its Subsidiaries for such Fiscal Year,
setting forth in each case in comparative form the corresponding figures
for the previous Fiscal Year and the corresponding figures from the
Financial Plan for the Fiscal Year covered by such financial statements,
all in reasonable detail and certified by the chief financial officer,
chief accounting officer or controller of Company that they fairly present,
in all material respects, the financial condition of Company and its
Subsidiaries as at the dates indicated and the results of their operations
and their cash flows for the periods indicated, (b) a narrative report
describing the operations of Company and its Subsidiaries in the form
prepared for presentation to senior management for such Fiscal Year, (c) in
the case of such consolidated financial statements, a report thereon of
Deloitte & Touche or other independent certified public accountants of
recognized national standing selected by Company and satisfactory to
Agents, which report shall be unqualified, shall express no doubts about
the ability of Company and its Subsidiaries to continue as a going concern,
and shall state that such consolidated financial statements fairly present,
in all material respects, the consolidated financial position of Company
and its Subsidiaries as at the dates indicated and the results of their
operations and their cash flows for the periods indicated in conformity
with GAAP applied on a basis consistent with prior years (except as
otherwise disclosed in such financial statements) and that the examination
by such accountants in connection with such consolidated financial
statements has been made in accordance with generally accepted auditing
standards and (d) reports by restaurant concept, showing sales, comparative
restaurant sales growth, gross profit and operating contribution, all in
form and substance satisfactory to Agents, for such Fiscal Year;
(iv) Officer's and Compliance Certificates: together with each
delivery of financial statements of Company and its Subsidiaries pursuant
to subdivisions (i), (ii) and (iii) above, (a) an Officer's Certificate of
Company stating that the signers have reviewed the terms of this Agreement
and have made, or caused to be made under their supervision, a review in
reasonable detail of the transactions and condition of Company and its
Subsidiaries during the accounting period covered by such financial
statements and that such review has not disclosed the existence during or
at the end of such accounting period, and that the signers do not have
knowledge of the existence as at the date of such Officer's Certificate, of
any condition or event that constitutes an Event of Default or Potential
Event of Default, or, if any such condition or event existed or exists,
specifying the nature and period of existence thereof and what action
Company has taken, is taking and proposes to take with respect thereto; and
(b) a Compliance Certificate demonstrating in reasonable detail compliance
during and at the end of the applicable accounting periods with the
restrictions contained in Section 7, in each case to the extent compliance
with such restrictions is required to be tested at the end of the
applicable accounting period;
(v) Reconciliation Statements: if, as a result of any change in
accounting principles and policies from those used in the preparation of
the audited financial statements referred to in subsection 5.3, the
consolidated financial statements of Company and its Subsidiaries delivered
pursuant to subdivisions (i), (ii), (iii) or (xiii) of this subsection 6.1
will differ in any material respect from the consolidated financial
statements that would have been delivered pursuant to such subdivisions had
no such change in accounting principles and policies been made, then (a)
together with the first delivery of financial statements pursuant to
subdivision (i), (ii), (iii) or (xiii) of this subsection 6.1 following
such change, consolidated financial statements of Company and its
Subsidiaries for (y) the current Fiscal Year to the effective date of such
change and (z) the two full Fiscal Years immediately preceding the Fiscal
Year in which such change is made, in each case prepared on a pro forma
basis as if such change had been in effect during such periods, and (b)
together with each delivery of financial statements pursuant to subdivision
(i), (ii), (iii) or (xiii) of this subsection 6.1 following such change, a
written statement of the chief accounting officer or chief financial
officer of Company setting forth the differences (including any differences
that would affect any calculations relating to the financial covenants set
forth in subsection 7.6) which would have resulted if such financial
statements had been prepared without giving effect to such change;
(vi) Accountants' Certification: together with each delivery of
consolidated financial statements of Company and its Subsidiaries pursuant
to subdivision (iii) above, a written statement by the independent
certified public accountants giving the report thereon (a) stating that
their audit examination has included a review of the terms of Section 7 of
this Agreement as they relate to accounting matters, (b) stating whether,
in connection with their audit examination, any condition or event that
constitutes an Event of Default or Potential Event of Default has come to
their attention and, if such a condition or event has come to their
attention, specifying the nature and period of existence thereof; provided
that such accountants shall not be liable by reason of any failure to
obtain knowledge of any such Event of Default or Potential Event of Default
that would not be disclosed in the course of their audit examination, and
(c) stating that based on their audit examination nothing has come to their
attention that causes them to believe either or both that the information
contained in the certificates delivered therewith pursuant to subdivision
(iv) above is not correct or that the matters set forth in the Compliance
Certificates delivered therewith pursuant to clause (b) of subdivision (iv)
above for the applicable Fiscal Year are not stated in accordance with the
terms of this Agreement;
(vii) Accountants' Reports: promptly upon receipt thereof (unless
restricted by applicable professional standards), copies of all reports
submitted to Company by independent certified public accountants in
connection with each annual, interim or special audit of the financial
statements of Company and its Subsidiaries made by such accountants,
including any comment letter submitted by such accountants to management in
connection with their annual audit;
(viii) SEC Filings and Press Releases: promptly upon their becoming
available, copies of (a) all financial statements, reports, notices and
proxy statements sent or made available generally by Company to its
security holders or by any Subsidiary of Company to its security holders
other than Company or another Subsidiary of Company, (b) all regular and
periodic reports and all registration statements (other than on Form S-8 or
a similar form) and prospectuses, if any, filed by Company or any of its
Subsidiaries with any securities exchange or with the Securities and
Exchange Commission or any governmental or private regulatory authority,
and (c) all press releases and other statements made available generally by
Company or any of its Subsidiaries to the public concerning material
developments in the business of Company or any of its Subsidiaries;
(ix) Events of Default, etc.: promptly upon any officer of Company
obtaining knowledge (a) of any condition or event that constitutes an Event
of Default or Potential Event of Default, or becoming aware that any Lender
has given any notice (other than to Administrative Agent) or taken any
other action with respect to a claimed Event of Default or Potential Event
of Default, (b) that any Person has given any notice to Company or any of
its Subsidiaries or taken any other action with respect to a claimed
default or event or condition of the type referred to in subsection 8.2,
(c) of any condition or event that would be required to be disclosed in a
current report filed by Company with the Securities and Exchange Commission
on Form 8-K (Items 1, 2, 4, 5 and 6 of such Form as in effect on the date
hereof) if Company were required to file such reports under the Exchange
Act, or (d) of the occurrence of any event or change that has caused or
evidences, either in any case or in the aggregate, a Material Adverse
Effect, an Officer's Certificate specifying the nature and period of
existence of such condition, event or change, or specifying the notice
given or action taken by any such Person and the nature of such claimed
Event of Default, Potential Event of Default, default, event or condition,
and what action Company has taken, is taking and proposes to take with
respect thereto;
(x) Litigation or Other Proceedings: (a) promptly upon any officer of
Company obtaining knowledge of (X) the institution of, or non-frivolous
threat of, any action, suit, proceeding (whether administrative, judicial
or otherwise), governmental investigation or arbitration against or
affecting Company or any of its Subsidiaries or any property of Company or
any of its Subsidiaries (collectively, "PROCEEDINGS") not previously
disclosed in writing by Company to Lenders or (Y) any material development
in any Proceeding that, in any case:
(1) if adversely determined, has a reasonable
possibility of giving rise to a Material Adverse
Effect; or
(2) seeks to enjoin or otherwise prevent the consummation of, or
to recover any damages or obtain relief as a result of, the
transactions contemplated hereby;
written notice thereof together with such other information as may be
reasonably available to Company to enable Lenders and their respective
counsel to evaluate such matters; and (b) within twenty days after the end
of each Fiscal Quarter, a schedule of all Proceedings involving an alleged
liability of, or claims against or affecting, Company or any of its
Subsidiaries equal to or greater than $100,000, and promptly after request
by Agents such other information as may be reasonably requested by Agents
to enable Agents and their respective counsel to evaluate any of such
Proceedings;
(xi) ERISA Events: promptly upon becoming aware of the occurrence of
or forthcoming occurrence of any ERISA Event, a written notice specifying
the nature thereof, what action Company, any of its Subsidiaries or any of
their respective ERISA Affiliates has taken, is taking or proposes to take
with respect thereto and, when known, any action taken or threatened by the
Internal Revenue Service, the Department of Labor or the PBGC with respect
thereto;
(xii) ERISA Notices: with reasonable promptness, copies of (a) each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
filed by Company, any of its Subsidiaries or any of their respective ERISA
Affiliates with the Internal Revenue Service with respect to each Pension
Plan; (b) all notices received by Company, any of its Subsidiaries or any
of their respective ERISA Affiliates from a Multiemployer Plan sponsor
concerning an ERISA Event; and (c) copies of such other documents or
governmental reports or filings relating to any Employee Benefit Plan as
Administrative Agent shall reasonably request;
(xiii) Financial Plans: as soon as practicable and in any event no
later than ten days after the beginning of each Fiscal Year, a consolidated
plan and financial forecast for such Fiscal Year and the next four
succeeding Fiscal Years (the "FINANCIAL PLAN" for such Fiscal Years),
including (a) a forecasted consolidated balance sheet and forecasted
consolidated statements of income and cash flows of Company and its
Subsidiaries for each such Fiscal Year, together with pro forma financial
covenant calculations for each such Fiscal Year determined in a manner
consistent with financial covenant calculations shown in a Compliance
Certificate and an explanation of the assumptions on which such forecasts
are based, (b) forecasted consolidated statements of income and cash flows
of Company and its Subsidiaries for each quarter of the first such Fiscal
Year, together with an explanation of the assumptions on which such
forecasts are based, (c) the amount of forecasted unallocated overhead for
each such Fiscal Year, (d) performance data by restaurant concept with
respect to sales, comparative restaurant sales growth, gross profit and
operating contribution and (e) such other information and projections as
any Lender may reasonably request;
(xiv) Insurance: as soon as practicable and in any event by April 30
of each year, a report in form and substance satisfactory to Administrative
Agent outlining all material insurance coverage maintained as of the date
of such report by Company and its Subsidiaries and all material insurance
coverage planned to be maintained by Company and its Subsidiaries in the
twelve months ending on the next succeeding March 28;
(xv) Board of Directors: with reasonable
promptness, written notice of any change in the Board of
Directors of Company;
(xvi) New Subsidiaries: promptly upon any Person becoming a Subsidiary
of Company, a written notice setting forth with respect to such Person (a)
the date on which such Person became a Subsidiary of Company and (b) all of
the data required to be set forth in Schedule 5.1 annexed hereto with
respect to all Subsidiaries of Company (it being understood that such
written notice shall be deemed to supplement Schedule 5.1 annexed hereto
for all purposes of this Agreement;
(xvii) Material Contracts: promptly, and in any event within ten
Business Days after any Material Contract of Company or any of its
Subsidiaries is terminated or amended in a manner that is materially
adverse to Company or such Subsidiary, as the case may be, or any new
Material Contract is entered into, a written statement describing such
event with copies of such material amendments or new contracts, and an
explanation of any actions being taken with respect thereto;
(xviii) UCC Search Report: As promptly as practicable after the date
of delivery to Administrative Agent of any UCC financing statement executed
by any Loan Party pursuant to subsection 4.1E(iv) or 6.8A, copies of
completed UCC searches evidencing the proper filing, recording and indexing
of all such UCC financing statement and listing all other effective
financing statements that name such Loan Party as debtor, together with
copies of all such other financing statements not previously delivered to
Administrative Agent by or on behalf of Company or such Loan Party; and
(xix) 1996 Audited Financial Statements: Within
five Business Days of the Closing Date, audited financial
statements of Holdings and its Subsidiaries for the
Fiscal Year ended December 30, 1996, together with the
report of Holdings' independent accountants thereon; and
(xx) Other Information: with reasonable prompt-
ness, such other information and data with respect to
Company or any of its Subsidiaries as from time to time
may be reasonably requested by any Lender.
6.2 CORPORATE EXISTENCE, ETC.
Except as permitted under subsection 7.7, Company will, and will cause
each of its Subsidiaries to, at all times preserve and keep in full force and
effect its corporate existence and all rights and franchises material to its
business; provided, however that neither Company nor any of its Subsidiaries
shall be required to preserve any such right or franchise if the Board of
Directors of Company or such Subsidiary shall determine that the preservation
thereof is no longer desirable in the conduct of the business of Company or such
Subsidiary, as the case may be, and that the loss thereof is not disadvantageous
in any material respect to Company, such Subsidiary or Lenders.
6.3 PAYMENT OF TAXES AND CLAIMS; TAX CONSOLIDATION.
A. Company will, and will cause each of its Subsidiaries to, pay all
taxes, assessments and other governmental charges imposed upon it or any of its
properties or assets or in respect of any of its income, businesses or
franchises before any penalty accrues thereon, and all claims (including claims
for labor, services, materials and supplies) for sums that have become due and
payable and that by law have or may become a Lien upon any of its properties or
assets, prior to the time when any penalty or fine shall be incurred with
respect thereto; provided that no such charge or claim need be paid if it is
being contested in good faith by appropriate proceedings promptly instituted and
diligently conducted, so long as (1) such reserve or other appropriate
provision, if any, as shall be required in conformity with GAAP shall have been
made therefor and (2) in the case of a charge or claim which has or may become a
Lien against any of the Collateral, such contest proceedings conclusively
operate to stay the sale of any portion of the Collateral to satisfy such charge
or claim.
B. Company will not, nor will it permit any of its Subsidiaries to,
file or consent to the filing of any consolidated income tax return with any
Person (other than Company or any of its Subsidiaries).
6.4 MAINTENANCE OF PROPERTIES; INSURANCE; APPLICATION OF NET
INSURANCE/ CONDEMNATION PROCEEDS.
A. MAINTENANCE OF PROPERTIES. Company will, and will cause each of its
Subsidiaries to, maintain or cause to be maintained in good repair, working
order and condition, ordinary wear and tear excepted, all material properties
used or useful in the business of Company and its Subsidiaries (including all
Intellectual Property) and from time to time will make or cause to be made all
appropriate repairs, renewals and replacements thereof.
B. INSURANCE. Company will maintain or cause to be maintained, with
financially sound and reputable insurers, such public liability insurance, third
party property damage insurance, business interruption insurance and casualty
insurance with respect to liabilities, losses or damage in respect of the
assets, properties and businesses of Company and its Subsidiaries as may
customarily be carried or maintained under similar circumstances by corporations
of established reputation engaged in similar businesses, in each case in such
amounts (giving effect to self-insurance), with such deductibles, covering such
risks and otherwise on such terms and conditions as shall be customary for
corporations similarly situated in the industry. Without limiting the generality
of the foregoing, Company will maintain or cause to be maintained (i) flood
insurance with respect to each Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program, in each
case in compliance with any applicable regulations of the Board of Governors of
the Federal Reserve System, and (ii) replacement value casualty insurance on the
Collateral under such policies of insurance, with such insurance companies, in
such amounts, with such deductibles, and covering such risks as are at all times
satisfactory to Agents in their commercially reasonable judgment. Each such
policy of insurance shall (a) name Administrative Agent for the benefit of
Lenders as an additional insured thereunder as its interests may appear and (b)
in the case of each business interruption and casualty insurance policy, contain
a loss payable clause or endorsement, satisfactory in form and substance to
Agents, that names Administrative Agent for the benefit of Lenders as the loss
payee thereunder for any covered loss in excess of $500,000 and provides for at
least 30 days prior written notice to Agents of any modification or cancellation
of such policy.
6.5 INSPECTION RIGHTS; AUDITS OF INVENTORY AND ACCOUNTS
RECEIVABLE; LENDER MEETING.
A. INSPECTION RIGHTS. Company shall, and shall cause each of its
Subsidiaries to, permit any authorized representatives designated by any Lender
to visit and inspect any of the properties of Company or of any of its
Subsidiaries, to inspect, copy and take extracts from its and their financial
and accounting records, and to discuss its and their affairs, finances and
accounts with its and their officers and independent public accountants
(provided that Company may, if it so chooses, be present at or participate in
any such discussion), all upon reasonable notice and at such reasonable times
during normal business hours and as often as may reasonably be requested.
B. LENDER MEETING. Company will, upon the request of Agents or
Requisite Lenders, participate in a meeting of Agents and Lenders once during
each Fiscal Year to be held at Company's corporate offices (or at such other
location as may be agreed to by Company and Agents) at such time as may be
agreed to by Company and Agents.
6.6 COMPLIANCE WITH LAWS, ETC.
Company shall comply, and shall cause each of its Subsidiaries and all
other Persons on or occupying any Facilities to comply, with the requirements of
all applicable laws, rules, regulations and orders of any governmental authority
(including all Environmental Laws), noncompliance with which could reasonably be
expected to cause, individually or in the aggregate, a Material Adverse Effect.
6.7 ENVIRONMENTAL REVIEW AND INVESTIGATION, DISCLOSURE, ETC.;
COMPANY'S ACTIONS REGARDING HAZARDOUS MATERIALS
ACTIVITIES, ENVIRONMENTAL CLAIMS AND VIOLATIONS OF
ENVIRONMENTAL LAWS.
A. ENVIRONMENTAL REVIEW AND INVESTIGATION. Company agrees that Agents
may, from time to time and in their reasonable discretion, (i) retain, at
Company's expense, an independent professional consultant to review any
environmental audits, investigations, analyses and reports relating to Hazardous
Materials prepared by or for Company and (ii) conduct its own investigation of
any Facility; provided that, in the case of any Facility no longer owned,
leased, operated or used by Company or any of its Subsidiaries, Company shall
only be obligated to use its best efforts to obtain permission for Agents'
professional consultant to conduct an investigation of such Facility. For
purposes of conducting such a review and/or investigation, Company hereby grants
to Agents and their respective agents, employees, consultants and contractors
the right to enter into or onto any Facilities currently owned, leased, operated
or used by Company or any of its Subsidiaries and to perform such tests on such
property (including taking samples of soil, groundwater and suspected
asbestos-containing materials) as are reasonably necessary in connection
therewith. Any such investigation of any Facility shall be conducted, unless
otherwise agreed to by Company and Agents, during normal business hours and, to
the extent reasonably practicable, shall be conducted so as not to interfere
with the ongoing operations at such Facility or to cause any damage or loss to
any property at such Facility. Company and Agents hereby acknowledge and agree
that any report of any investigation conducted at the request of Agents pursuant
to this subsection 6.7A will be obtained and shall be used by Agents and Lenders
for the purposes of Lenders' internal credit decisions, to monitor and police
the Loans and to protect Lenders' security interests, if any, created by the
Loan Documents. Agents agree to deliver a copy of any such report to Company
with the understanding that Company acknowledges and agrees that (x) it will
indemnify and hold harmless each Agent and each Lender from any costs, losses or
liabilities relating to Company's use of or reliance on such report, (y) neither
of the Agents nor any Lender makes any representation or warranty with respect
to such report, and (z) by delivering such report to Company, neither of the
Agents nor any Lender is requiring or recommending the implementation of any
suggestions or recommendations contained in such report.
B. ENVIRONMENTAL DISCLOSURE. Company will deliver
to Agents and Lenders:
(i) Environmental Audits and Reports. As soon as practicable following
receipt thereof, copies of all environmental audits, investigations,
analyses and reports of any kind or character, whether prepared by
personnel of Company or any of its Subsidiaries or by independent
consultants, governmental authorities or any other Persons, with respect to
significant environmental matters at any Facility;
(ii) Notice of Certain Releases, Remedial Actions, Etc. Promptly upon
the occurrence thereof, written notice describing in reasonable detail (a)
any Release required to be reported to any federal, state or local
governmental or regulatory agency under any applicable Environmental Laws,
(b) any remedial action taken by Company or any other Person in response to
(1) any Hazardous Materials Activities the existence of which has a
reasonable possibility of resulting in one or more Environmental Claims
having, individually or in the aggregate, a Material Adverse Effect, or (2)
any Environmental Claims that, individually or in the aggregate, have a
reasonable possibility of resulting in a Material Adverse Effect, and (c)
Company's discovery of any occurrence or condition on any real property
adjoining or in the vicinity of any Facility that could cause such Facility
or any part thereof to be subject to any material restrictions on the
ownership, occupancy, transferability or use thereof under any
Environmental Laws.
(iii) Written Communications Regarding Environmental Claims, Releases,
Etc. As soon as practicable following the sending or receipt thereof by
Company or any of its Subsidiaries, a copy of any and all written
communications with respect to (a) any Environmental Claims that,
individually or in the aggregate, have a reasonable possibility of giving
rise to a Material Adverse Effect, (b) any Release required to be reported
to any federal, state or local governmental or regulatory agency, and (c)
any request for information from any governmental agency that suggests such
agency is investigating whether Company or any of its Subsidiaries may be
potentially responsible for any Hazardous Materials Activity.
(iv) Notice of Certain Proposed Actions Having Environmental Impact.
Prompt written notice describing in reasonable detail (a) any proposed
acquisition of stock, assets, or property by Company or any of its
Subsidiaries that could reasonably be expected to (1) expose Company or any
of its Subsidiaries to, or result in, Environmental Claims that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect or (2) affect the ability of Company or any of its
Subsidiaries to maintain in full force and effect all material Governmental
Authorizations required under any Environmental Laws for their respective
operations and (b) any proposed action to be taken by Company or any of its
Subsidiaries to commence manufacturing or other industrial operations or to
modify current operations in a manner that could reasonably be expected to
subject Company or any of its Subsidiaries to any additional obligations or
requirements under any Environmental Laws.
(v) Other Information. With reasonable promptness, such other
documents and information as from time to time may be reasonably requested
by Agents in relation to any matters disclosed pursuant to this subsection
6.7.
C. COMPANY'S ACTIONS REGARDING HAZARDOUS MATERIALS
ACTIVITIES, ENVIRONMENTAL CLAIMS AND VIOLATIONS OF
ENVIRONMENTAL LAWS.
(i) Remedial Actions Relating to Hazardous Materials Activities.
Company shall promptly undertake, and shall cause each of its Subsidiaries
promptly to undertake, any and all investigations, studies, sampling,
testing, abatement, cleanup, removal, remediation or other response actions
necessary to remove, remediate, clean up or abate any Hazardous Materials
Activity on, under or about any Facility that is in violation of any
Environmental Laws or that presents a material risk of giving rise to an
Environmental Claim. In the event Company or any of its Subsidiaries
undertakes any such action with respect to any Hazardous Materials, Company
or such Subsidiary shall conduct and complete such action in compliance
with all applicable Environmental Laws and in accordance with the policies,
orders and directives of all federal, state and local governmental
authorities except when, and only to the extent that, Company's or such
Subsidiary's liability with respect to such Hazardous Materials Activity is
being contested in good faith by Company or such Subsidiary.
(ii) Actions with Respect to Environmental Claims and Violations of
Environmental Laws. Company shall promptly take, and shall cause each of
its Subsidiaries promptly to take, any and all actions necessary to (i)
cure any violation of applicable Environmental Laws by Company or its
Subsidiaries and (ii) make an appropriate response to any Environmental
Claim against Company or any of its Subsidiaries and discharge any
obligations it may have to any Person thereunder.
6.8 EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL
PROPERTY COLLATERAL DOCUMENTS BY CERTAIN SUBSIDIARIES
AND FUTURE SUBSIDIARIES; EXECUTION OF AFFILIATED
STOCKHOLDER PLEDGE AGREEMENT BY FUTURE AFFILIATED
STOCKHOLDERS; IP COLLATERAL.
A. EXECUTION OF SUBSIDIARY GUARANTY AND PERSONAL PROPERTY COLLATERAL
DOCUMENTS. In the event that any Person becomes a Subsidiary of Company after
the date hereof, Company will promptly notify Administrative Agent of that fact
and cause such Subsidiary to execute and deliver to Administrative Agent a
counterpart of the Subsidiary Guaranty and a Subsidiary Pledge Agreement and a
Subsidiary Security Agreement and to take all such further actions and execute
all such further documents and instruments (including actions, documents and
instruments comparable to those described in subsection 4.1E) as may be
necessary or, in the opinion of Agents, desirable to create in favor of
Administrative Agent, for the benefit of Lenders, a valid and perfected First
Priority Lien on all of the personal and mixed property assets of such
Subsidiary described in the applicable forms of Collateral Documents.
B. SUBSIDIARY CHARTER DOCUMENTS, LEGAL OPINIONS, ETC. Company shall
deliver to Administrative Agent, together with such Loan Documents, (i)
certified copies of such Subsidiary's Certificate or Articles of Incorporation,
together with a good standing certificate from the Secretary of State of the
jurisdiction of its incorporation and each other state in which such Person is
qualified as a foreign corporation to do business and, to the extent generally
available, a certificate or other evidence of good standing as to payment of any
applicable franchise or similar taxes from the appropriate taxing authority of
each of such jurisdictions, each to be dated a recent date prior to their
delivery to Administrative Agent, (ii) a copy of such Subsidiary's Bylaws,
certified by its corporate secretary or an assistant secretary as of a recent
date prior to their delivery to Administrative Agent, (iii) a certificate
executed by the secretary or an assistant secretary of such Subsidiary as to (a)
the fact that the attached resolutions of the Board of Directors of such
Subsidiary approving and authorizing the execution, delivery and performance of
such Loan Documents are in full force and effect and have not been modified or
amended and (b) the incumbency and signatures of the officers of such Subsidiary
executing such Loan Documents, and (iv) a favorable opinion of counsel to such
Subsidiary, in form and substance satisfactory to Agents and their respective
counsel, as to (a) the due organization and good standing of such Subsidiary,
(b) the due authorization, execution and delivery by such Subsidiary of such
Loan Documents, (c) the enforceability of such Loan Documents against such
Subsidiary, (d) such other matters (including matters relating to the creation
and perfection of Liens in any Collateral pursuant to such Loan Documents) as
Agents may reasonably request, all of the foregoing to be satisfactory in form
and substance to Agents and their respective counsel.
C. EXECUTION OF AFFILIATED STOCKHOLDER PLEDGE AGREEMENT. In the event
that any Person becomes an Affiliated Stockholder after the date hereof, Company
will promptly notify Administrative Agent of that fact and cause such Affiliated
Stockholder to execute and deliver to Administrative Agent a counterpart of the
Affiliated Stockholder Pledge Agreement.
D. IP COLLATERAL. If any Subsidiary becomes an owner of any IP
Collateral, it will promptly execute and deliver to Administrative Agent a
copyright security agreement or a trademark security agreement, or such other
security agreement as Administrative Agent shall deem appropriate and take such
further action and execute such further documents and instruments as may be
necessary, or in the opinion of Administrative Agent, desirable to create in
favor of Administrative Agent, for the benefit of Lenders, a valid and perfected
First Priority Lien on such IP Collateral.
6.9 CONFORMING LEASEHOLD INTERESTS; MATTERS RELATING TO
ADDITIONAL REAL PROPERTY COLLATERAL.
A. CONFORMING LEASEHOLD INTERESTS. If Company or
any of its Subsidiaries acquires any Leasehold Property,
Company shall, or shall cause such Subsidiary to, cause such
Leasehold Property to be a Conforming Leasehold Interest.
B. ADDITIONAL MORTGAGES, ETC. From and after the Closing Date, in the
event that (i) Company or any Subsidiary Guarantor acquires any fee interest in
real property or any Material Leasehold Property or (ii) at the time any Person
becomes a Subsidiary Guarantor, such Person owns or holds any fee interest in
real property or any Material Leasehold Property, in either case excluding any
such Real Property Asset the encumbrancing of which requires the consent of any
applicable lessor or (in the case of clause (ii) above) then-existing senior
lienholder, where Company and its Subsidiaries are unable to obtain such
lessor's or senior lienholder's consent (any such non-excluded Real Property
Asset described in the foregoing clause (i) or (ii) being an "ADDITIONAL
MORTGAGED PROPERTY"), Company or such Subsidiary Guarantor shall deliver to
Administrative Agent, as soon as practicable after such Person acquires such
Additional Mortgaged Property or becomes a Subsidiary Guarantor, as the case may
be, the following:
(i) Additional Mortgage. A fully executed and
notarized Mortgage (an "ADDITIONAL MORTGAGE"), duly
recorded in all appropriate places in all applicable
jurisdictions, encumbering the interest of such Loan
Party in such Additional Mortgaged Property;
(ii) Opinions of Counsel. (a) A favorable opinion of counsel to such
Loan Party, in form and substance satisfactory to Agents and their
respective counsel, as to the due authorization, execution and delivery by
such Loan Party of such Additional Mortgage and such other matters as
Agents may reasonably request, and (b) if required by Agents, an opinion of
counsel (which counsel shall be reasonably satisfactory to Agents) in the
state in which such Additional Mortgaged Property is located with respect
to the enforceability of the form of Additional Mortgage recorded in such
state and such other matters (including any matters governed by the laws of
such state regarding personal property security interests in respect of any
Collateral) as Agents may reasonably request, in each case in form and
substance reasonably satisfactory to Agents;
(iii) Landlord Consent and Estoppel; Recorded Leasehold Interest. In
the case of an Additional Mortgaged Property consisting of a Leasehold
Property, (a) a Landlord Consent and Estoppel, unless Company or such
Subsidiary is unable to obtain the Landlord Consent and Estoppel after
using commercially reasonable efforts to obtain the same and (b) evidence
that such Leasehold Property is a Recorded Leasehold Interest;
(iv) Title Insurance. (a) If required by Agents, an ALTA mortgagee
title insurance policy or an unconditional commitment therefor (an
"ADDITIONAL MORTGAGE POLICY") issued by the Title Company with respect to
such Additional Mortgaged Property, in an amount satisfactory to Agents,
insuring fee simple title to, or a valid leasehold interest in, such
Additional Mortgaged Property vested in such Loan Party and assuring Agents
that such Additional Mortgage creates a valid and enforceable First
Priority mortgage Lien on such Additional Mortgaged Property, subject only
to a standard survey exception, which Additional Mortgage Policy (1) shall
include an endorsement for mechanics' liens, for future advances under this
Agreement and for any other matters reasonably requested by Agents and (2)
shall provide for affirmative insurance and such reinsurance as Agents may
reasonably request, all of the foregoing in form and substance reasonably
satisfactory to Agents; and (b) evidence satisfactory to Agents that such
Loan Party has (i) delivered to the Title Company all certificates and
affidavits required by the Title Company in connection with the issuance of
the Additional Mortgage Policy and (ii) paid to the Title Company or to the
appropriate governmental authorities all expenses and premiums of the Title
Company in connection with the issuance of the Additional Mortgage Policy
and all recording and stamp taxes (including mortgage recording and
intangible taxes) payable in connection with recording the Additional
Mortgage in the appropriate real estate records;
(v) Title Report. If no Additional Mortgage Policy is required with
respect to such Additional Mortgaged Property, a title report issued by the
Title Company with respect thereto, dated not more than 30 days prior to
the date such Additional Mortgage is to be recorded and satisfactory in
form and substance to Agents;
(vi) Copies of Documents Relating to Title
Exceptions. Copies of all recorded documents listed as
exceptions to title or otherwise referred to in the
Additional Mortgage Policy or title report delivered
pursuant to clause (v) or (vi) above;
(vii) Matters Relating to Flood Hazard Properties. (a) Evidence, which
may be in the form of a letter from an insurance broker or a municipal
engineer, as to (1) whether such Additional Mortgaged Property is a Flood
Hazard Property and (2) if so, whether the community in which such Flood
Hazard Property is located is participating in the National Flood Insurance
Program, (b) if such Additional Mortgaged Property is a Flood Hazard
Property, such Loan Party's written acknowledgement of receipt of written
notification from Administrative Agent (1) that such Additional Mortgaged
Property is a Flood Hazard Property and (2) as to whether the community in
which such Flood Hazard Property is located is participating in the
National Flood Insurance Program, and (c) in the event such Additional
Mortgaged Property is a Flood Hazard Property that is located in a
community that participates in the National Flood Insurance Program,
evidence that Company has obtained flood insurance in respect of such Flood
Hazard Property to the extent required under the applicable regulations of
the Board of Governors of the Federal Reserve System; and
(viii) Environmental Audit. If required by Agents, reports and other
information, in form, scope and substance satisfactory to Agents and
prepared by environmental consultants satisfactory to Agents, concerning
any environmental hazards or liabilities to which Company or any of its
Subsidiaries may be subject with respect to such Additional Mortgaged
Property.
6.10 INTEREST RATE PROTECTION.
At all times after the date which is 90 days after the Closing Date
until the second anniversary of the Closing Date, Company shall maintain in
effect one or more Interest Rate Agreements with respect to the Loans, in an
aggregate notional principal amount of not less than 50% of the aggregate
principal amount of the Term Loans outstanding from time to time, which Interest
Rate Agreements shall have the effect of establishing a maximum interest rate to
the satisfaction of Syndication Agent per annum with respect to such notional
principal amount, each such Interest Rate Agreement to be in form and substance
satisfactory to Syndication Agent and with a term of not less than two years.
6.11 ESCROW ACCOUNT.
Immediately upon the closing of the Sale and Leaseback Transactions,
Company shall deposit $22,100,000 in cash proceeds from the Sale and Leaseback
Transactions in an account maintained by Administrative Agent (the "ESCROW
ACCOUNT"). No other moneys shall be deposited into the Escrow Account. The
Escrow Account will be established with and held by Administrative Agent, which
shall have sole dominion and control over the Escrow Account. Amounts on deposit
in the Escrow Account may be withdrawn at the request of Company and used to
complete the Repurchase as soon as practicable after the closing date of the
Sale and Leaseback Transactions, but in any event prior to November 15, 1997. If
the Repurchase has not been completed within such period, such proceeds shall be
utilized (1) to prepay the Loans pursuant to subsection 2.4B(iii)(f), or (2) to
pay costs, as incurred, for the construction or acquisition of new restaurants;
provided that such proceeds shall be utilized as provided in clause (1) above
unless (a) Company shall have provided Agents a plan (showing in reasonable
detail (i) intended restaurant locations, (ii) intended restaurant concepts,
(iii) anticipated timing of construction and opening, (iv) anticipated sales and
operating profits for the following three Fiscal Years for such restaurant, (v)
estimated capital expenditures related thereto and (vi) estimated square footage
of each such restaurant) for the construction or acquisition of new restaurants
on or before November 15, 1997, and (b) such proceeds shall be spent
substantially in accordance with such plan.
6.12 RECAPITALIZATION FEES.
The aggregate amount of fees and expenses incurred by Company in connection
with the Recapitalization shall not exceed $4,500,000.
SECTION 7. COMPANY'S NEGATIVE COVENANTS
Company covenants and agrees that, so long as any of the Commitments
hereunder shall remain in effect and until payment in full of all of the Loans
and other Obligations and the cancellation or expiration of all Letters of
Credit, unless Requisite Lenders shall otherwise give prior written consent,
Company shall perform, and shall cause each of its Subsidiaries to perform, all
covenants in this Section 7.
7.1 INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create, incur, assume or guaranty, or otherwise become
or remain directly or indirectly liable with respect to, any Indebtedness,
except:
(i) Company may become and remain liable with
respect to the Obligations;
(ii) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations permitted by subsection 7.4 and, upon any
matured obligations actually arising pursuant thereto, the Indebtedness
corresponding to the Contingent Obligations so extinguished;
(iii) Company and its Subsidiaries may become and remain liable with
respect to Indebtedness in respect of Capital Leases in an aggregate amount
not exceeding $5,000,000; provided that such Capital Leases are permitted
under the terms of subsections 7.6, 7.8 and 7.9;
(iv) Company may become and remain liable with respect to Indebtedness
to any of its wholly-owned Subsidiaries, and any wholly-owned Subsidiary of
Company may become and remain liable with respect to Indebtedness to
Company or any other wholly-owned Subsidiary of Company; provided that (a)
all such intercompany Indebtedness shall be evidenced by promissory notes,
(b) all such intercompany Indebtedness owed by Company to any of its
Subsidiaries shall be subordinated in right of payment to the payment in
full of the Obligations pursuant to the terms of the applicable promissory
notes or an intercompany subordination agreement, and (c) any payment by
any Subsidiary of Company under any guaranty of the Obligations shall
result in a pro tanto reduction of the amount of any intercompany
Indebtedness owed by such Subsidiary to Company or to any of its
Subsidiaries for whose benefit such payment is made;
(v) Company and its Subsidiaries, as applicable, may
remain liable with respect to Indebtedness described in
Schedule 7.1 annexed hereto; and
(vi) Company and its Subsidiaries may become and remain liable with
respect to other Indebtedness in an aggregate principal amount not to
exceed $1,000,000 at any time outstanding.
7.2 LIENS AND RELATED MATTERS.
A. PROHIBITION ON LIENS. Company shall not, and shall not permit any
of its Subsidiaries to, directly or indirectly, create, incur, assume or permit
to exist any Lien on or with respect to any property or asset of any kind
(including any document or instrument in respect of goods or accounts
receivable) of Company or any of its Subsidiaries, whether now owned or
hereafter acquired, or any income or profits therefrom, or file or permit the
filing of, or permit to remain in effect, any financing statement or other
similar notice of any Lien with respect to any such property, asset, income or
profits under the Uniform Commercial Code of any State or under any similar
recording or notice statute, except:
(i) Permitted Encumbrances;
(ii) Liens granted pursuant to the Collateral
Documents;
(iii) Liens described in Schedule 7.2 annexed
hereto; and
(iv) Other Liens securing Indebtedness in an
aggregate amount not to exceed $1,000,000 at any time
outstanding.
B. EQUITABLE LIEN IN FAVOR OF LENDERS. If Company or any of its
Subsidiaries shall create or assume any Lien upon any of its properties or
assets, whether now owned or hereafter acquired, other than Liens excepted by
the provisions of subsection 7.2A, it shall make or cause to be made effective
provision whereby the Obligations will be secured by such Lien equally and
ratably with any and all other Indebtedness secured thereby as long as any such
Indebtedness shall be so secured; provided that, notwithstanding the foregoing,
this covenant shall not be construed as a consent by Requisite Lenders to the
creation or assumption of any such Lien not permitted by the provisions of
subsection 7.2A.
C. NO FURTHER NEGATIVE PLEDGES. Except with respect to specific property
encumbered to secure payment of particular Indebtedness or to be sold pursuant
to an executed agreement with respect to an Asset Sale, neither Company nor any
of its Subsidiaries shall enter into any agreement (other than an agreement
prohibiting only the creation of Liens securing Subordinated Indebtedness)
prohibiting the creation or assumption of any Lien upon any of its properties or
assets, whether now owned or hereafter acquired.
D. NO RESTRICTIONS ON SUBSIDIARY DISTRIBUTIONS TO COMPANY OR OTHER
SUBSIDIARIES. Except as provided herein, Company will not, and will not permit
any of its Subsidiaries to, create or otherwise cause or suffer to exist or
become effective any consensual encumbrance or restriction of any kind on the
ability of any such Subsidiary to (i) pay dividends or make any other
distributions on any of such Subsidiary's capital stock owned by Company or any
other Subsidiary of Company, (ii) repay or prepay any Indebtedness owed by such
Subsidiary to Company or any other Subsidiary of Company, (iii) make loans or
advances to Company or any other Subsidiary of Company, or (iv) transfer any of
its property or assets to Company or any other Subsidiary of Company.
7.3 INVESTMENTS; JOINT VENTURES.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, make or own any Investment in any Person, including any
Joint Venture, except:
(i) Company and its Subsidiaries may make and own
Investments in Cash Equivalents;
(ii) Company and its Subsidiaries may continue
to own the Investments owned by them as of the Closing
Date in any Subsidiaries of Company;
Company and its Subsidiaries may make
intercompany loans to the extent permitted under
subsection 7.1(iv);
(iv) Company and its Subsidiaries may make
Consolidated Capital Expenditures permitted by
subsections 7.6, 7.8 and 7.9;
(v) Company and its Subsidiaries may continue to own
the Investments owned by them and described in
Schedule 7.3 annexed hereto;
(vi) Company and its Subsidiaries may make Investments in any Person
in connection with a new restaurant to be acquired or constructed by
Company and/or such Person if such Investment results in such Person being
a wholly-owned Subsidiary of Company or a wholly-owner Subsidiary; and
(vii) Company and its Subsidiaries may make and
own other Investments in an aggregate amount not to
exceed at any time $1,000,000.
7.4 CONTINGENT OBLIGATIONS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, create or become or remain liable with respect to any
Contingent Obligation, except:
(i) Subsidiaries of Company may become and remain
liable with respect to Contingent Obligations in respect
of the Subsidiary Guaranty;
(ii) Company may become and remain liable with respect to Contingent
Obligations in respect of Letters of Credit and Company and its
Subsidiaries may become and remain liable with respect to Contingent
Obligations in respect of other letters of credit in an aggregate amount at
anytime not to exceed $500,000;
(iii) Company may become and remain liable with
respect to Contingent Obligations under Hedge Agreements
required under subsection 6.10;
(iv) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations under guarantees in the ordinary course
of business of the obligations of suppliers, customers, franchisees and
licensees of Company and its Subsidiaries in an aggregate amount not to
exceed at any time $1,000,000;
(v) Company and its Subsidiaries may become and remain liable with
respect to Contingent Obligations in respect of any Indebtedness of Company
or any of its Subsidiaries permitted by subsection 7.1;
(vi) Company and its Subsidiaries, as
applicable, may remain liable with respect to Contingent
Obligations described in Schedule 7.4 annexed hereto; and
(vii) Company and its Subsidiaries may become and remain liable with
respect to other Contingent Obligations; provided that the maximum
aggregate liability, contingent or otherwise, of Company and its
Subsidiaries in respect of all such Contingent Obligations shall at no time
exceed $2,000,000.
7.5 RESTRICTED JUNIOR PAYMENTS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, declare, order, pay, make or set apart any sum for any
Restricted Junior Payment; provided that Company may utilize the funds on
deposit in the Escrow Account as specified in subsection 6.11 to provide funds
to Holdings to consummate the Repurchase subject to the provisions of subsection
2.4B(iii)(f) and provided further that any Subsidiary may pay dividends or make
other distributions to Company.
7.6 FINANCIAL COVENANTS.
A. MINIMUM FIXED CHARGE COVERAGE RATIO. Company shall
not permit the ratio of (i) Consolidated EBITDA to
(ii) Consolidated Fixed Charges for any consecutive four-
Fiscal Quarter period ending on the dates set forth below to
be less than the correlative ratio indicated:
MINIMUM FIXED
FISCAL QUARTER ENDING DATE CHARGE COVERAGE RATIO
June 30, 1997 2.58
September 29, 1997 2.33
December 29, 1997 2.18
March 30, 1998 1.96
June 29, 1998 1.78
September 28, 1998 1.75
December 28,1998 1.71
March 29, 1999 1.74
June 28, 1999 1.76
September 27, 1999 1.79
December 27, 1999 1.82
March 27, 2000 1.82
June 26, 2000 1.85
September 25, 2000 1.88
December 25, 2000 1.88
March 26, 2001 1.88
June 25, 2001 1.89
September 24, 2001 1.90
December 31, 2001 1.91
April 1, 2002 1.86
July 1, 2002 1.87
September 30, 2002 1.46
December 30, 2002 1.21
March 31, 2003 1.02
June 30, 2003 1.00
September 29, 2003 1.00
December 29, 2003 1.00
March 29, 2004 1.00
June 28, 2004 1.00
B. MAXIMUM LEVERAGE RATIO. Company shall not permit the
Consolidated Leverage Ratio at any time during any of the
periods set forth below to exceed the correlative ratio
indicated:
PERIOD MAXIMUM LEVERAGE RATIO
April 15, 1997 March 30, 1998 2.7
March 31, 1998 December 28, 1998 2.6
December 29, 1998 March 29, 1999 2.5
March 30, 1999 June 28, 1999 2.4
June 29, 1999 December 27, 1999 2.3
December 28, 1999 March 27, 2000 2.2
March 28, 2000 June 26, 2000 2.1
June 27, 2000 September 25, 2000 2.0
September 26, 2000 March 26, 2001 1.9
March 27, 2001 June 25, 2001 1.8
June 26, 2001 September 24, 2001 1.7
September 25, 2001 April 1, 2002 1.6
April 2, 2002 July 1, 2002 1.5
July 2, 2002 September 30, 2002 1.3
October 1, 2002 December 30, 2002 1.1
Thereafter 1.0
C. MINIMUM CONSOLIDATED EBITDA. Company shall not
permit Consolidated EBITDA for the consecutive four-Fiscal
Quarter Period ending on the date indicated below to be less
than the correlative amount indicated:
MINIMUM CONSOLIDATED
FISCAL QUARTER ENDING DATE EBITDA
$ in millions
June 30, 1997 28.7
September 29, 1997 27.7
December 29, 1997 27.5
March 30, 1998 27.2
June 29, 1998 27.0
September 28, 1998 26.8
December 28, 1998 26.5
March 29, 1999 27.1
June 28, 1999 27.6
September 27, 1999 28.1
December 27, 1999 28.7
March 27, 2000 28.8
June 26, 2000 29.6
September 25, 2000 30.4
December 25, 2000 31.4
March 26, 2001 31.4
June 25, 2001 32.2
September 24, 2001 33.1
December 31, 2001 34.2
April 1, 2002 34.1
July 1, 2002 35.0
September 30, 2002 35.8
December 30, 2002 36.9
March 31, 2003 36.3
June 30, 2003 36.9
September 29, 2003 37.4
December 29, 2003 38.1
March 29, 2004 38.2
June 28, 2004 38.3
D. MINIMUM CONSOLIDATED NET WORTH. Company shall not
permit Consolidated Net Worth during the period ending on the
dates set forth below to be less than the correlative amount
indicated:
MINIMUM
PERIOD ENDING CONSOLIDATED NET WORTH
($ in millions)
June 30, 1997 40.3
September 29, 1997 42.2
December 29, 1997 44.6
March 30, 1998 44.8
June 29, 1998 46.2
September 28, 1998 47.6
December 28, 1998 49.3
March 29, 1999 50.8
June 28, 1999 52.3
September 27, 1999 52.3
December 27, 1999 54.0
March 27, 2000 55.6
June 26, 2000 57.3
September 25, 2000 58.9
December 25, 2000 61.0
March 26, 2001 61.1
June 25, 2001 63.0
September 24, 2001 64.8
December 31, 2001 67.1
April 1, 2002 67.4
July 1, 2002 69.7
September 30, 2002 71.9
December 30, 2002 74.7
March 31, 2003 74.7
June 30, 2003 75.9
September 29, 2003 78.6
December 29, 2003 82.1
March 29, 2004 82.1
June 28, 2004 83.0
7.7 RESTRICTION ON FUNDAMENTAL CHANGES; ASSET SALES AND
ACQUISITIONS.
Company shall not, and shall not permit any of its Subsidiaries to,
alter the corporate, capital or legal structure of Company or any of its
Subsidiaries, or enter into any transaction of merger or consolidation, or
liquidate, wind-up or dissolve itself (or suffer any liquidation or
dissolution), or convey, sell, lease or sub-lease (as lessor or sublessor),
transfer or otherwise dispose of, in one transaction or a series of
transactions, all or any part of its business, property or assets, whether now
owned or hereafter acquired, or acquire by purchase or otherwise all or
substantially all the business, property or fixed assets of, or stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person, except:
(i) any Subsidiary of Company may be merged with or into Company or
any wholly-owned Subsidiary Guarantor, or be liquidated, wound up or
dissolved, or all or any part of its business, property or assets may be
conveyed, sold, leased, transferred or otherwise disposed of, in one
transaction or a series of transactions, to Company or any wholly-owned
Subsidiary Guarantor; provided that, in the case of such a merger, Company
or such wholly-owned Subsidiary Guarantor shall be the continuing or
surviving corporation;
(ii) Company and its Subsidiaries may make Con-
solidated Capital Expenditures permitted under subsection
7.8;
(iii) Company and its Subsidiaries may dispose of
obsolete, worn out or surplus property in the ordinary
course of business; and
(iv) Company and its Subsidiaries may sell or otherwise dispose of
assets in transactions that do not constitute Asset Sales; provided that
the consideration received for such assets shall be in an amount at least
equal to the fair market value thereof.
7.8 CONSOLIDATED CAPITAL EXPENDITURES.
Company shall not, and shall not permit its Subsidiaries to, make or
incur Consolidated Capital Expenditures in any period indicated below, in an
aggregate amount in excess of the corresponding amount (the "MAXIMUM
CONSOLIDATED CAPITAL EXPENDITURES AMOUNT") set forth below under the column
Maximum Capital Expenditures Amount opposite such period, subject to the
following:
(i) the Maximum Consolidated Capital Expenditures Amount for any
Fiscal Year shall be increased by an amount equal to the excess, if any, of
the Maximum Consolidated Capital Expenditures Amount (as adjusted in
accordance with clause (ii) but without taking any adjustment made in
accordance with this clause (i) into account) for the previous Fiscal Year
over the actual amount of Consolidated Capital Expenditures for such
previous Fiscal Year; provided, that in no event shall the amount of such
increase exceed 25% of the Maximum Consolidated Capital Expenditures Amount
for such previous Fiscal Year (as adjusted in accordance with clause (ii)
but without taking any adjustment made in accordance with this clause (i)
into account) and provided, further, that the amount of such increase may
be spent by Company at anytime during the Fiscal year without regard to the
six-month period referred to in clause (ii);
(ii) the Maximum Consolidated Capital Expenditures Amount for each
six-month period shown below shall be decreased by the product of two times
the difference between the amount shown below under budgeted EBITDA and
actual Consolidated EBITDA in each case for the twelve months ending on the
date that is one year prior to the end of each six-month period (if such
difference is a negative number, it shall be deemed to be zero); provided
that in calculating such decrease for periods ending in 1998 based on the
Fiscal Year ending in 1997, the product shall be four times such
difference, which shall reduce the Maximum Capital Expenditures Amount for
the periods ending in 1998 by a pro rata portion for each period; and
(iii) the Maximum Consolidated Capital Expenditures Amount shall not
be decreased in accordance with clause (ii) by an amount that is greater
than the amount shown below under Maximum New Restaurant Capital
Expenditures:
Period Ending* Budgeted EBITDA** Maximum New Restaurant
Capital Expenditures** Minimum/ Maintenance Capital
Expenditures** Maximum Capital Expenditures Amount**
December 29, 1997 $30.5 $-- $-- $11.0
June 29, 1998 30.0 7.2 5.5 12.7
December 28, 1998 29.5 4.8 3.7 8.5
June 28, 1999 30.7 9.0 4.6 13.6
December 27, 1999 31.9 6.0 3.1 9.1
June 26, 2000 33.8 9.4 4.9 14.3
December 25, 2000 35.8 6.2 3.3 9.5
June 25, 2001 37.9 9.7 5.3 15.0
December 31, 2001 40.2 6.5 3.5 10.0
July 1, 2002 42.4 9.4 5.6 15.0
December 30, 2002 44.7 6.2 3.8 10.0
June 20, 2003 46.1 9.1 5.9 15.0
December 29, 2003 47.6 6.0 4.0 10.0
June 28, 2004 47.8 8.9 6.1 15.0
* All fiscal periods are for the six months ending on the date shown, except
the period ending on December 29, 1997 shall be for the twelve months
ending on such date.
** Amounts in millions.
7.9 RESTRICTION ON LEASES.
Company shall not, and shall not permit any of its Subsidiaries to,
become liable in any way, whether directly or by assignment or as a guarantor or
other surety, for the obligations of the lessee under any lease, whether an
Operating Lease or a Capital Lease (other than intercompany leases between
Company and its wholly-owned Subsidiaries), unless, immediately after giving
effect to the incurrence of liability with respect to such lease, the
Consolidated Rental Payments at the time in effect during the then current
Fiscal Year shall not exceed the corresponding amount set forth below opposite
such Fiscal Year:
MAXIMUM CONSOLIDATED
FISCAL YEAR RENTAL PAYMENTS
1997 $ 17.2 million
1998 19.5 million
1999 21.2 million
2000 22.4 million
2001 23.7 million
2002 24.9 million
2003 25.7 million
January 1 -- June 30, 2004 13.3 million
7.10 SALES AND LEASE-BACKS.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, become or remain liable as lessee or as a guarantor or
other surety with respect to any lease, whether an Operating Lease or a Capital
Lease, of any property (whether real, personal or mixed), whether now owned or
hereafter acquired, (i) which Company or any of its Subsidiaries has sold or
transferred or is to sell or transfer to any other Person (other than Company or
any of its Subsidiaries) or (ii) which Company or any of its Subsidiaries
intends to use for substantially the same purpose as any other property which
has been or is to be sold or transferred by Company or any of its Subsidiaries
to any Person (other than Company or any of its Subsidiaries) in connection with
such lease; provided that Company and its Subsidiaries may become and remain
liable as lessee, guarantor or other surety with respect to any such lease (A)
in connection with the Sales and Leaseback Transactions, if such Sales and
Leaseback Transactions are completed on or prior to August 15, 1997, and the
Additional Sales and Leaseback Transactions and (B) with respect to any such
lease if and to the extent that Company or any of its Subsidiaries would be
permitted to enter into, and remain liable under, such lease under subsection
7.9.
7.11 SALE OR DISCOUNT OF RECEIVABLES.
Company shall not, and shall not permit any of its Subsidiaries to,
directly or indirectly, sell with recourse, or discount or otherwise sell for
less than the face value thereof, any of its notes or accounts receivable.
7.12 TRANSACTIONS WITH SHAREHOLDERS AND AFFILIATES.
Except for the transactions described on Schedule 7.12, Company shall
not, and shall not permit any of its Subsidiaries to, directly or indirectly,
enter into or permit to exist any transaction (including the purchase, sale,
lease or exchange of any property or the rendering of any service) with any
holder of 5% or more of any class of equity Securities of Company or with any
Affiliate of Company or of any such holder, on terms that are less favorable to
Company or that Subsidiary, as the case may be, than those that might be
obtained at the time from Persons who are not such a holder or Affiliate;
provided that the foregoing restriction shall not apply to (i) any transaction
between Company and any of its wholly-owned Subsidiaries or between any of its
wholly-owned Subsidiaries or (ii) reasonable and customary fees paid to members
of the Boards of Directors of Company and its Subsidiaries.
7.13 DISPOSAL OF SUBSIDIARY STOCK.
Company shall not:
(i) directly or indirectly sell, assign, pledge or otherwise encumber
or dispose of any shares of capital stock or other equity Securities of any
of its Subsidiaries, except to qualify directors if required by applicable
law; or
(ii) permit any of its Subsidiaries directly or indirectly to sell,
assign, pledge or otherwise encumber or dispose of any shares of capital
stock or other equity Securities of any of its Subsidiaries (including such
Subsidiary), except to Company, another Subsidiary of Company, or to
qualify directors if required by applicable law.
7.14 CONDUCT OF BUSINESS.
From and after the Closing Date, Company shall not, and shall not
permit any of its Subsidiaries to, engage in any business other than (i) the
businesses engaged in by Company and its Subsidiaries on the Closing Date and
similar or related businesses and (ii) such other lines of business as may be
consented to by Requisite Lenders.
7.15 AMENDMENTS OF DOCUMENTS RELATING TO SUBORDINATED
INDEBTEDNESS.
Company shall not, and shall not permit any of its Subsidiaries to,
amend or otherwise change the terms of any Subordinated Indebtedness, or make
any payment consistent with an amendment thereof or change thereto, if the
effect of such amendment or change is to increase the interest rate on such
Subordinated Indebtedness, change (to earlier dates) any dates upon which
payments of principal or interest are due thereon, change any event of default
or condition to an event of default with respect thereto (other than to
eliminate any such event of default or increase any grace period related
thereto), change the redemption, prepayment or defeasance provisions thereof,
change the subordination provisions thereof (or of any guaranty thereof), or
change any collateral therefor (other than to release such collateral), or if
the effect of such amendment or change, together with all other amendments or
changes made, is to increase materially the obligations of the obligor
thereunder or to confer any additional rights on the holders of such
Subordinated Indebtedness (or a trustee or other representative on their behalf)
which would be adverse to Company or Lenders.
7.16 FISCAL YEAR
Company shall not change its Fiscal Year-end from the last Monday in
December of each calendar year.
SECTION 8. EVENTS OF DEFAULT
If any of the following conditions or events ("Events of Default")
shall occur:
8.1 FAILURE TO MAKE PAYMENTS WHEN DUE.
Failure by Company to pay any installment of principal of any Loan
when due, whether at stated maturity, by acceleration, by notice of voluntary
prepayment, by mandatory prepayment or otherwise; failure by Company to pay when
due any amount payable to an Issuing Lender in reimbursement of any drawing
under a Letter of Credit; or failure by Company to pay any interest on any Loan
or any fee or any other amount due under this Agreement within five days after
the date due; or
8.2 DEFAULT IN OTHER AGREEMENTS.
(i) Failure of Company or any of its Subsidiaries to pay when due any
principal of or interest on or any other amount payable in respect of one or
more items of Indebtedness (other than Indebtedness referred to in subsection
8.1) or Contingent Obligations in either an individual or an aggregate principal
amount of $500,000 or more, in each case beyond the end of any grace period
provided therefor; or (ii) breach or default by Company or any of its
Subsidiaries with respect to any other material term of (a) one or more items of
Indebtedness or Contingent Obligations in the individual or aggregate principal
amounts referred to in clause (i) above or (b) any loan agreement, mortgage,
indenture or other agreement relating to such item(s) of Indebtedness or
Contingent Obligation(s), if the effect of such breach or default is to cause,
or to permit the holder or holders of that Indebtedness or Contingent
Obligation(s) (or a trustee on behalf of such holder or holders) to cause, that
Indebtedness or Contingent Obligation(s) to become or be declared due and
payable prior to its stated maturity or the stated maturity of any underlying
obligation, as the case may be (upon the giving or receiving of notice, lapse of
time, both, or otherwise); or
8.3 BREACH OF CERTAIN COVENANTS.
Failure of Company to perform or comply with any term or condition
contained in subsection 2.5 or 6.2 or Section 7 of this Agreement; or
8.4 BREACH OF WARRANTY.
Any representation, warranty, certification or other statement made by
Company or any of its Subsidiaries in any Loan Document or in any statement or
certificate at any time given by Company or any of its Subsidiaries in writing
pursuant hereto or thereto or in connection herewith or therewith shall be false
in any material respect on the date as of which made; or
8.5 OTHER DEFAULTS UNDER LOAN DOCUMENTS.
Any Loan Party shall default in the performance of or compliance with
any term contained in this Agreement or any of the other Loan Documents, other
than any such term referred to in any other subsection of this Section 8, and
such default shall not have been remedied or waived within ten days after the
earlier of (i) an officer of Company or such Loan Party becoming aware of such
default or (ii) receipt by Company and such Loan Party of notice from any Agent
or any Lender of such default; or
8.6 INVOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) A court having jurisdiction in the premises shall enter a decree
or order for relief in respect of Company or any of its Subsidiaries in an
involuntary case under the Bankruptcy Code or under any other applicable
bankruptcy, insolvency or similar law now or hereafter in effect, which decree
or order is not stayed; or any other similar relief shall be granted under any
applicable federal or state law; or (ii) an involuntary case shall be commenced
against Company or any of its Subsidiaries under the Bankruptcy Code or under
any other applicable bankruptcy, insolvency or similar law now or hereafter in
effect; or a decree or order of a court having jurisdiction in the premises for
the appointment of a receiver, liquidator, sequestrator, trustee, custodian or
other officer having similar powers over Company or any of its Subsidiaries, or
over all or a substantial part of its property, shall have been entered; or
there shall have occurred the involuntary appointment of an interim receiver,
trustee or other custodian of Company or any of its Subsidiaries for all or a
substantial part of its property; or a warrant of attachment, execution or
similar process shall have been issued against any substantial part of the
property of Company or any of its Subsidiaries, and any such event described in
this clause (ii) shall continue for 60 days unless dismissed, bonded or
discharged; or
8 VOLUNTARY BANKRUPTCY; APPOINTMENT OF RECEIVER, ETC.
(i) Company or any of its Subsidiaries shall have an order for relief
entered with respect to it or commence a voluntary case under the Bankruptcy
Code or under any other applicable bankruptcy, insolvency or similar law now or
hereafter in effect, or shall consent to the entry of an order for relief in an
involuntary case, or to the conversion of an involuntary case to a voluntary
case, under any such law, or shall consent to the appointment of or taking
possession by a receiver, trustee or other custodian for all or a substantial
part of its property; or Company or any of its Subsidiaries shall make any
assignment for the benefit of creditors; or (ii) Company or any of its
Subsidiaries shall be unable, or shall fail generally, or shall admit in writing
its inability, to pay its debts as such debts become due; or the Board of
Directors of Company or any of its Subsidiaries (or any committee thereof) shall
adopt any resolution or otherwise authorize any action to approve any of the
actions referred to in clause (i) above or this clause (ii); or
8.8 JUDGMENTS AND ATTACHMENTS.
Any money judgment, writ or warrant of attachment or similar process
involving either in any individual case or in the aggregate at any time an
amount in excess of $500,000 (in either case not adequately covered by insurance
as to which a solvent and unaffiliated insurance company has acknowledged
coverage) shall be entered or filed against Company or any of its Subsidiaries
or any of their respective assets and shall remain undischarged, unvacated,
unbonded or unstayed for a period of 60 days (or in any event later than five
days prior to the date of any proposed sale thereunder); or
8.9 DISSOLUTION.
Any order, judgment or decree shall be entered against Company or any
of its Subsidiaries decreeing the dissolution or split up of Company or that
Subsidiary and such order shall remain undischarged or unstayed for a period in
excess of 30 days; or
8.10 EMPLOYEE BENEFIT PLANS.
There shall occur one or more ERISA Events which individually or in
the aggregate results in or might reasonably be expected to result in liability
of Company, any of its Subsidiaries or any of their respective ERISA Affiliates
in excess of $500,000 during the term of this Agreement; or there shall exist an
amount of unfunded benefit liabilities (as defined in Section 4001(a)(18) of
ERISA), individually or in the aggregate for all Pension Plans (excluding for
purposes of such computation any Pension Plans with respect to which assets
exceed benefit liabilities), which exceeds $500,000; or
8.11 MATERIAL ADVERSE EFFECT.
Any event or change shall occur that has caused or evidences, either
in any case or in the aggregate, a Material Adverse Effect; or
8.12 CHANGE IN CONTROL.
Any Person or any two or more Persons other than the Affiliated
Stockholder acting in concert shall have acquired beneficial ownership (within
the meaning of Rule 13d-3 of the Securities and Exchange Commission under the
Exchange Act), directly or indirectly, of Securities of Company (or other
Securities convertible into such Securities) representing 30% or more of the
combined voting power of all Securities of Company entitled to vote in the
election of directors, other than Securities having such power only by reason of
the happening of a contingency; or
INVALIDITY OF GUARANTIES; FAILURE OF SECURITY;
REPUDIATION OF OBLIGATIONS.
At any time after the execution and delivery thereof, (i) any Guaranty
for any reason, other than the satisfaction in full of all Obligations, shall
cease to be in full force and effect (other than in accordance with its terms)
or shall be declared to be null and void, (ii) any Collateral Document shall
cease to be in full force and effect (other than by reason of a release of
Collateral thereunder in accordance with the terms hereof or thereof, the
satisfaction in full of the Obligations or any other termination of such
Collateral Document in accordance with the terms hereof or thereof) or shall be
declared null and void, or Administrative Agent shall not have or shall cease to
have a valid and perfected First Priority Lien in any Collateral purported to be
covered thereby, in each case for any reason other than the failure of any Agent
or any Lender to take any action within its control, or (iii) any Loan Party
shall contest the validity or enforceability of any Loan Document in writing or
deny in writing that it has any further liability, including with respect to
future advances by Lenders, under any Loan Document to which it is a party:
THEN (i) upon the occurrence of any Event of Default described in subsection 8.6
or 8.7, each of (a) the unpaid principal amount of and accrued interest on the
Loans, (b) an amount equal to the maximum amount that may at any time be drawn
under all Letters of Credit then outstanding (whether or not any beneficiary
under any such Letter of Credit shall have presented, or shall be entitled at
such time to present, the drafts or other documents or certificates required to
draw under such Letter of Credit), and (c) all other Obligations shall
automatically become immediately due and payable, without presentment, demand,
protest or other requirements of any kind, all of which are hereby expressly
waived by Company, and the obligation of each Lender to make any Loan, the
obligation of Administrative Agent to issue any Letter of Credit and the right
of any Lender to issue any Letter of Credit hereunder shall thereupon terminate,
and (ii) upon the occurrence and during the continuation of any other Event of
Default, Administrative Agent shall, upon the written request or with the
written consent of Requisite Lenders, by written notice to Company, declare all
or any portion of the amounts described in clauses (a) through (c) above to be,
and the same shall forthwith become, immediately due and payable, and the
obligation of each Lender to make any Loan, the obligation of Administrative
Agent to issue any Letter of Credit and the right of any Lender to issue any
Letter of Credit hereunder shall thereupon terminate; provided that the
foregoing shall not affect in any way the obligations of Lenders under
subsection 3.3C(i) or the obligations of Lenders to purchase participations in
any unpaid Swing Line Loans as provided in subsection 2.1A(iv).
Any amounts described in clause (b) above, when received by
Administrative Agent, shall be held by Administrative Agent and applied as
follows: If for any reason the aggregate amount delivered by Company as
aforesaid is less than the amount described in clause (b) above (the "AGGREGATE
AVAILABLE AMOUNT"), the aggregate amount so delivered shall be apportioned among
all outstanding Letters of Credit in accordance with the ratio of the maximum
amount available for drawing under each such Letter of Credit (as to such Letter
of Credit, the "MAXIMUM AVAILABLE AMOUNT") to the Aggregate Available Amount.
Upon any drawing under any outstanding Letters of Credit in respect of which
Company has delivered to Administrative Agent any amounts described above,
Administrative Agent shall apply such amounts to reimburse the Issuing Lender
for the amount of such drawing. In the event of cancellation or expiration of
any Letter of Credit in respect of which Company has any amounts described
above, or in the event of any reduction in the Maximum Available Amount under
such Letter of Credit, Administrative Agent shall apply the amount then on
deposit with it in respect of such Letter of Credit (less, in the case of such a
reduction, the Maximum Available Amount under such Letter of Credit immediately
after such reduction) first, to the extent of any excess, to the cash
collateralization of any outstanding Letters of Credit in respect of which
Company has failed to pay all or a portion of the amounts described above (such
cash collateralization to be apportioned among all such Letters of Credit in the
manner described above), second, to the extent of any further excess, to the
payment of any other outstanding Obligations in such order as Administrative
Agent shall elect, and third, to the extent of any further excess, to the
payment to whomsoever shall be lawfully entitled to receive such funds.
Notwithstanding anything contained in the second preceding paragraph,
if at any time within 60 days after an acceleration of the Loans pursuant to
clause (ii) of such paragraph Company shall pay all arrears of interest and all
payments on account of principal which shall have become due otherwise than as a
result of such acceleration (with interest on principal and, to the extent
permitted by law, on overdue interest, at the rates specified in this Agreement)
and all Events of Default and Potential Events of Default (other than
non-payment of the principal of and accrued interest on the Loans, in each case
which is due and payable solely by virtue of acceleration) shall be remedied or
waived pursuant to subsection 10.6, then Requisite Lenders, by written notice to
Company, may at their option rescind and annul such acceleration and its
consequences; but such action shall not affect any subsequent Event of Default
or Potential Event of Default or impair any right consequent thereon. The
provisions of this paragraph are intended merely to bind Lenders to a decision
which may be made at the election of Requisite Lenders and are not intended,
directly or indirectly, to benefit Company, and such provisions shall not at any
time be construed so as to grant Company the right to require Lenders to rescind
or annul any acceleration hereunder or to preclude Administrative Agent or
Lenders from exercising any of the rights or remedies available to them under
any of the Loan Documents, even if the conditions set forth in this paragraph
are met.
SECTION 9. THE AGENTS
9.1 APPOINTMENT.
A. APPOINTMENT OF AGENTS. BIS is hereby appointed Administrative Agent
hereunder and under the other Loan Documents and each Lender hereby authorizes
Administrative Agent to act as its agent in accordance with the terms of this
Agreement and the other Loan Documents. DLJ is hereby appointed Syndication
Agent hereunder and under the other Loan Documents and each Lender hereby
authorizes Syndication Agent to act as its agent in accordance with the terms of
this Agreement and the other Loan Documents. Each of Syndication Agent and
Administrative Agent agrees to act upon the express conditions contained in this
Agreement and the other Loan Documents, as applicable. The provisions of this
Section 9 are solely for the benefit of each of Syndication Agent and
Administrative Agent, and Lenders and Company shall have no rights as a third
party beneficiary of any of the provisions thereof. In performing its functions
and duties under this Agreement, each of Syndication Agent and Administrative
Agent shall act solely as an agent of Lenders and does not assume and shall not
be deemed to have assumed any obligation towards or relationship of agency or
trust with or for Company or any of its Subsidiaries.
B. APPOINTMENT OF SUPPLEMENTAL COLLATERAL AGENTS. It is the purpose of this
Agreement and the other Loan Documents that there shall be no violation of any
law of any jurisdiction denying or restricting the right of banking corporations
or associations to transact business as agent or trustee in such jurisdiction.
It is recognized that in case of litigation under this Agreement or any of the
other Loan Documents, and in particular in case of the enforcement of any of the
Loan Documents, or in case Administrative Agent deems that by reason of any
present or future law of any jurisdiction it may not exercise any of the rights,
powers or remedies granted herein or in any of the other Loan Documents or take
any other action which may be desirable or necessary in connection therewith, it
may be necessary that Administrative Agent appoint an additional individual or
institution as a separate trustee, co-trustee, collateral agent or collateral
co-agent (any such additional individual or institution being referred to herein
individually as a "SUPPLEMENTAL COLLATERAL AGENT" and collectively as
"SUPPLEMENTAL COLLATERAL AGENTS").
In the event that Administrative Agent appoints a Supplemental
Collateral Agent with respect to any Collateral, (i) each and every right,
power, privilege or duty expressed or intended by this Agreement or any of the
other Loan Documents to be exercised by or vested in or conveyed to
Administrative Agent with respect to such Collateral shall be exercisable by and
vest in such Supplemental Collateral Agent to the extent, and only to the
extent, necessary to enable such Supplemental Collateral Agent to exercise such
rights, powers and privileges with respect to such Collateral and to perform
such duties with respect to such Collateral, and every covenant and obligation
contained in the Loan Documents and necessary to the exercise or performance
thereof by such Supplemental Collateral Agent shall run to and be enforceable by
either Administrative Agent or such Supplemental Collateral Agent, and (ii) the
provisions of this Section 9 and of subsections 10.2 and 10.3 that refer to
Administrative Agent shall inure to the benefit of such Supplemental Collateral
Agent and all references therein to Administrative Agent shall be deemed to be
references to Administrative Agent and/or such Supplemental Collateral Agent, as
the context may require.
Should any instrument in writing from Company or any other Loan Party
be required by any Supplemental Collateral Agent so appointed by Administrative
Agent for more fully and certainly vesting in and confirming to him or it such
rights, powers, privileges and duties, Company shall, or shall cause such Loan
Party to, execute, acknowledge and deliver any and all such instruments promptly
upon request by Administrative Agent. In case any Supplemental Collateral Agent,
or a successor thereto, shall die, become incapable of acting, resign or be
removed, all the rights, powers, privileges and duties of such Supplemental
Collateral Agent, to the extent permitted by law, shall vest in and be exercised
by Administrative Agent until the appointment of a new Supplemental Collateral
Agent.
9.2 POWERS AND DUTIES; GENERAL IMMUNITY.
A. POWERS; DUTIES SPECIFIED. Each Lender irrevocably authorizes each Agent
to take such action on such Lender's behalf and to exercise such powers, rights
and remedies hereunder and under the other Loan Documents as are specifically
delegated or granted to such Agent by the terms hereof and thereof, together
with such powers, rights and remedies as are reasonably incidental thereto. Each
Agent shall have only those duties and responsibilities that are expressly
specified in this Agreement and the other Loan Documents. Each Agent may
exercise such powers, rights and remedies and perform such duties by or through
its agents or employees. No Agent shall have, by reason of this Agreement or any
of the other Loan Documents, a fiduciary relationship in respect of any Lender;
and nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon any Agent any
obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein.
B. NO RESPONSIBILITY FOR CERTAIN MATTERS. No Agent shall be responsible to
any Lender for the execution, effectiveness, genuineness, validity,
enforceability, collectibility or sufficiency of this Agreement or any other
Loan Document or for any representations, warranties, recitals or statements
made herein or therein or made in any written or oral statements or in any
financial or other statements, instruments, reports or certificates or any other
documents furnished or made by such Agent to Lenders or by or on behalf of
Company to such Agent or any Lender in connection with the Loan Documents and
the transactions contemplated thereby or for the financial condition or business
affairs of Company or any other Person liable for the payment of any
Obligations, nor shall such Agent be required to ascertain or inquire as to the
performance or observance of any of the terms, conditions, provisions, covenants
or agreements contained in any of the Loan Documents or as to the use of the
proceeds of the Loans or the use of the Letters of Credit or as to the existence
or possible existence of any Event of Default or Potential Event of Default.
Anything contained in this Agreement to the contrary notwithstanding,
Administrative Agent shall not have any liability arising from confirmations of
the amount of outstanding Loans or the Letter of Credit Usage or the component
amounts thereof.
C. EXCULPATORY PROVISIONS. Neither of the Agents nor any of their
respective officers, directors, employees or agents shall be liable to Lenders
for any action taken or omitted by any such Agent under or in connection with
any of the Loan Documents except to the extent caused by such Agent's gross
negligence or willful misconduct. Each Agent shall be entitled to refrain from
any act or the taking of any action (including the failure to take an action) in
connection with this Agreement or any of the other Loan Documents or from the
exercise of any power, discretion or authority vested in it hereunder or
thereunder unless and until such Agent shall have received instructions in
respect thereof from Requisite Lenders (or such other Lenders as may be required
to give such instructions under subsection 10.6) and, upon receipt of such
instructions from Requisite Lenders (or such other Lenders, as the case may be),
such Agent shall be entitled to act or (where so instructed) refrain from
acting, or to exercise such power, discretion or authority, in accordance with
such instructions. Without prejudice to the generality of the foregoing, (i)
each Agent shall be entitled to rely, and shall be fully protected in relying,
upon any communication, instrument or document believed by it to be genuine and
correct and to have been signed or sent by the proper person or persons, and
shall be entitled to rely and shall be protected in relying on opinions and
judgments of attorneys (who may be attorneys for Company and its Subsidiaries),
accountants, experts and other professional advisors selected by it; and (ii) no
Lender shall have any right of action whatsoever against any Agent as a result
of such Agent acting or (where so instructed) refraining from acting under this
Agreement or any of the other Loan Documents in accordance with the instructions
of Requisite Lenders (or such other Lenders as may be required to give such
instructions under subsection 10.6).
D. AGENTS ENTITLED TO ACT AS LENDER. The agency hereby created shall in no
way impair or affect any of the rights and powers of, or impose any duties or
obligations upon, any Agent in its individual capacity as a Lender hereunder.
With respect to its participation in the Loans and the Letters of Credit, each
Agent shall have the same rights and powers hereunder as any other Lender and
may exercise the same as though it were not performing the duties and functions
delegated to it hereunder, and the term "Lender" or "Lenders" or any similar
term shall, unless the context clearly otherwise indicates, include such Agent
in its individual capacity. Any Agent and its Affiliates may accept deposits
from, lend money to and generally engage in any kind of banking, trust,
financial advisory or other business with Company or any of its Affiliates as if
it were not performing the duties specified herein, and may accept fees and
other consideration from Company for services in connection with this Agreement
and otherwise without having to account for the same to Lenders.
9.3 REPRESENTATIONS AND WARRANTIES; NO RESPONSIBILITY FOR
APPRAISAL OF CREDITWORTHINESS.
Each Lender represents and warrants that it has made its own
independent investigation of the financial condition and affairs of Company and
its Subsidiaries in connection with the making of the Loans and the issuance of
Letters of Credit hereunder and that it has made and shall continue to make its
own appraisal of the creditworthiness of Company and its Subsidiaries. No Agent
shall have any duty or responsibility, either initially or on a continuing
basis, to make any such investigation or any such appraisal on behalf of Lenders
or to provide any Lender with any credit or other information with respect
thereto, whether coming into its possession before the making of the Loans or at
any time or times thereafter, and no Agent shall have any responsibility with
respect to the accuracy of or the completeness of any information provided to
Lenders.
9.4 RIGHT TO INDEMNITY.
Each Lender, in proportion to its Pro Rata Share, severally agrees to
indemnify each Agent, to the extent that such Agent shall not have been
reimbursed by Company, for and against any and all liabilities, obligations,
losses, damages, penalties, actions, judgments, suits, costs, expenses
(including counsel fees and disbursements) or disbursements of any kind or
nature whatsoever which may be imposed on, incurred by or asserted against such
Agent in exercising its powers, rights and remedies or performing its duties
hereunder or under the other Loan Documents or otherwise in its capacity as
Administrative Agent or Syndication Agent, as the case may be, in any way
relating to or arising out of this Agreement or the other Loan Documents;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from any Agent's gross negligence or willful
misconduct. If any indemnity furnished to any Agent for any purpose shall, in
the opinion of such Agent, be insufficient or become impaired, such Agent may
call for additional indemnity and cease, or not commence, to do the acts
indemnified against until such additional indemnity is furnished.
9.5 SUCCESSOR AGENTS AND SWING LINE LENDER.
A. SUCCESSOR AGENTS. The Syndication Agent may resign at any time upon
one Business Days' prior notice thereof to Company and Administrative Agent.
Administrative Agent may resign at any time by giving 30 days' prior written
notice thereof to Syndication Agent, Lenders and Company, and Administrative
Agent may be removed at any time with or without cause by an instrument or
concurrent instruments in writing delivered to Company and Administrative Agent
and signed by Requisite Lenders. Upon any such notice of resignation of
Syndication Agent or Administrative Agent or any such removal of Administrative
Agent, Requisite Lenders shall have the right, upon five Business Days' notice
to Company, to appoint a successor Syndication Agent or Administrative Agent, as
the case may be. Upon the acceptance of any appointment as Administrative Agent
or Syndication Agent, as the case may be, hereunder by a successor
Administrative Agent or Syndication Agent, as the case may be, that successor
Administrative Agent or Syndication Agent, as the case may be, shall thereupon
succeed to and become vested with all the rights, powers, privileges and duties
of the retiring or removed Administrative Agent or Syndication Agent, as the
case may be, and the retiring or removed Administrative Agent or Syndication
Agent, as the case may be, shall be discharged from its duties and obligations
under this Agreement. After any retiring or removed Administrative Agent's or
Syndication Agent's resignation or removal hereunder as Administrative Agent or
Syndication Agent, as the case may be, the provisions of this Section 9 shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was Administrative Agent or Syndication Agent, as the case may be, under this
Agreement.
B. SUCCESSOR SWING LINE LENDER. Any resignation or removal of
Administrative Agent pursuant to subsection 9.5A shall also constitute the
resignation or removal of BIS or its successor as Swing Line Lender, and any
successor Administrative Agent appointed pursuant to subsection 9.5A shall, upon
its acceptance of such appointment, become the successor Swing Line Lender for
all purposes hereunder. In such event (i) Company shall prepay any outstanding
Swing Line Loans made by the retiring or removed Administrative Agent in its
capacity as Swing Line Lender, (ii) upon such prepayment, the retiring or
removed Administrative Agent and Swing Line Lender shall surrender the Swing
Line Note held by it to Company for cancellation, and (iii) Company shall issue
a new Swing Line Note to the successor Administrative Agent and Swing Line
Lender substantially in the form of Exhibit VII annexed hereto, in the principal
amount of the Swing Line Loan Commitment then in effect and with other
appropriate insertions.
9.6 COLLATERAL DOCUMENTS AND GUARANTIES.
Each Lender hereby further authorizes Administrative Agent, on behalf
of and for the benefit of Lenders, to enter into each Collateral Document as
secured party and to be the agent for and representative of Lenders under each
Guaranty, and each Lender agrees to be bound by the terms of each Collateral
Document and Guaranty; provided that Administrative Agent shall not (i) enter
into or consent to any material amendment, modification, termination or waiver
of any provision contained in any Collateral Document or Guaranty or (ii)
release any Collateral (except as otherwise expressly permitted or required
pursuant to the terms of this Agreement or the applicable Collateral Document),
in each case without the prior consent of Requisite Lenders (or, if required
pursuant to subsection 10.6, all Lenders); provided further, however, that,
without further written consent or authorization from Lenders, Administrative
Agent may execute any documents or instruments necessary to (a) release any Lien
encumbering any item of Collateral that is the subject of a sale or other
disposition of assets permitted by this Agreement or to which Requisite Lenders
have otherwise consented or (b) release any Subsidiary Guarantor from the
Subsidiary Guaranty if all of the capital stock of such Subsidiary Guarantor is
sold to any Person (other than an Affiliate of Company) pursuant to a sale or
other disposition permitted hereunder or to which Requisite Lenders have
otherwise consented. Anything contained in any of the Loan Documents to the
contrary notwithstanding, Company, each Agent and each Lender hereby agree that
(X) no Lender shall have any right individually to realize upon any of the
Collateral under any Collateral Document or to enforce any Guaranty, it being
understood and agreed that all rights and remedies under the Collateral
Documents and the Guaranties may be exercised solely by Administrative Agent for
the benefit of Lenders in accordance with the terms thereof, and (Y) in the
event of a foreclosure by Administrative Agent on any of the Collateral pursuant
to a public or private sale, any Agent or any Lender may be the purchaser of any
or all of such Collateral at any such sale and Administrative Agent, as agent
for and representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities unless Requisite Lenders shall otherwise agree
in writing) shall be entitled, for the purpose of bidding and making settlement
or payment of the purchase price for all or any portion of the Collateral sold
at any such public sale, to use and apply any of the Obligations as a credit on
account of the purchase price for any collateral payable by Administrative Agent
at such sale.
SECTION 10. MISCELLANEOUS
10.1 ASSIGNMENTS AND PARTICIPATIONS IN LOANS AND LETTERS
OF CREDIT.
A. GENERAL. Subject to subsection 10.1B, each Lender shall have the right
at any time to (i) sell, assign or transfer to any Eligible Assignee, or (ii)
sell participations to any Person in, all or any part of its Commitments or any
Loan or Loans made by it or its Letters of Credit or participations therein or
any other interest herein or in any other Obligations owed to it; provided that
no such sale, assignment, transfer or participation shall, without the consent
of Company, require Company to file a registration statement with the Securities
and Exchange Commission or apply to qualify such sale, assignment, transfer or
participation under the securities laws of any state; provided, further that no
such sale, assignment, transfer or participation of any Letter of Credit or any
participation therein may be made separately from a sale, assignment, transfer
or participation of a corresponding interest in the Revolving Loan Commitment
and the Revolving Loans of the Lender effecting such sale, assignment, transfer
or participation; and provided, further that, anything contained herein to the
contrary notwithstanding, the Swing Line Loan Commitment and the Swing Line
Loans of Swing Line Lender may not be sold, assigned or transferred as described
in clause (i) above to any Person other than a successor Administrative Agent
and Swing Line Lender to the extent contemplated by subsection 9.5. Except as
otherwise provided in this subsection 10.1, no Lender shall, as between Company
and such Lender, be relieved of any of its obligations hereunder as a result of
any sale, assignment or transfer of, or any granting of participations in, all
or any part of its Commitments or the Loans, the Letters of Credit or
participations therein, or the other Obligations owed to such Lender.
B. ASSIGNMENTS.
(i) Amounts and Terms of Assignments. Each Commitment, Loan, Letter of
Credit or participation therein, or other Obligation may (a) be assigned in
any amount to another Lender, or to an Affiliate of the assigning Lender or
another Lender, with the giving of notice to Company and Administrative
Agent or (b) be assigned in an aggregate amount of not less than $5,000,000
(or such lesser amount as shall constitute the aggregate amount of the
Commitments, Loans, Letters of Credit and participations therein, and other
Obligations of the assigning Lender or as may be consented to by Company
and Agents) to any other Eligible Assignee with the consent of Company and,
with respect to all Lenders other than DLJ, Syndication Agent and
Administrative Agent (which consent of Company, Syndication Agent and
Administrative Agent shall not be unreasonably withheld or delayed);
provided that any such assignment in accordance with either clause (a) or
(b) above shall effect a pro rata assignment (based on the respective
principal amounts thereof then outstanding or in effect) of each of (i) the
Tranche A Term Loan Commitment or the Tranche A Term Loan and the Revolving
Loan Commitment and the Revolving Loans, and (ii) the Tranche B Term Loan
Commitment or the Tranche B Term Loan, in each case of the assigning
Lender; provided, further that the minimum aggregate amount specified in
clause (b) above shall not apply to the Commitment, Loans, Letters of
Credit or participations therein or other Obligations of DLJ. To the extent
of any such assignment in accordance with either clause (a) or (b) above,
the assigning Lender shall be relieved of its obligations with respect to
its Commitments, Loans, Letters of Credit or participations therein, or
other Obligations or the portion thereof so assigned. The parties to each
such assignment shall execute and deliver to Administrative Agent, for its
acceptance, an Assignment Agreement, together with a processing fee of
$3,000 (to be assessed at Administrative Agent's election) and such forms,
certificates or other evidence, if any, with respect to United States
federal income tax withholding matters as the assignee under such
Assignment Agreement may be required to deliver to Administrative Agent
pursuant to subsection 2.7B(iii)(a). Upon such execution, delivery and
acceptance from and after the effective date specified in such Assignment
Agreement, (y) 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 Agreement, shall have the rights and
obligations of a Lender hereunder and (z) the assigning Lender thereunder
shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment Agreement, relinquish its rights
(other than any rights which survive the termination of this Agreement
under subsection 10.9B) and be released from its obligations under this
Agreement (and, in the case of an Assignment Agreement covering all or the
remaining portion of an assigning Lender's rights and obligations under
this Agreement, such Lender shall cease to be a party hereto; provided
that, anything contained in any of the Loan Documents to the contrary
notwithstanding, if such Lender is the Issuing Lender with respect to any
outstanding Letters of Credit such Lender shall continue to have all rights
and obligations of an Issuing Lender with respect to such Letters of Credit
until the cancellation or expiration of such Letters of Credit and the
reimbursement of any amounts drawn thereunder). The Commitments hereunder
shall be modified to reflect the Commitment of such assignee and any
remaining Commitment of such assigning Lender and, if any such assignment
occurs after the issuance of the Notes hereunder, the assigning Lender
shall, upon the effectiveness of such assignment or as promptly thereafter
as practicable, surrender its applicable Notes to Administrative Agent for
cancellation, and thereupon new Notes shall be issued to the assignee and
to the assigning Lender, substantially in the form of Exhibit IV, Exhibit V
or Exhibit VI annexed hereto, as the case may be, with appropriate
insertions, to reflect the new Commitments and/or outstanding Term Loans,
as the case may be, of the assignee and the assigning Lender.
(ii) Acceptance by Administrative Agent. Upon its receipt of an
Assignment Agreement executed by an assigning Lender and an assignee
representing that it is an Eligible Assignee, together with the processing
fee referred to in subsection 10.1B(i) and any forms, certificates or other
evidence with respect to United States federal income tax withholding
matters that such assignee may be required to deliver to Administrative
Agent pursuant to subsection 2.7B(iii)(a), Administrative Agent shall, if
Agents and Company have consented to the assignment evidenced thereby (in
each case to the extent such consent is required pursuant to subsection
10.1B(i)), (a) accept such Assignment Agreement by executing a counterpart
thereof as provided therein (which acceptance shall evidence any required
consent of Administrative Agent to such assignment) and (b) give prompt
notice thereof to Company. Administrative Agent shall maintain a copy of
each Assignment Agreement delivered to and accepted by it as provided in
this subsection 10.1B(ii).
C. PARTICIPATIONS. The holder of any participation, other than an Affiliate
of the Lender granting such participation, shall not be entitled to require such
Lender to take or omit to take any action hereunder except action directly
affecting (i) the extension of the scheduled final maturity date of any Loan
allocated to such participation or (ii) a reduction of the principal amount of
or the rate of interest payable on any Loan allocated to such participation, and
all amounts payable by Company hereunder (including amounts payable to such
Lender pursuant to subsections 2.6D, 2.7 and 3.6) shall be determined as if such
Lender had not sold such participation. Company and each Lender hereby
acknowledge and agree that, solely for purposes of subsections 10.4 and 10.5,
(a) any participation will give rise to a direct obligation of Company to the
participant and (b) the participant shall be considered to be a "Lender".
D. ASSIGNMENTS TO FEDERAL RESERVE BANKS. In addition to the assignments and
participations permitted under the foregoing provisions of this subsection 10.1,
any Lender may assign and pledge all or any portion of its Loans, the other
Obligations owed to such Lender, and its Notes to any Federal Reserve Bank as
collateral security pursuant to Regulation A of the Board of Governors of the
Federal Reserve System and any operating circular issued by such Federal Reserve
Bank; provided that (i) no Lender shall, as between Company and such Lender, be
relieved of any of its obligations hereunder as a result of any such assignment
and pledge and (ii) in no event shall such Federal Reserve Bank be considered to
be a "Lender" or be entitled to require the assigning Lender to take or omit to
take any action hereunder.
E. INFORMATION. Each Lender may furnish any information
concerning Company and its Subsidiaries in the possession of
that Lender from time to time to assignees and participants
(including prospective assignees and participants), subject to
subsection 10.19.
F. REPRESENTATIONS OF LENDERS. Each Lender listed on the signature pages
hereof hereby represents and warrants (i) that it is an Eligible Assignee
described in clause (A) of the definition thereof; (ii) that it has experience
and expertise in the making of loans such as the Loans; and (iii) that it will
make its Loans for its own account in the ordinary course of its business and
without a view to distribution of such Loans within the meaning of the
Securities Act or the Exchange Act or other federal securities laws (it being
understood that, subject to the provisions of this subsection 10.1, the
disposition of such Loans or any interests therein shall at all times remain
within its exclusive control). Each Lender that becomes a party hereto pursuant
to an Assignment Agreement shall be deemed to agree that the representations and
warranties of such Lender contained in Section 2(c) of such Assignment Agreement
are incorporated herein by this reference.
10.2 EXPENSES.
Whether or not the transactions contemplated hereby shall be
consummated, Company agrees to pay promptly (i) all the actual and reasonable
costs and expenses of preparation of the Loan Documents and any consents,
amendments, waivers or other modifications thereto; (ii) all the costs of
furnishing all opinions by counsel for Company (including any opinions requested
by Agents or Lenders as to any legal matters arising hereunder) and of Company's
performance of and compliance with all agreements and conditions on its part to
be performed or complied with under this Agreement and the other Loan Documents
including with respect to confirming compliance with environmental, insurance
and solvency requirements; (iii) the reasonable fees, expenses and disbursements
of counsel to Arranger, Syndication Agent and Administrative Agent (including
allocated costs of internal counsel) in connection with the negotiation,
preparation, execution and administration of the Loan Documents and any
consents, amendments, waivers or other modifications thereto and any other
documents or matters requested by Company; (iv) all the actual costs and
reasonable expenses of creating and perfecting Liens in favor of Administrative
Agent on behalf of Lenders pursuant to any Collateral Document, including filing
and recording fees, expenses and taxes, stamp or documentary taxes, search fees,
title insurance premiums, and reasonable fees, expenses and disbursements of
counsel to each of Syndication Agent and Administrative Agent and of counsel
providing any opinions that Syndication Agent, Administrative Agent or Requisite
Lenders may request in respect of the Collateral Documents or the Liens created
pursuant thereto; (v) all the actual costs and reasonable expenses (including
the reasonable fees, expenses and disbursements of any auditors, accountants or
appraisers and any environmental or other consultants, advisors and agents
employed or retained by Syndication Agent, Administrative Agent or their
respective counsel) of obtaining and reviewing any appraisals provided for under
subsection 4.1G or 6.9C, any environmental audits or reports provided for under
subsection 4.1H or 6.9B(ix) and any audits or reports provided for under
subsection 4.1F or 6.5B with respect to Inventory and accounts receivable of
Company and its Subsidiaries; (vi) the custody or preservation of any of the
Collateral; (vii) all other actual and reasonable costs and expenses incurred by
Arranger, Syndication Agent or Administrative Agent in connection with the
syndication of the Commitments and the negotiation, preparation and execution of
the Loan Documents and any consents, amendments, waivers or other modifications
thereto and the transactions contemplated thereby; and (viii) after the
occurrence of an Event of Default, all costs and expenses, including reasonable
attorneys' fees (including allocated costs of internal counsel) and costs of
settlement, incurred by Agents and Lenders in enforcing any Obligations of or in
collecting any payments due from any Loan Party hereunder or under the other
Loan Documents by reason of such Event of Default (including in connection with
the sale of, collection from, or other realization upon any of the Collateral or
the enforcement of the Guaranties or in connection with any refinancing or
restructuring of the credit arrangements provided under this Agreement in the
nature of a "work-out" or pursuant to any insolvency or bankruptcy proceedings.
10.3 INDEMNITY.
In addition to the payment of expenses pursuant to subsection 10.2,
whether or not the transactions contemplated hereby shall be consummated,
Company agrees to defend (subject to Indemnitees' selection of counsel),
indemnify, pay and hold harmless Arranger, Agents and Lenders, and the officers,
directors, employees, agents and affiliates of Arranger, Agents and Lenders
(collectively called the "INDEMNITEES"), from and against any and all
Indemnified Liabilities (as hereinafter defined); provided that Company shall
not have any obligation to any Indemnitee hereunder with respect to any
Indemnified Liabilities to the extent such Indemnified Liabilities arise solely
from the gross negligence or willful misconduct of that Indemnitee as determined
by a final judgment of a court of competent jurisdiction.
As used herein, "INDEMNIFIED LIABILITIES" means, collectively, any and
all liabilities, obligations, losses, damages (including natural resource
damages), penalties, actions, judgments, suits, claims (including Environmental
Claims), costs (including the costs of any investigation, study, sampling,
testing, abatement, cleanup, removal, remediation or other response action
necessary to remove, remediate, clean up or abate any Hazardous Materials
Activity), expenses and disbursements of any kind or nature whatsoever
(including the reasonable fees and disbursements of counsel for Indemnitees in
connection with any investigative, administrative or judicial proceeding
commenced or threatened by any Person, whether or not any such Indemnitee shall
be designated as a party or a potential party thereto, and any fees or expenses
incurred by Indemnitees in enforcing this indemnity), whether direct, indirect
or consequential and whether based on any federal, state or foreign laws,
statutes, rules or regulations (including securities and commercial laws,
statutes, rules or regulations and Environmental Laws), on common law or
equitable cause or on contract or otherwise, that may be imposed on, incurred
by, or asserted against any such Indemnitee, in any manner relating to or
arising out of (i) this Agreement or the other Loan Documents or the
transactions contemplated hereby or thereby (including Lenders' agreement to
make the Loans hereunder or the use or intended use of the proceeds thereof or
the issuance of Letters of Credit hereunder or the use or intended use of any
thereof, or any enforcement of any of the Loan Documents (including any sale of,
collection from, or other realization upon any of the Collateral or the
enforcement of the Guaranties), (ii) the statements contained in the commitment
letter delivered by any Lender to Company with respect thereto, or (iii) any
Environmental Claim or any Hazardous Materials Activity relating to or arising
from, directly or indirectly, any past or present activity, operation, land
ownership, or practice of Company or any of its Subsidiaries.
To the extent that the undertakings to defend, indemnify, pay and hold
harmless set forth in this subsection 10.3 may be unenforceable in whole or in
part because they are violative of any law or public policy, Company shall
contribute the maximum portion that it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of all Indemnified Liabilities
incurred by Indemnitees or any of them.
10.4 SET-OFF; SECURITY INTEREST IN DEPOSIT ACCOUNTS.
In addition to any rights now or hereafter granted under applicable
law and not by way of limitation of any such rights, upon the occurrence of any
Event of Default each Lender is hereby authorized by Company at any time or from
time to time, without notice to Company or to any other Person, any such notice
being hereby expressly waived, to set off and to appropriate and to apply any
and all deposits (general or special, including Indebtedness evidenced by
certificates of deposit, whether matured or unmatured, but not including trust
accounts) and any other Indebtedness at any time held or owing by that Lender to
or for the credit or the account of Company against and on account of the
obligations and liabilities of Company to that Lender under this Agreement, the
Letters of Credit and participations therein and the other Loan Documents,
including all claims of any nature or description arising out of or connected
with this Agreement, the Letters of Credit and participations therein or any
other Loan Document, irrespective of whether or not (i) that Lender shall have
made any demand hereunder or (ii) the principal of or the interest on the Loans
or any amounts in respect of the Letters of Credit or any other amounts due
hereunder shall have become due and payable pursuant to Section 8 and although
said obligations and liabilities, or any of them, may be contingent or
unmatured. Company hereby further grants to each Agent and each Lender a
security interest in all deposits and accounts maintained with such Agent or
such Lender as security for the Obligations.
10.5 RATABLE SHARING.
Lenders hereby agree among themselves that if any of them shall,
whether by voluntary payment (other than a voluntary prepayment of Loans made
and applied in accordance with the terms of this Agreement), by realization upon
security, through the exercise of any right of set-off or banker's lien, by
counterclaim or cross action or by the enforcement of any right under the Loan
Documents or otherwise, or as adequate protection of a deposit treated as cash
collateral under the Bankruptcy Code, receive payment or reduction of a
proportion of the aggregate amount of principal, interest, amounts payable in
respect of Letters of Credit, fees and other amounts then due and owing to that
Lender hereunder or under the other Loan Documents (collectively, the "AGGREGATE
AMOUNTS DUE" to such Lender) which is greater than the proportion received by
any other Lender in respect of the Aggregate Amounts Due to such other Lender,
then the Lender receiving such proportionately greater payment shall (i) notify
Administrative Agent and each other Lender of the receipt of such payment and
(ii) apply a portion of such payment to purchase participations (which it shall
be deemed to have purchased from each seller of a participation simultaneously
upon the receipt by such seller of its portion of such payment) in the Aggregate
Amounts Due to the other Lenders so that all such recoveries of Aggregate
Amounts Due shall be shared by all Lenders in proportion to the Aggregate
Amounts Due to them; provided that if all or part of such proportionately
greater payment received by such purchasing Lender is thereafter recovered from
such Lender upon the bankruptcy or reorganization of Company or otherwise, those
purchases shall be rescinded and the purchase prices paid for such
participations shall be returned to such purchasing Lender ratably to the extent
of such recovery, but without interest. Company expressly consents to the
foregoing arrangement and agrees that any holder of a participation so purchased
may exercise any and all rights of banker's lien, set-off or counterclaim with
respect to any and all monies owing by Company to that holder with respect
thereto as fully as if that holder were owed the amount of the participation
held by that holder.
10.6 AMENDMENTS AND WAIVERS.
No amendment, modification, termination or waiver of any provision of
this Agreement or of the Notes, and no consent to any departure by Company
therefrom, shall in any event be effective without the written concurrence of
Requisite Lenders; provided that any such amendment, modification, termination,
waiver or consent which: increases the amount of any of the Commitments or
reduces the principal amount of any of the Loans; changes in any manner the
definition of "Pro Rata Share" or the definition of "Requisite Lenders"; changes
in any manner any provision of this Agreement which, by its terms, expressly
requires the approval or concurrence of all Lenders; postpones the scheduled
final maturity date (but not the date of any scheduled installment of principal)
of any of the Loans; postpones the date on which any interest or any fees are
payable; decreases the interest rate borne by any of the Loans (other than any
waiver of any increase in the interest rate applicable to any of the Loans
pursuant to subsection 2.2E) or the amount of any fees payable hereunder;
increases the maximum duration of Interest Periods permitted hereunder; reduces
the amount or postpones the due date of any amount payable in respect of, or
extends the required expiration date of, any Letter of Credit; changes in any
manner the obligations of Lenders relating to the purchase of participations in
Letters of Credit; releases any Lien granted in favor of Administrative Agent
with respect to 25% or more in aggregate fair market value of the Collateral;
releases any Subsidiary Guarantor from its obligations under the Subsidiary
Guaranty or any Affiliated Stockholder from its obligations under the Affiliated
Stockholder Guaranty, in each case other than in accordance with the terms of
the Loan Documents; or changes in any manner the provisions contained in
subsection 8.1 or this subsection 10.6 shall be effective only if evidenced by a
writing signed by or on behalf of all Lenders; provided, further, that if any
matter described in the foregoing proviso relates only to a Revolving Loan or a
Tranche A Term Loan, the approval of all Lenders who hold Tranche A Term Loans
or hold Revolving Commitments shall be sufficient and, if any matter described
in the foregoing proviso relates only to a Tranche B Term Loan, the approval of
all Lenders who hold Tranche B Term Loans shall be sufficient. In addition, (i)
any amendment, modification, termination or waiver of any of the provisions
contained in Section 4 shall be effective only if evidenced by a writing signed
by or on behalf of Agents and Requisite Lenders, (ii) no amendment,
modification, termination or waiver of any provision of any Note shall be
effective without the written concurrence of the Lender which is the holder of
that Note, (iii) no amendment, modification, termination or waiver of any
provision of subsection 2.1A(iv) or of any other provision of this Agreement
relating to the Swing Line Loan Commitment or the Swing Line Loans shall be
effective without the written concurrence of Swing Line Lender, and (iv) no
amendment, modification, termination or waiver of any provision of Section 9 or
of any other provision of this Agreement which, by its terms, expressly requires
the approval or concurrence of Agents shall be effective without the written
concurrence of Agents. Administrative Agent may, but shall have no obligation
to, with the concurrence of any Lender, execute amendments, modifications,
waivers or consents on behalf of that Lender. Any waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
it was given. No notice to or demand on Company in any case shall entitle
Company to any other or further notice or demand in similar or other
circumstances. Any amendment, modification, termination, waiver or consent
effected in accordance with this subsection 10.6 shall be binding upon each
Lender at the time outstanding, each future Lender and, if signed by Company, on
Company.
INDEPENDENCE OF COVENANTS.
All covenants hereunder shall be given independent effect so that if a
particular action or condition is not permitted by any of such covenants, the
fact that it would be permitted by an exception to, or would otherwise be within
the limitations of, another covenant shall not avoid the occurrence of an Event
of Default or Potential Event of Default if such action is taken or condition
exists.
10.8 NOTICES.
Unless otherwise specifically provided herein, any notice or other
communication herein required or permitted to be given shall be in writing and
may be personally served, telexed or sent by telefacsimile or United States mail
or courier service and shall be deemed to have been given when delivered in
person or by courier service, upon receipt of telefacsimile or telex, or three
Business Days after depositing it in the United States mail with postage prepaid
and properly addressed; provided that notices to Agents shall not be effective
until received. For the purposes hereof, the address of each party hereto shall
be as set forth under such party's name on the signature pages hereof or (i) as
to Company and Agents, such other address as shall be designated by such Person
in a written notice delivered to the other parties hereto and (ii) as to each
other party, such other address as shall be designated by such party in a
written notice delivered to Administrative Agent.
10.9 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND
AGREEMENTS.
A. All representations, warranties and agreements made herein shall
survive the execution and delivery of this Agreement and the making of the Loans
and the issuance of the Letters of Credit hereunder.
B. Notwithstanding anything in this Agreement or implied by law to the
contrary, the agreements of Company set forth in subsections 2.6D, 2.7, 3.5A,
3.6, 10.2, 10.3 and 10.4 and the agreements of Lenders set forth in subsections
9.2C, 9.4 and 10.5 shall survive the payment of the Loans, the cancellation or
expiration of the Letters of Credit and the reimbursement of any amounts drawn
thereunder, and the termination of this Agreement.
10.10 FAILURE OR INDULGENCE NOT WAIVER; REMEDIES
CUMULATIVE.
No failure or delay on the part of any Agent or any Lender in the
exercise of any power, right or privilege hereunder or under any other Loan
Document shall impair such power, right or privilege or be construed to be a
waiver of any default or acquiescence therein, nor shall any single or partial
exercise of any such power, right or privilege preclude other or further
exercise thereof or of any other power, right or privilege. All rights and
remedies existing under this Agreement and the other Loan Documents are
cumulative to, and not exclusive of, any rights or remedies otherwise available.
10.11 MARSHALLING; PAYMENTS SET ASIDE.
None of Agents or Lenders shall be under any obligation to marshal any
assets in favor of Company or any other party or against or in payment of any or
all of the Obligations. To the extent that Company makes a payment or payments
to Administrative Agent or Lenders (or to Administrative Agent for the benefit
of Lenders), or any of Agents or Lenders enforce any security interests or
exercise their rights of setoff, and such payment or payments or the proceeds of
such enforcement or setoff or any part thereof are subsequently invalidated,
declared to be fraudulent or preferential, set aside and/or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law, any
other state or federal law, common law or any equitable cause, then, to the
extent of such recovery, the obligation or part thereof originally intended to
be satisfied, and all Liens, rights and remedies therefor or related thereto,
shall be revived and continued in full force and effect as if such payment or
payments had not been made or such enforcement or setoff had not occurred.
10.12 SEVERABILITY.
In case any provision in or obligation under this Agreement or the
Notes shall be invalid, illegal or unenforceable in any jurisdiction, the
validity, legality and enforceability of the remaining provisions or
obligations, or of such provision or obligation in any other jurisdiction, shall
not in any way be affected or impaired thereby.
10.13 OBLIGATIONS SEVERAL; INDEPENDENT NATURE OF LENDERS'
RIGHTS.
The obligations of Lenders hereunder are several and no Lender shall
be responsible for the obligations or Commitments of any other Lender hereunder.
Nothing contained herein or in any other Loan Document, and no action taken by
Lenders pursuant hereto or thereto, shall be deemed to constitute Lenders as a
partnership, an association, a joint venture or any other kind of entity. The
amounts payable at any time hereunder to each Lender shall be a separate and
independent debt, and each Lender shall be entitled to protect and enforce its
rights arising out of this Agreement and it shall not be necessary for any other
Lender to be joined as an additional party in any proceeding for such purpose.
10.14 HEADINGS.
Section and subsection headings in this Agreement are included herein
for convenience of reference only and shall not constitute a part of this
Agreement for any other purpose or be given any substantive effect.
10.15 APPLICABLE LAW.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 OF THE
GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS
OF LAWS PRINCIPLES.
10.16 SUCCESSORS AND ASSIGNS.
This Agreement shall be binding upon the parties hereto and their
respective successors and assigns and shall inure to the benefit of the parties
hereto and the successors and assigns of Lenders (it being understood that
Lenders' rights of assignment are subject to subsection 10.1). Neither Company's
rights or obligations hereunder nor any interest therein may be assigned or
delegated by Company without the prior written consent of all Lenders.
10.17 CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST COMPANY ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY OTHER LOAN DOCUMENT, OR ANY OBLIGATIONS
THEREUNDER, MAY BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT
JURISDICTION IN THE STATE, COUNTY AND CITY OF NEW YORK. BY EXECUTING AND
DELIVERING THIS AGREEMENT, COMPANY, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN ANY
SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN RECEIPT
REQUESTED, TO COMPANY AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH SUBSECTION
10.8;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER COMPANY IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT LENDERS RETAIN THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING
PROCEEDINGS AGAINST COMPANY IN THE COURTS OF ANY OTHER
JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SUBSECTION 10.17 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402 OR
OTHERWISE.
10.18 WAIVER OF JURY TRIAL.
EACH OF THE PARTIES TO THIS AGREEMENT HEREBY AGREES TO WAIVE ITS
RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR
ARISING OUT OF THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS OR ANY DEALINGS
BETWEEN THEM RELATING TO THE SUBJECT MATTER OF THIS LOAN TRANSACTION OR THE
LENDER/BORROWER RELATIONSHIP THAT IS BEING ESTABLISHED. The scope of this waiver
is intended to be all-encompassing of any and all disputes that may be filed in
any court and that relate to the subject matter of this transaction, including
contract claims, tort claims, breach of duty claims and all other common law and
statutory claims. Each party hereto acknowledges that this waiver is a material
inducement to enter into a business relationship, that each has already relied
on this waiver in entering into this Agreement, and that each will continue to
rely on this waiver in their related future dealings. Each party hereto further
warrants and represents that it has reviewed this waiver with its legal counsel
and that it knowingly and voluntarily waives its jury trial rights following
consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING THAT IT MAY
NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL WRITTEN
WAIVER SPECIFICALLY REFERRING TO THIS SUBSECTION 10.18 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT OR ANY OF THE OTHER
LOAN DOCUMENTS OR TO ANY OTHER DOCUMENTS OR AGREEMENTS RELATING TO THE LOANS
MADE HEREUNDER. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
10.19 CONFIDENTIALITY.
Each Lender shall hold all non-public information obtained pursuant to
the requirements of this Agreement which has been identified as confidential by
Company in accordance with such Lender's customary procedures for handling
confidential information of this nature and in accordance with safe and sound
banking practices, it being understood and agreed by Company that in any event a
Lender may make disclosures to Affiliates of such Lender or disclosures
reasonably required by any bona fide assignee, transferee or participant in
connection with the contemplated assignment or transfer by such Lender of any
Loans or any participations therein or disclosures required or requested by any
governmental agency or representative thereof or pursuant to legal process;
provided that, unless specifically prohibited by applicable law or court order,
each Lender shall notify Company of any request by any governmental agency or
representative thereof (other than any such request in connection with any
examination of the financial condition of such Lender by such governmental
agency) for disclosure of any such non-public information prior to disclosure of
such information; and provided, further that in no event shall any Lender be
obligated or required to return any materials furnished by Company or any of its
Subsidiaries.
10.20 COUNTERPARTS; EFFECTIVENESS.
This Agreement and any amendments, waivers, consents or supplements
hereto or in connection herewith may be executed in any number of counterparts
and by different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Agreement shall become effective upon the execution of a
counterpart hereof by each of the parties hereto and receipt by Company and
Agents of written or telephonic notification of such execution and authorization
of delivery thereof.
[Remainder of page intentionally left blank]
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
HOULIHAN'S RESTAURANTS, INC.
By:
Frederick R. Hipp
President and
Chief Executive Officer
Notice Address:
Two Brush Creek Boulevard
Kansas City, MO 64112
Attention: General Counsel
<PAGE>
LENDERS:
DLJ CAPITAL FUNDING, INC.,
individually and as Syndication Agent
By:
Title:
Notice Address:
2121 Avenue of the Stars
Los Angeles, CA 90067-5014
Attention: Eric Swanson
<PAGE>
BANQUE INDOSUEZ, New York Branch,
individually and as Administrative
Agent
By:
Title:
By:
Title:
Notice Address:
1211 Avenue of the Americas
7th Floor
New York, NY 10036
Attention: Andrew Marshak
<PAGE>
CREDIT LYONNAIS Chicago Branch,
individually and as Documentation
Agent
By:
Title:
Notice Address:
227 W. Monroe, Suite 3800
Chicago, IL 60606
Attention: Peter Kelly
<PAGE>
THE FIRST NATIONAL BANK OF BOSTON
By:
Title:
By:
Title:
Notice Address:
100 Federal Street
MS 01-09-05
Boston, MA 02106
Attention: Rodney L. Guinn
<PAGE>
MERCANTILE BANK
By:
Title:
Notice Address:
1101 Walnut, 7th Floor
Kansas City, MO 64108
Attention: Monte Smith
<PAGE>
PRIME INCOME TRUST
By:
Title:
Notice Address:
Two World Trade Center
72nd Floor
New York, NY 10048
Attention: Louis Pistecchia
<PAGE>
CITIBANK, N.A.
By:
Title:
Notice Address:
399 Park Ave.
Ninth Floor-Zone 8
New York, NY 10043
Attention: Hans Christensen
<PAGE>
KZH HOLDING CORPORATION
By:
Title:
Notice Address:
c/o The Chase Manhattan Bank
450 West 33rd St., 15th Floor
New York, NY 10001
Attention: Robert Goodwin
with copy to:
SAI Investment Advisor, Inc.
Sun America Center - 34th Floor
Los Angeles, CA 90067-6022
Attention: Sabur Moini
<PAGE>
DRAFT
04/09/97
U.S. $90,000,000
AMENDED AND RESTATED CREDIT AGREEMENT
DATED AS OF APRIL 15, 1997
AMONG
HOULIHAN'S RESTAURANTS, INC.,
AS BORROWER,
THE LENDERS LISTED HEREIN,
AS LENDERS,
DLJ CAPITAL FUNDING, INC.,
AS SYNDICATION AGENT,
BANQUE INDOSUEZ, NEW YORK BRANCH,
AS ADMINISTRATIVE AGENT,
AND
CREDIT LYONNAIS CHICAGO BRANCH,
AS DOCUMENTATION AGENT
ARRANGED BY:
DONALDSON, LUFKIN & JENRETTE SECURITIES CORPORATION
<PAGE>
HOULIHAN'S RESTAURANTS, INC.
AMENDED AND RESTATED CREDIT AGREEMENT
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS. . . . . . . . . . . . . . . . . . 3
1.1 Certain Defined Terms . . . . . . . . . . . . . . . 3
1.2 Accounting Terms; Utilization of GAAP for
Purposes of Calculations Under Agreement. . . . . . 31
1.3 Other Definitional Provisions and Rules of
Construction. . . . . . . . . . . . . . . . . . . . 32
SECTION 2. AMOUNTS AND TERMS OF COMMITMENTS AND LOANS . . 32
2.1 Commitments; Making of Loans; Notes . . . . . . . . 32
2.2 Interest on the Loans . . . . . . . . . . . . . . . 40
2.3 Fees. . . . . . . . . . . . . . . . . . . . . . . . 44
2.4 Repayments, Prepayments and Reductions in
Revolving Loan Commitments; General Provisions
Regarding Payments. . . . . . . . . . . . . . . . . 45
2.5 Use of Proceeds . . . . . . . . . . . . . . . . . . 54
2.6 Special Provisions Governing Eurodollar Rate
Loans . . . . . . . . . . . . . . . . . . . . . . . 54
2.7 Increased Costs; Taxes; Capital Adequacy. . . . . . 57
2.8 Obligation of Lenders and Issuing Lenders to
Mitigate. . . . . . . . . . . . . . . . . . . . . . 61
SECTION 3. LETTERS OF CREDIT. . . . . . . . . . . . . . . 62
3.1 Issuance of Letters of Credit and Lenders'
Purchase of Participations Therein. . . . . . . . . 62
3.2 Letter of Credit Fees . . . . . . . . . . . . . . . 65
3.3 Drawings and Reimbursement of Amounts Paid Under
Letters of Credit.. . . . . . . . . . . . . . . . . 66
3.4 Obligations Absolute. . . . . . . . . . . . . . . . 69
3.5 Indemnification; Nature of Issuing Lenders'
Duties. . . . . . . . . . . . . . . . . . . . . . . 70
3.6 Increased Costs and Taxes Relating to Letters of
Credit. . . . . . . . . . . . . . . . . . . . . . . 71
SECTION 4. CONDITIONS TO LOANS AND LETTERS OF CREDIT. . . 73
4.1 Conditions to Term Loans and Initial Revolving
Loans and Swing Line Loans. . . . . . . . . . . . . 73
4.2 Conditions to All Loans . . . . . . . . . . . . . . 79
4.3 Conditions to Letters of Credit . . . . . . . . . . 80
4.4 Items to be Delivered After the Closing Date. . . . 81
SECTION 5. COMPANY'S REPRESENTATIONS AND WARRANTIES . . . 81
5.1 Organization, Powers, Qualification, Good
Standing, Business and Subsidiaries . . . . . . . . 81
5.2 Authorization of Borrowing, etc.. . . . . . . . . . 82
5.3 Financial Condition . . . . . . . . . . . . . . . . 83
5.4 No Material Adverse Change; No Restricted Junior
Payments. . . . . . . . . . . . . . . . . . . . . . 83
5.5 Title to Properties; Liens; Real Property . . . . . 84
5.6 Litigation; Adverse Facts . . . . . . . . . . . . . 84
5.7 Payment of Taxes. . . . . . . . . . . . . . . . . . 85
5.8 Performance of Agreements; Materially Adverse
Agreements; Material Contracts. . . . . . . . . . . 85
5.9 Governmental Regulation . . . . . . . . . . . . . . 85
5.10 Securities Activities. . . . . . . . . . . . . 86
5.11 Employee Benefit Plans . . . . . . . . . . . . 86
5.12 Certain Fees . . . . . . . . . . . . . . . . . 87
5.13 Environmental Protection . . . . . . . . . . . 87
5.14 Employee Matters . . . . . . . . . . . . . . . 88
5.15 Solvency . . . . . . . . . . . . . . . . . . . 88
5.16 Matters Relating to Collateral . . . . . . . . 88
5.17 Disclosure . . . . . . . . . . . . . . . . . . 89
SECTION 6. COMPANY'S AFFIRMATIVE COVENANTS. . . . . . . . 90
6.1 Financial Statements and Other Reports. . . . . . . 90
6.2 Corporate Existence, etc. . . . . . . . . . . . . . 96
6.3 Payment of Taxes and Claims; Tax Consolidation. . . 97
6.4 Maintenance of Properties; Insurance;
Application of Net Insurance/ Condemnation
Proceeds. . . . . . . . . . . . . . . . . . . . . . 97
6.5 Inspection Rights; Audits of Inventory and
Accounts Receivable; Lender Meeting . . . . . . . . 98
6.6 Compliance with Laws, etc.. . . . . . . . . . . . . 98
6.7 Environmental Review and Investigation,
Disclosure, Etc.; Company's Actions Regarding
Hazardous Materials Activities, Environmental
Claims and Violations of Environmental Laws . . . . 99
6.8 Execution of Subsidiary Guaranty and Personal
Property Collateral Documents by Certain
Subsidiaries and Future Subsidiaries; Execution
of Affiliated Stockholder Pledge Agreement by
Future Affiliated Stockholders; IP Collateral . . .101
6.9 Conforming Leasehold Interests; Matters Relating
to Additional Real Property Collateral. . . . . . .103
6.10 Interest Rate Protection . . . . . . . . . . .105
6.11 Escrow Account . . . . . . . . . . . . . . . .105
6.12 Recapitalization Fees. . . . . . . . . . . . .106
SECTION 7. COMPANY'S NEGATIVE COVENANTS . . . . . . . . .106
7.1 Indebtedness. . . . . . . . . . . . . . . . . . . .106
7.2 Liens and Related Matters . . . . . . . . . . . . .107
7.3 Investments; Joint Ventures . . . . . . . . . . . .108
7.4 Contingent Obligations. . . . . . . . . . . . . . .109
7.5 Restricted Junior Payments. . . . . . . . . . . . .110
7.6 Financial Covenants . . . . . . . . . . . . . . . .110
7.7 Restriction on Fundamental Changes; Asset Sales
and Acquisitions. . . . . . . . . . . . . . . . . .114
7.8 Consolidated Capital Expenditures . . . . . . . . .115
7.9 Restriction on Leases . . . . . . . . . . . . . . .116
7.10 Sales and Lease-Backs. . . . . . . . . . . . .117
7.11 Sale or Discount of Receivables. . . . . . . .117
7.12 Transactions with Shareholders and
Affiliates. . . . . . . . . . . . . . . . . . . . .118
7.13 Disposal of Subsidiary Stock . . . . . . . . .118
7.14 Conduct of Business. . . . . . . . . . . . . .118
7.15 Amendments of Documents Relating to
Subordinated Indebtedness. . . . . . . . . . .118
7.16 Fiscal Year. . . . . . . . . . . . . . . . . .119
SECTION 8. EVENTS OF DEFAULT. . . . . . . . . . . . . . .119
8.1 Failure to Make Payments When Due . . . . . . . . .119
8.2 Default in Other Agreements . . . . . . . . . . . .119
8.3 Breach of Certain Covenants . . . . . . . . . . . .120
8.4 Breach of Warranty. . . . . . . . . . . . . . . . .120
8.5 Other Defaults Under Loan Documents . . . . . . . .120
8.6 Involuntary Bankruptcy; Appointment of Receiver,
etc.. . . . . . . . . . . . . . . . . . . . . . . .120
8.7 Voluntary Bankruptcy; Appointment of Receiver,
etc.. . . . . . . . . . . . . . . . . . . . . . . .121
8.8 Judgments and Attachments . . . . . . . . . . . . .121
8.9 Dissolution . . . . . . . . . . . . . . . . . . . .121
8.10 Employee Benefit Plans . . . . . . . . . . . .121
8.11 Material Adverse Effect. . . . . . . . . . . .122
8.12 Change in Control. . . . . . . . . . . . . . .122
8.13 Invalidity of Guaranties; Failure of
Security; Repudiation of Obligations . . . . .122
SECTION 9. THE AGENTS . . . . . . . . . . . . . . . . . .124
9.1 Appointment . . . . . . . . . . . . . . . . . . . .124
9.2 Powers and Duties; General Immunity . . . . . . . .126
9.3 Representations and Warranties; No
Responsibility For Appraisal of Creditworthiness. .127
9.4 Right to Indemnity. . . . . . . . . . . . . . . . .128
9.5 Successor Agents and Swing Line Lender. . . . . . .128
9.6 Collateral Documents and Guaranties . . . . . . . .129
SECTION 10. MISCELLANEOUS. . . . . . . . . . . . . . . . .130
10.1 Assignments and Participations in Loans and
Letters of Credit. . . . . . . . . . . . . . .130
10.2 Expenses . . . . . . . . . . . . . . . . . . .133
10.3 Indemnity. . . . . . . . . . . . . . . . . . .134
10.4 Set-Off; Security Interest in Deposit
Accounts. . . . . . . . . . . . . . . . . . . . . .135
10.5 Ratable Sharing. . . . . . . . . . . . . . . .136
10.6 Amendments and Waivers . . . . . . . . . . . .137
10.7 Independence of Covenants. . . . . . . . . . .138
10.8 Notices. . . . . . . . . . . . . . . . . . . .138
10.9 Survival of Representations, Warranties and
Agreements. . . . . . . . . . . . . . . . . . . . .138
10.10 Failure or Indulgence Not Waiver; Remedies
Cumulative. . . . . . . . . . . . . . . . . . . . .139
10.11 Marshalling; Payments Set Aside. . . . . . . .139
10.12 Severability . . . . . . . . . . . . . . . . .139
10.13 Obligations Several; Independent Nature of
Lenders' Rights . . . . . . . . . . . . . . . . . .139
10.14 Headings . . . . . . . . . . . . . . . . . . .140
10.15 Applicable Law . . . . . . . . . . . . . . . .140
10.16 Successors and Assigns . . . . . . . . . . . .140
10.17 Consent to Jurisdiction and Service of
Process . . . . . . . . . . . . . . . . . . . . . .140
10.18 Waiver of Jury Trial . . . . . . . . . . . . .141
10.19 Confidentiality. . . . . . . . . . . . . . . .142
10.20 Counterparts; Effectiveness. . . . . . . . . .142
Signature pages . . . . . . . . . . . . . . . . . .S-1
<PAGE>
EXHIBITS
I FORM OF NOTICE OF BORROWING
II FORM OF NOTICE OF CONVERSION/CONTINUATION
III FORM OF NOTICE OF ISSUANCE OF LETTER OF CREDIT
IV FORM OF TRANCHE A TERM NOTE
V FORM OF TRANCHE B TERM NOTE
VI FORM OF REVOLVING NOTE
VII FORM OF SWING LINE NOTE
VIII FORM OF COMPLIANCE CERTIFICATE
IX FORM OF OPINION OF BRYAN CAVE LLP
X FORM OF OPINION OF O'MELVENY & MYERS LLP
XI FORM OF ASSIGNMENT AGREEMENT
XII FORM OF AFFILIATED STOCKHOLDER LIMITED GUARANTY AND
PLEDGE AGREEMENT
XIII FORM OF CERTIFICATE RE NON-BANK STATUS
XIV FORM OF COMPANY COPYRIGHT SECURITY AGREEMENT
XV FORM OF COMPANY PLEDGE AGREEMENT
XVI FORM OF COMPANY SECURITY AGREEMENT
XVII FORM OF COMPANY TRADEMARK SECURITY AGREEMENT
XVIII FORM OF SUBSIDIARY GUARANTY
XIX FORM OF SUBSIDIARY PLEDGE AGREEMENT
XX FORM OF SUBSIDIARY SECURITY AGREEMENT
XXI FORM OF HOLDINGS PLEDGE AGREEMENT
XXII FORM OF HOLDINGS GUARANTY
XXIII FORM OF MORTGAGE
XXIV FORM OF SOLVENCY CERTIFICATE
XXV FORM OF LOCAL COUNSEL OPINION
<PAGE>
SCHEDULES
2.1 LENDERS' COMMITMENTS AND PRO RATA SHARES
4.1D CLOSING DATE MORTGAGED PROPERTIES
4.1H CLOSING DATE ENVIRONMENTAL REPORTS
5.1 SUBSIDIARIES OF COMPANY
5.5 REAL PROPERTY
5.6 LITIGATION
5.8 MATERIAL CONTRACTS
5.11 CERTAIN EMPLOYEE BENEFIT PLANS
5.13 ENVIRONMENTAL MATTERS
7.1 CERTAIN EXISTING INDEBTEDNESS
7.2 CERTAIN EXISTING LIENS
7.3 CERTAIN EXISTING INVESTMENTS
7.4 CERTAIN EXISTING CONTINGENT OBLIGATIONS
7.12 AFFILIATE TRANSACTIONS
<TABLE> <S> <C>
<ARTICLE> 5
<LEGEND>
This schedule contains summary financial information extracted from the
Company's Annual Report on Form 10-K and is qualified in its entirety by
reference to such 10-K.
</LEGEND>
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> YEAR
<FISCAL-YEAR-END> DEC-30-1996
<PERIOD-END> DEC-30-1996
<CASH> 15,620
<SECURITIES> 0
<RECEIVABLES> 1,252
<ALLOWANCES> 0
<INVENTORY> 2,455
<CURRENT-ASSETS> 25,309
<PP&E> 152,076
<DEPRECIATION> 46,595
<TOTAL-ASSETS> 195,675
<CURRENT-LIABILITIES> 31,491
<BONDS> 71,594
0
0
<COMMON> 100
<OTHER-SE> 75,289
<TOTAL-LIABILITY-AND-EQUITY> 195,675
<SALES> 274,836
<TOTAL-REVENUES> 274,836
<CGS> 229,751
<TOTAL-COSTS> 261,847
<OTHER-EXPENSES> 1,449
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 6,973
<INCOME-PRETAX> 9,289
<INCOME-TAX> 4,092
<INCOME-CONTINUING> 5,197
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 5,197
<EPS-PRIMARY> 0.52
<EPS-DILUTED> 0.52
</TABLE>
