Exhibit
10.1
Execution Version
Published CUSIP Number:
Revolving Credit CUSIP Number:
Term Loan CUSIP Number:
CREDIT AGREEMENT
dated as of June 29, 2010
by and among
JACK IN THE BOX INC.,
as Borrower,
the Lenders referred to herein,
as Lenders,
BANK OF AMERICA, N.A.
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Syndication Agents,
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. RABOBANK
INTERNATIONAL NEW YORK BRANCH,
as Documentation Agent,
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
WELLS FARGO SECURITIES, LLC,
BANC OF AMERICA SECURITIES LLC,
and
MORGAN STANLEY SENIOR FUNDING, INC.,
as Joint Lead Arrangers and Joint Lead Bookrunners
TABLE OF CONTENTS
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ARTICLE I
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DEFINITIONS
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SECTION 1.1. |
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Definitions |
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1 |
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SECTION 1.2. |
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Other Definitions and Provisions |
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26 |
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SECTION 1.3. |
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Accounting Terms |
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27 |
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SECTION 1.4. |
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UCC Terms |
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27 |
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SECTION 1.5. |
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Rounding |
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27 |
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SECTION 1.6. |
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References to Agreement and Laws |
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27 |
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SECTION 1.7. |
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Times of Day |
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27 |
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SECTION 1.8. |
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Letter of Credit Amounts |
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27 |
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ARTICLE II
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REVOLVING CREDIT FACILITY
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SECTION 2.1. |
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Revolving Credit Loans |
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28 |
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SECTION 2.2. |
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Swingline Loans |
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28 |
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SECTION 2.3. |
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Procedure for Advances of Revolving Credit and Swingline Loans |
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30 |
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SECTION 2.4. |
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Repayment of Revolving Credit and Swingline Loans |
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31 |
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SECTION 2.5. |
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Permanent Reduction of the Revolving Credit Commitment |
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32 |
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SECTION 2.6. |
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Termination of Revolving Credit Facility |
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33 |
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ARTICLE III
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LETTER OF CREDIT FACILITY
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SECTION 3.1. |
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L/C Commitment |
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33 |
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SECTION 3.2. |
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Procedure for Issuance of Letters of Credit |
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34 |
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SECTION 3.3. |
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Commissions and Other Charges |
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35 |
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SECTION 3.4. |
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L/C Participations |
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35 |
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SECTION 3.5. |
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Reimbursement Obligation of the Borrower |
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36 |
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SECTION 3.6. |
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Obligations Absolute |
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37 |
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SECTION 3.7. |
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Effect of Application |
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37 |
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ARTICLE IV
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TERM LOAN FACILITY
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SECTION 4.1. |
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Term Loan |
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37 |
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SECTION 4.2. |
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Procedure for Advance of Term Loan |
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37 |
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SECTION 4.3. |
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Repayment of Term Loan |
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38 |
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SECTION 4.4. |
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Prepayment of Term Loans |
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39 |
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ARTICLE V
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GENERAL LOAN PROVISIONS
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SECTION 5.1. |
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Interest |
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41 |
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SECTION 5.2. |
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Notice and Manner of Conversion or Continuation of Loans |
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43 |
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SECTION 5.3. |
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Fees |
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44 |
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SECTION 5.4. |
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Manner of Payment |
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44 |
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SECTION 5.5. |
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Evidence of Debt |
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45 |
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SECTION 5.6. |
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Adjustments |
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45 |
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SECTION 5.7. |
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Obligations of Lenders |
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46 |
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SECTION 5.8. |
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Changed Circumstances |
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47 |
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SECTION 5.9. |
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Indemnity |
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48 |
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SECTION 5.10. |
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Increased Costs |
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48 |
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SECTION 5.11. |
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Taxes |
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49 |
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SECTION 5.12. |
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Replacement of Lenders |
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53 |
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SECTION 5.13. |
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Security |
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54 |
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SECTION 5.14. |
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Defaulting Lenders |
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54 |
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ARTICLE VI
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CLOSING; CONDITIONS OF CLOSING AND BORROWING
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SECTION 6.1. |
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Conditions to Closing and Initial Extensions of Credit |
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56 |
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SECTION 6.2. |
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Conditions to All Extensions of Credit |
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60 |
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ARTICLE VII
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REPRESENTATIONS AND WARRANTIES OF THE BORROWER
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SECTION 7.1. |
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Representations and Warranties |
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61 |
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SECTION 7.2. |
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Survival of Representations and Warranties, Etc. |
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69 |
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ARTICLE VIII
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FINANCIAL INFORMATION AND NOTICES
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SECTION 8.1. |
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Financial Statements and Projections |
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69 |
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SECTION 8.2. |
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Officers Compliance Certificate |
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70 |
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SECTION 8.3. |
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Annual Accountants Certificate |
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70 |
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SECTION 8.4. |
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Other Reports |
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70 |
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SECTION 8.5. |
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Notice of Litigation and Other Matters |
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71 |
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SECTION 8.6. |
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Extension of Time |
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72 |
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SECTION 8.7. |
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Accuracy of Information |
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72 |
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SECTION 8.8. |
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Public/Private Designation for Borrower Materials |
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72 |
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SECTION 8.9. |
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Documentation Delivery Requirements |
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72 |
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ARTICLE IX
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AFFIRMATIVE COVENANTS
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SECTION 9.1. |
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Preservation of Corporate Existence and Related Matters |
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73 |
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SECTION 9.2. |
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Maintenance of Property |
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73 |
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SECTION 9.3. |
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Insurance |
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73 |
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SECTION 9.4. |
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Accounting Methods and Financial Records |
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74 |
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SECTION 9.5. |
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Compliance With Laws and Approvals |
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74 |
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SECTION 9.6. |
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Environmental Laws |
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74 |
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SECTION 9.7. |
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Compliance with ERISA |
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74 |
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SECTION 9.8. |
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Visits and Inspections |
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75 |
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SECTION 9.9. |
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Additional Subsidiaries |
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75 |
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SECTION 9.10. |
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Use of Proceeds |
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77 |
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SECTION 9.11. |
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Payment of Taxes and Other Obligations |
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77 |
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SECTION 9.12. |
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Further Assurances |
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77 |
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ARTICLE X
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FINANCIAL COVENANTS
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SECTION 10.1. |
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Maximum Leverage Ratio |
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78 |
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SECTION 10.2. |
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Minimum Fixed Charge Coverage Ratio |
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78 |
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SECTION 10.3. |
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Maximum Capital Expenditures |
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79 |
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ARTICLE XI
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NEGATIVE COVENANTS
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SECTION 11.1. |
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Limitations on Debt |
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79 |
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SECTION 11.2. |
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Limitations on Liens |
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81 |
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SECTION 11.3. |
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Limitations on Loans, Advances, Investments and Acquisitions |
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83 |
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SECTION 11.4. |
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Limitations on Mergers and Liquidation |
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86 |
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SECTION 11.5. |
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Limitations on Sale of Assets |
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87 |
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SECTION 11.6. |
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Limitations on Dividends and Distributions |
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87 |
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SECTION 11.7. |
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Limitations on Exchange and Issuance of Capital Stock |
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88 |
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SECTION 11.8. |
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Transactions with Affiliates |
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88 |
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SECTION 11.9. |
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Certain Accounting Changes; Organizational Documents |
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89 |
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SECTION 11.10. |
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Amendments; Payments and Prepayments of Subordinated Debt and Permitted Senior Notes |
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89 |
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SECTION 11.11. |
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Restrictive Agreements |
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90 |
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SECTION 11.12. |
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Nature of Business |
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90 |
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SECTION 11.13. |
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Impairment of Security Interests |
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90 |
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ARTICLE XII
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DEFAULT AND REMEDIES
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SECTION 12.1. |
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Events of Default |
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91 |
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SECTION 12.2. |
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Remedies |
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94 |
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SECTION 12.3. |
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Rights and Remedies Cumulative; Non-Waiver; etc. |
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95 |
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SECTION 12.4. |
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Crediting of Payments and Proceeds |
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95 |
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SECTION 12.5. |
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Administrative Agent May File Proofs of Claim |
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96 |
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ARTICLE XIII
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THE ADMINISTRATIVE AGENT
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SECTION 13.1. |
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Appointment and Authority |
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97 |
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SECTION 13.2. |
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Rights as a Lender |
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97 |
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SECTION 13.3. |
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Exculpatory Provisions |
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97 |
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SECTION 13.4. |
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Reliance by the Administrative Agent |
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98 |
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SECTION 13.5. |
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Delegation of Duties |
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99 |
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SECTION 13.6. |
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Resignation of Administrative Agent |
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99 |
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SECTION 13.7. |
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Non-Reliance on Administrative Agent and Other Lenders |
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100 |
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Page |
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SECTION 13.8. |
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No Other Duties, etc. |
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100 |
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SECTION 13.9. |
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Collateral and Guaranty Matters |
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100 |
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SECTION 13.10. |
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Hedging Obligations |
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101 |
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ARTICLE XIV
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MISCELLANEOUS
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SECTION 14.1. |
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Notices |
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101 |
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SECTION 14.2. |
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Expenses; Indemnity |
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103 |
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SECTION 14.3. |
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Right of Set-off |
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105 |
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SECTION 14.4. |
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Governing Law |
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105 |
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SECTION 14.5. |
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Jurisdiction and Venue |
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105 |
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SECTION 14.6. |
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Waiver of Jury Trial |
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106 |
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SECTION 14.7. |
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Reversal of Payments |
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106 |
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SECTION 14.8. |
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Injunctive Relief |
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106 |
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SECTION 14.9. |
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Accounting Matters |
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106 |
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SECTION 14.10. |
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Successors and Assigns; Participations |
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107 |
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SECTION 14.11. |
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Amendments, Waivers and Consents |
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110 |
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SECTION 14.12. |
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Confidentiality |
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112 |
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SECTION 14.13. |
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Performance of Duties |
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113 |
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SECTION 14.14. |
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All Powers Coupled with Interest |
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113 |
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SECTION 14.15. |
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Survival of Indemnities |
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113 |
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SECTION 14.16. |
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Titles and Captions |
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113 |
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SECTION 14.17. |
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Severability of Provisions |
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113 |
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SECTION 14.18. |
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Counterparts; Integration; Effectiveness |
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113 |
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SECTION 14.19. |
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Electronic Execution of Assignments |
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114 |
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SECTION 14.20. |
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Term of Agreement |
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114 |
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SECTION 14.21. |
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Advice of Counsel |
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114 |
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SECTION 14.22. |
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USA Patriot Act |
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114 |
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SECTION 14.23. |
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Independent Effect of Covenants |
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115 |
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v
EXHIBITS AND SCHEDULES
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EXHIBITS |
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Exhibit A-1 |
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Form of Revolving Credit Note |
Exhibit A-2 |
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Form of Swingline Note |
Exhibit A-3 |
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Form of Term Note |
Exhibit B |
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Form of Notice of Borrowing |
Exhibit C |
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Form of Notice of Account Designation |
Exhibit D |
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Form of Notice of Prepayment |
Exhibit E |
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Form of Notice of Conversion/Continuation |
Exhibit F |
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Form of Officers Compliance Certificate |
Exhibit G |
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Form of Assignment and Assumption |
Exhibit H |
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Form of Guaranty Agreement |
Exhibit I |
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Form of Collateral Agreement |
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SCHEDULES |
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Schedule 1.1(a) |
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Existing Letters of Credit |
Schedule 1.1(b) |
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Unrestricted Subsidiaries |
Schedule 1.1(c) |
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Restaurant Units Held for Resale |
Schedule 7.1(a) |
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Jurisdictions of Organization and Qualification |
Schedule 7.1(b) |
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Subsidiaries and Capitalization |
Schedule 7.1(i) |
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ERISA Plans |
Schedule 7.1(t) |
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Debt and Guaranty Obligations |
Schedule 7.1(u) |
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Litigation |
Schedule 11.1(c) |
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Permitted Debt |
Schedule 11.2 |
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Existing Liens |
Schedule 11.3 |
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Existing Loans, Advances and Investments |
vi
CREDIT AGREEMENT, dated as of the 29th day of June, 2010, by and among JACK IN THE BOX INC., a
Delaware corporation, as Borrower, the lenders who are or may become a party to this Agreement, as
Lenders, BANK OF AMERICA, N.A. and MORGAN STANLEY SENIOR FUNDING, INC., as Syndication Agents,
COOPERATIVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A. RABOBANK INTERNATIONAL NEW YORK BRANCH, as
Documentation Agent, and WELLS FARGO BANK, NATIONAL ASSOCIATION, a national banking association (as
successor by merger to Wachovia Bank, National Association), as Administrative Agent for the
Lenders.
STATEMENT OF PURPOSE
The Borrower has requested, and the Lenders have agreed, to extend certain credit facilities
to the Borrower on the terms and conditions of this Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged by the parties hereto, such parties hereby agree as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1. Definitions. The following terms when used in this Agreement shall have
the meanings assigned to them below:
Acquisition means a purchase or other acquisition, direct or indirect, by any Person
of all or substantially all of the assets or all or substantially all of the business of any other
Person or a line of business of any other Person (whether by acquisition of Capital Stock, assets,
permitted merger or any combination thereof); provided that any purchase of restaurant
units permitted under Section 11.14 that does not constitute a purchase or acquisition of,
or investment in, another Person shall not be deemed to be an Acquisition.
Administrative Agent means Wells Fargo, in its capacity as Administrative Agent
hereunder, and any successor thereto appointed pursuant to Section 13.6.
Administrative Agents Fee Letter means the separate fee letter agreement dated June
18, 2010 among the Borrower, Wells Fargo Securities, LLC and Wells Fargo.
Administrative Agents Office means the office of the Administrative Agent specified
in or determined in accordance with the provisions of Section 14.1(d).
Administrative Questionnaire means an administrative questionnaire in a form
supplied by the Administrative Agent.
Affiliate means, with respect to any Person, any other Person (other than a
Subsidiary of the Borrower) which directly or indirectly through one or more intermediaries,
controls, or is controlled by, or is under common control with, such first Person or any of its
Subsidiaries. The term control means (a) the power to vote five percent (5%) or more of the
securities or other equity interests of a Person having ordinary voting power, or (b) the
possession, directly or indirectly, of any other power to direct or cause the direction of the
management and policies of
a Person, whether through ownership of voting securities, by contract or otherwise. The terms
controlling and controlled have meanings correlative thereto.
Agreement means this Credit Agreement, as the same may be further amended, restated,
supplemented or otherwise modified from time to time.
Applicable Law means all applicable provisions of constitutions, laws, statutes,
ordinances, rules, treaties, regulations, permits, licenses, approvals, interpretations and orders
of courts or Governmental Authorities and all orders and decrees of all courts and arbitrators.
Applicable Margin means the corresponding percentages per annum as set forth below
based on the Leverage Ratio:
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Commitment |
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Pricing Level |
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Leverage Ratio |
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Fee |
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LIBOR + |
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Base Rate + |
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I |
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Greater than or equal to 2.00 to 1.00 |
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0.50 |
% |
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2.75 |
% |
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1.75 |
% |
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II |
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Greater than or equal to 1.00 to
1.00, but less than 2.00 to 1.00 |
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0.50 |
% |
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2.50 |
% |
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1.50 |
% |
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III |
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Less than 1.00 to 1.00 |
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0.375 |
% |
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2.25 |
% |
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1.25 |
% |
The Applicable Margin shall be determined and adjusted quarterly on the date (each a
Calculation Date) ten (10) Business Days after the day by which the Borrower is required
to provide an Officers Compliance Certificate pursuant to Section 8.2 for the most
recently ended fiscal quarter of the Borrower; provided that (a) the Applicable Margin
shall be based on Pricing Level II until the first Calculation Date applicable to the first full
fiscal quarter ended after the Closing Date and, thereafter the Pricing Level shall be determined
by reference to the Leverage Ratio as of the last day of the most recently ended fiscal quarter of
the Borrower preceding the applicable Calculation Date, and (b) if the Borrower fails to provide
the Officers Compliance Certificate as required by Section 8.2 for the most recently ended
fiscal quarter of the Borrower preceding the applicable Calculation Date, the Applicable Margin
from such Calculation Date shall be based on Pricing Level I until such time as an appropriate
Officers Compliance Certificate is provided, at which time the Pricing Level shall be determined
by reference to the Leverage Ratio as of the last day of the most recently ended fiscal quarter of
the Borrower preceding such Calculation Date. Except as provided in the preceding sentence, the
Applicable Margin shall be effective from one Calculation Date until the next Calculation Date.
Notwithstanding the foregoing, in the event that any financial statement or Officers Compliance
Certificate delivered pursuant to Section 8.1 or 8.2 is shown to be inaccurate
(regardless of whether (i) this Agreement is in effect, (ii) the Revolving Credit Commitments are
in effect, or (iii) any Extension of Credit is outstanding when such inaccuracy is discovered or
such financial statement or Officers Compliance Certificate was delivered), and such inaccuracy,
if corrected, would have led to the application of a higher Applicable Margin for any period (an
Applicable Period) than the Applicable Margin applied for such Applicable Period, then
(x) the Borrower shall immediately deliver to the Administrative Agent a corrected Officers
Compliance
2
Certificate for such Applicable Period, (y) the Applicable Margin for such Applicable Period shall
be determined as if the Leverage Ratio in the corrected Officers Compliance Certificate were
applicable for such Applicable Period, and (z) the Borrower shall immediately and retroactively be
obligated to pay to the Administrative Agent the accrued additional interest and fees owing as a
result of such increased Applicable Margin for such Applicable Period, which payment shall be
promptly applied by the Administrative Agent in accordance with Section 5.4. Nothing in
this paragraph shall limit the rights of the Administrative Agent and the Lenders with respect to
Sections 5.1(c) and 12.2 nor any of their other rights under this Agreement. The
Borrowers obligations under this paragraph shall survive the termination of the Revolving Credit
Commitments and the repayment of all other Obligations hereunder.
Application means an application, in the form specified by the Issuing Lender from
time to time, requesting the Issuing Lender to issue a Letter of Credit.
Approved Fund means any Fund that is administered or managed by (a) a Lender, (b) an
Affiliate of a Lender or (c) an entity or an Affiliate of an entity that administers or manages a
Lender.
Arranger means any of Wells Fargo Securities, LLC, Banc of America Securities LLC or
Morgan Stanley Senior Funding, Inc., each in its capacity as joint lead arranger and joint lead
bookrunner.
Assignment and Assumption means an assignment and assumption entered into by a
Lender and an assignee (with the consent of any party whose consent is required by Section
14.10), and accepted by the Administrative Agent, in substantially the form of Exhibit
G or any other form approved by the Administrative Agent.
Base Rate means, at any time, the highest of (a) the Prime Rate, (b) the Federal
Funds Rate plus 1/2 of 1.0% and (c) except during any period of time during which a notice
delivered to the Borrower under Section 5.8 shall remain in effect, LIBOR for an Interest
Period of one month plus 1.0%; each change in the Base Rate shall take effect
simultaneously with the corresponding change or changes in the Prime Rate, the Federal Funds Rate
or LIBOR.
Base Rate Loan means any Loan bearing interest at a rate based upon the Base Rate.
Borrower means Jack in the Box Inc., a Delaware corporation.
Borrower Materials has the meaning assigned thereto in Section 8.8.
Business Day means (a) for all purposes other than as set forth in clause (b) below,
any day other than a Saturday, Sunday or legal holiday on which banks in Charlotte, North Carolina
and New York, New York, are open for the conduct of their commercial banking business, and (b) with
respect to all notices and determinations in connection with, and payments of principal and
interest on, any LIBOR Rate Loan or any Base Rate Loan as to which the interest rate is determined
by reference to LIBOR, any day that is a Business Day described in clause (a) and that is also a
day for trading by and between banks in Dollar deposits in the London interbank market.
3
Calculation Date has the meaning assigned thereto in the definition of Applicable
Margin.
Capital Asset means, with respect to the Borrower and its Subsidiaries, any asset
that should, in accordance with GAAP, be classified and accounted for as a capital asset on a
Consolidated balance sheet of the Borrower and its Subsidiaries.
Capital Expenditures means with respect to the Borrower and its Subsidiaries for any
period, the aggregate of all items classified as capital expenditures in accordance with GAAP;
provided that for purposes of Section 10.3, Capital Expenditures shall exclude
the aggregate amount of any such expenditures consisting of Permitted Acquisitions during such
period and include the aggregate cost of Capital Assets acquired by Capital Lease during such
period.
Capital Lease means any lease of any property by the Borrower or any of its
Restricted Subsidiaries, as lessee, that should, in accordance with GAAP, be classified and
accounted for as a capital lease on a Consolidated balance sheet of the Borrower and its
Subsidiaries.
Capital Stock means (a) in the case of a corporation, capital stock, (b) in the case
of an association or business entity, any and all shares, interests, participations, rights or
other equivalents (however designated) of capital stock, (c) in the case of a partnership,
partnership interests (whether general or limited), (d) in the case of a limited liability company,
membership interests, (e) any other ownership interest or participation that confers on a Person
the right to receive a share of the profits and losses of, or distributions of assets of, the
issuing Person (other than any franchise agreements) and (f) for purposes of (i) the definitions of
Disqualified Capital Stock, Qualified Capital Stock and Wholly Owned and (ii) each of Sections
7.1(n), 11.2, 11.6 and 12.1(g), any and all warrants, rights or options
to purchase any of the foregoing (other than franchise agreements).
Change in Control has the meaning assigned thereto in Section 12.1(g).
Change in Law means the occurrence, after the date of this Agreement, of any of the
following: (a) the adoption or taking effect of any law, rule, regulation or treaty, (b) any change
in any law, rule, regulation or treaty or in the administration, interpretation or application
thereof by any Governmental Authority or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any Governmental Authority.
Closing Date means the date of this Agreement or such later Business Day upon which
each condition described in Section 6.1 shall be satisfied or waived in all respects in a
manner acceptable to the Administrative Agent, in its sole discretion.
Code means the Internal Revenue Code of 1986, and the rules and regulations
thereunder, each as amended or modified from time to time.
Collateral means the collateral security for the Obligations pledged or granted
pursuant to the Security Documents.
Collateral Agreement means the Collateral Agreement dated as of the Closing Date, by
and among the Borrower, certain Subsidiaries of the Borrower party thereto and, to the extent
4
applicable, any other Person that joins the Collateral Agreement after the Closing Date, in
favor of the Administrative Agent and the Secured Parties, substantially in the form of Exhibit
I, as amended, restated, supplemented or modified from time to time.
Commitment means, as to any Lender, the sum of such Lenders Revolving Credit
Commitment and Term Loan Commitment, as applicable, as set forth in the Register, as such
Commitment may be reduced or otherwise modified at any time or from time to time pursuant to the
terms hereof.
Commitment Percentage means, as to any Lender, such Lenders Revolving Credit
Commitment Percentage or Term Loan Percentage, as applicable.
Consolidated means, when used with reference to financial statements or financial
statement items of the Borrower and its Subsidiaries, such statements or items on a consolidated
basis in accordance with applicable principles of consolidation under GAAP.
Credit Facility means, collectively, the Revolving Credit Facility, the Swingline
Facility, the L/C Facility and the Term Loan Facility.
Credit Facility Lien Exceptions has the meaning assigned thereto in the definition
of Permitted Senior Notes.
Credit Parties means, collectively, the Borrower and the Guarantors.
Debt means, with respect to any Person at any date and without duplication, the sum
of the following calculated in accordance with GAAP: (a) all liabilities, obligations and
indebtedness for borrowed money including, but not limited to, obligations evidenced by bonds,
debentures, notes or other similar instruments of any such Person, (b) all obligations to pay the
deferred purchase price of property or services of any such Person (including, without limitation,
all such obligations under non-competition agreements or earn-out agreements), except trade
payables arising in the ordinary course of business not more than ninety (90) days past due (unless
being disputed in good faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided for on the books of such Person), (c) all obligations of
any such Person as lessee under Capital Leases, (d) all liabilities and obligations of any other
Person which would be Debt under this definition if incurred by the Borrower or any of its
Subsidiaries which are secured by a Lien on any asset of the Borrower and its Restricted
Subsidiaries, (e) all Guaranty Obligations of any such Person with respect to Debt of another
Person, (f) all obligations, contingent or otherwise, of any such Person relative to the face
amount of letters of credit, whether or not drawn, including, without limitation, any Reimbursement
Obligation, and bankers acceptances issued for the account of any such Person, (g) all obligations
of any such Person in respect of Disqualified Capital Stock, (h) the Termination Value of any
Hedging Agreements, (i) all outstanding payment obligations of any such Person with respect to
Synthetic Leases and (j) the outstanding attributed principal amount incurred as an obligation of
any such Person under any asset securitization program. The parties hereto agree that
notwithstanding anything to the contrary in this definition, the term Debt as used in Section
11.1 shall refer only to Debt of the Borrower and its Restricted Subsidiaries.
5
Default means any of the events specified in Section 12.1 which with the
passage of time, the giving of notice or any other condition, would constitute an Event of Default.
Defaulting Lender means any Lender that (a) has failed to fund any portion of the
Revolving Credit Loans, the Term Loan, participations in L/C Obligations or participations in
Swingline Loans required to be funded by it hereunder within one Business Day of the date required
to be funded by it hereunder, (b) has otherwise failed to pay over to the Administrative Agent or
any other Lender any other amount required to be paid by it hereunder within one Business Day of
the date when due, unless such amount is the subject of a good faith dispute, (c) has notified the
Borrower, the Administrative Agent or any other Lender in writing that it does not intend to comply
with any of its funding obligations under this Agreement or has made a public statement to the
effect that it does not intend to comply or has failed to comply with its funding obligations under
this Agreement or under other agreements in which it commits or is obligated to extend credit, or
(d) has become or is insolvent or has become the subject of a bankruptcy or insolvency proceeding,
or has had a receiver, conservator, trustee or custodian appointed for it, or has taken any action
in furtherance of, or indicating its consent to, approval of or acquiescence in any such proceeding
or appointment.
Disqualified Capital Stock means any Capital Stock that, by its terms (or by the
terms of any security or other Capital Stock into which it is convertible or for which it is
exchangeable) or upon the happening of any event or condition, (a) matures, is mandatorily
redeemable or is subject to mandatory repurchase (other than solely for Qualified Capital Stock),
pursuant to a sinking fund obligation or otherwise (except as a result of a change of control or
asset sale so long as any rights of the holders thereof upon the occurrence of a change of control
or asset sale event shall be (i) subject to the prior repayment in full of the Loans and all other
Obligations that are accrued and payable and the termination of the Commitments or (ii) otherwise
consented to by the Required Lenders), (b) is redeemable or is subject to repurchase at the option
of the holder thereof (other than solely for Qualified Capital Stock) (except as a result of a
change of control or asset sale so long as any rights of the holders thereof upon the occurrence of
a change of control or asset sale event shall be (i) subject to the prior repayment in full of the
Loans and all other Obligations that are accrued and payable and the termination of the Commitments
or (ii) otherwise consented to by the Required Lenders), in whole or in part, (c) provides for the
scheduled payment of dividends in cash or (d) is or becomes convertible into or exchangeable for
Debt or any other Capital Stock that would constitute Disqualified Capital Stock, in each case,
prior to the date that is 91 days after the later of (i) the date specified in clause (a) of the
definition of Term Loan Maturity Date and (ii) the date specified in Section 2.6(a);
provided, that if such Capital Stock is issued pursuant to a plan for the benefit of the
Borrower or its Subsidiaries or by any such plan to such employees, such Capital Stock shall not
constitute Disqualified Capital Stock solely because it may be required to be repurchased by the
Borrower or its Subsidiaries in order to satisfy applicable statutory or regulatory obligations.
Dollars or $ means, unless otherwise qualified, dollars in lawful currency
of the United States.
Domestic Subsidiary means any Subsidiary organized under the laws of any political
subdivision of the United States.
6
EBITDA means, for any period, the sum of the following determined on a Consolidated
basis, without duplication, for the Borrower and its Subsidiaries (other than a Permitted
Franchisee Financing SPE) in accordance with GAAP:
(a) Net Income for such period; plus
(b) the sum of the following to the extent deducted in determining Net Income: (i)
income and franchise taxes, (ii) Interest Expense, (iii) amortization, depreciation and
other non-cash charges, including, without limitation, any financing fees to be written off
by the Borrower in connection with the repayment of the Debt under the Existing Credit
Agreement, non-cash compensation expense and non-cash impairment charges (provided,
however, that non-cash charges under this clause (iii) reserved for cash charges to
be taken in the future shall be excluded), (iv) other nonrecurring losses in an aggregate
amount not to exceed 5% of EBITDA for such period (as determined prior to the application of
this clause (b)(iv)) or otherwise approved by the Administrative Agent in its sole
discretion, (v) extraordinary losses (other than losses from discontinued operations) and
(vi) non-cash losses attributable to movement in the mark-to-market valuation of Hedging
Obligations and commodity swaps pursuant to Financial Accounting Standards Board Statement
No. 133; minus
(c) the sum of the following to the extent included in determining Net Income: (i)
non-cash gains attributable to movement in the mark-to-market valuation of Hedging
Obligations and commodity swaps pursuant to Financial Accounting Standards Board Statement
No. 133, (ii) all extraordinary gains, non-recurring gains and gains realized in connection
with any sale of assets not made in the ordinary course of business (it being understood and
agreed that any sale of restaurant units to franchisees are sales in the ordinary course of
business for purposes of determining EBITDA) or the disposition of securities or the early
extinguishment of Debt, together with any related provision for taxes on any such gain and
(iii) the net income of any Person that is accounted for by the equity method of accounting
(except to the extent of the amount of dividends or similar distributions paid in cash to
the Borrower or a Restricted Subsidiary of the Borrower).
In determining EBITDA, the cumulative effect of a change in accounting principles shall be
disregarded, and EBITDA shall be calculated on a pro forma basis to give effect to
any Material Acquisitions or Material Dispositions as set forth below, in a manner reasonably
determined by, and certified by the chief financial officer of the Borrower, or another Responsible
Officer reasonably acceptable to the Administrative Agent, and supported by financial information
and related calculations in form and substance reasonably satisfactory to the Administrative Agent.
Each such pro forma calculation shall be made, assuming such transaction occurred
on the first day of the applicable period for which EBITDA is being calculated, (A) to include the
EBITDA attributable to any Person, assets, business or line of business acquired pursuant to any
Material Acquisition during such period and (B) to exclude the EBITDA attributable to any Person,
assets, business or line of business sold, transferred or otherwise disposed of pursuant to
Material Disposition during such period. As used in this definition, Material Acquisition means
any Permitted Acquisition of any Person, assets, business or line of business (excluding any
purchase of any Person, assets, business or line of business in the ordinary course of business and
any purchase of restaurant units from franchisees) that involves the payment of consideration by
the
7
Borrower and its Subsidiaries in excess of $10,000,000 and Material Disposition means any sale,
transfer or disposition (or series of related sales, transfers or dispositions) of any Person,
assets, business or line of business (excluding any sales of restaurant units to franchisees and
other sales, transfers or dispositions of any Person, assets, business or line of business in the
ordinary course of business) that yields gross proceeds to the Borrower or any of its Subsidiaries
in excess of $10,000,000.
EBITDAR means, for any period, the sum of the following determined on a Consolidated
basis, without duplication, for the Borrower and its Subsidiaries in accordance with GAAP: (a)
EBITDA for such period, plus (b) Rental Expense for such period.
Employee Benefit Plan means any employee benefit plan within the meaning of Section
3(3) of ERISA which (a) is sponsored, maintained, contributed to, or required to be contributed to
by the Borrower or any ERISA Affiliate or (b) has at any time within the preceding six (6) years
been sponsored, maintained, contributed to, or required to be contributed to by the Borrower or any
current or former ERISA Affiliate.
Environmental Claims means any and all administrative, regulatory or judicial
actions, suits, demands, demand letters, claims, liens, accusations, allegations, notices of
noncompliance or violation, investigations (other than internal reports prepared by any Person in
the ordinary course of business and not in response to any third party action or request of any
kind) or proceedings relating in any way to any actual or alleged violation of or liability under
any Environmental Law or relating to any permit issued, or any approval given, under any such
Environmental Law, including, without limitation, any and all claims by Governmental Authorities
for enforcement, cleanup, removal, response, remedial or other actions or damages, contribution,
indemnification cost recovery, compensation or injunctive relief resulting from Hazardous Materials
or arising from alleged injury or threat of injury to human health or the environment.
Environmental Laws means any and all federal, foreign, state, provincial and local
laws, statutes, ordinances, rules, regulations, permits, licenses, approvals, interpretations and
orders of courts or Governmental Authorities, relating to the protection of human health or the
environment, including, but not limited to, requirements pertaining to the manufacture, processing,
distribution, use, treatment, storage, disposal, transportation, handling, reporting, licensing,
permitting, investigation or remediation of Hazardous Materials.
ERISA means the Employee Retirement Income Security Act of 1974, and the rules and
regulations thereunder, each as amended or modified from time to time.
ERISA Affiliate means any Person who together with the Borrower is treated as a
single employer within the meaning of Section 414(b), (c), (m) or (o) of the Code or Section
4001(b) of ERISA.
Eurodollar Reserve Percentage means, for any day, the percentage (expressed as a
decimal and rounded upwards, if necessary, to the next higher 1/100th of 1%) which is in effect for
such day as prescribed by the Board of Governors of the Federal Reserve System (or any successor)
for determining the maximum reserve requirement (including, without limitation, any
8
basic, supplemental or emergency reserves) in respect of eurocurrency liabilities or any
similar category of liabilities for a member bank of the Federal Reserve System in New York City.
Event of Default means any of the events specified in Section 12.1,
provided that any requirement for passage of time, giving of notice, or any other
condition, has been satisfied.
Excluded Taxes means, with respect to the Administrative Agent, any Lender, the
Issuing Lender or any other recipient of any payment to be made by or on account of any obligation
of the Borrower hereunder, (a) taxes imposed on or measured by its overall net income (however
denominated) or overall gross income (other than a gross income tax imposed by way of withholding),
and franchise taxes imposed on it (in lieu of net income taxes), by the United States or by the
jurisdiction (or any political subdivision thereof) under the laws of which such recipient is
organized or in which its principal office is located or by any other jurisdiction as a result of a
present or former connection between the Administrative Agent, such Lender, or the Issuing Lender
and such jurisdiction (other than any such connection resulting from such recipient having
executed, delivered or performed its obligations or received a payment under, or enforced, any of
the Loan Documents) or, in the case of any Lender, in which its applicable Lending Office is
located, (b) any branch profits taxes imposed by the United States or any similar tax imposed by
any other jurisdiction in which the Borrower is located, (c) in the case of a Foreign Lender (other
than an assignee pursuant to a request by the Borrower under Section 5.12(b)), any
withholding tax that is imposed on amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office) or is attributable to such
Foreign Lenders failure or inability (other than as a result of a Change in Law) to comply with
Section 5.11(e), except to the extent that such Foreign Lender (or its assignor, if any)
was entitled, at the time of designation of a new Lending Office (or assignment), to receive
additional amounts from the Borrower with respect to such withholding tax pursuant to Section
5.11(a), (d) any Taxes (including withholding taxes) imposed under Sections 1471 through 1474
of the Code, (e) any United States backup withholding taxes other than such taxes imposed as a
result of a Change in Law (other than a change in applicable backup withholding tax rate) and (f)
all liabilities, penalties, and interest incurred with respect to any of the foregoing.
Existing Credit Agreement means the Credit Agreement dated as of December 15, 2006,
as amended, restated, supplemented or otherwise modified prior to the Closing Date, by and among
Jack in the Box Inc., as borrower, certain banks and other financial institutions, as lenders, and
Wells Fargo (as successor by merger to Wachovia Bank, National Association), as administrative
agent.
Existing Letters of Credit means those letters of credit existing on the Closing
Date and identified on Schedule 1.1(a).
Extensions of Credit means, as to any Lender at any time, (a) an amount equal to the
sum of (i) the aggregate principal amount of all Revolving Credit Loans made by such Lender then
outstanding, (ii) such Lenders Revolving Credit Commitment Percentage of the L/C Obligations then
outstanding, (iii) such Lenders Revolving Credit Commitment Percentage of the Swingline Loans then
outstanding and (iv) the aggregate principal amount of the Term Loan
9
made by such Lender then outstanding, or (b) the making of any Loan or participation in any
Letter of Credit by such Lender, as the context requires.
FDIC means the Federal Deposit Insurance Corporation, or any successor thereto.
Federal Funds Rate means, for any day, the rate per annum equal to the weighted
average of the rates on overnight Federal funds transactions with members of the Federal Reserve
System arranged by federal funds brokers on such day (or, if such day is not a Business Day, for
the immediately preceding Business Day), as published by the Federal Reserve Bank of New York on
the Business Day next succeeding such day, provided that if such rate is not so published
for any day which is a Business Day, the Federal Funds Rate for such day shall be the average of
the quotations for such day on such transactions received by the Administrative Agent from three
Federal Funds brokers of recognized standing selected by the Administrative Agent.
Fiscal Year means the fiscal year of the Borrower and its Subsidiaries ending on the
Sunday that is closest to September 30.
Foreign Lender means any Lender that is organized under the laws of a jurisdiction
other than that in which the Borrower is resident for tax purposes. For purposes of this
definition, the United States, each State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
Foreign Subsidiary means any Subsidiary that is not a Domestic Subsidiary.
Fronting Exposure means, at any time there is a Defaulting Lender, (a) with respect
to the Issuing Lender, such Defaulting Lenders Revolving Credit Commitment Percentage of the
outstanding L/C Obligations other than L/C Obligations as to which such Defaulting Lenders
participation obligation has been reallocated to other Lenders or cash collateral or other credit
support acceptable to the Issuing Lender shall have been provided in accordance with the terms
hereof and (b) with respect to the Swingline Lender, such Defaulting Lenders Revolving Credit
Commitment Percentage of Swingline Loans other than Swingline Loans as to which such Defaulting
Lenders participation obligation has been reallocated to other Lenders, repaid by the Borrower or
for which cash collateral or other credit support acceptable to the Swingline Lender shall have
been provided in accordance with the terms hereof.
Fund means any Person (other than a natural person) that is (or will be) engaged in
making, purchasing, holding or otherwise investing in commercial loans and similar extensions of
credit in the ordinary course of its business.
Funded Debt means, as of any date of determination with respect to the Borrower and
its Subsidiaries (other than a Permitted Franchisee Financing SPE) on a Consolidated basis without
duplication, the sum of (a) all Debt of the Borrower and its Subsidiaries referred to in clauses
(a) and (c) of the definition of Debt and (b) to the extent that the underlying guaranteed Debt
would be Debt of the types referred to in clause (a) of this definition, Debt referred to in clause
(e) of the definition of Debt (including, without limitation, any Guaranty Obligations of the
Borrower or any of its Subsidiaries (other than a Permitted Franchisee Financing SPE) in connection
with a Permitted Franchisee Financing Program).
10
GAAP means generally accepted accounting principles in the United States set forth
in the opinions and pronouncements of the Accounting Principles Board and the American Institute of
Certified Public Accountants and statements and pronouncements of the Financial Accounting
Standards Board or such other principles as may be approved by a significant segment of the
accounting profession in the United States, that are applicable to the circumstances as of the date
of determination, consistently applied on such date of determination.
Governmental Approvals means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all Governmental Authorities.
Governmental Authority means any nation, province, state or political subdivision
thereof, and any government or any Person exercising executive, legislative, regulatory or
administrative functions of or pertaining to government, and any corporation or other entity owned
or controlled, through stock or capital ownership or otherwise, by any of the foregoing.
Guarantors means the Restricted Subsidiaries that are Domestic Subsidiaries of the
Borrower and any other Person which, after the Closing Date, becomes a party to the Guaranty
Agreement by executing and delivering a Joinder Agreement.
Guaranty Agreement means the unconditional Guaranty Agreement dated as of the
Closing Date, executed by each of the Guarantors in favor of the Administrative Agent and the
Secured Parties, substantially in the form of Exhibit H, as amended, restated, supplemented
or otherwise modified from time to time hereafter.
Guaranty Obligation means, with respect to the Borrower and its Subsidiaries,
without duplication, any obligation, contingent or otherwise, of any such Person pursuant to which
such Person has directly or indirectly guaranteed any Debt or other obligation of any other Person
and, without limiting the generality of the foregoing, any obligation, direct or indirect,
contingent or otherwise, of any such Person (a) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Debt or other obligation (whether arising by virtue of partnership
arrangements, by agreement to keep well, to purchase assets, goods, securities or services, to
take-or-pay, or to maintain financial statement condition or otherwise) or (b) entered into for the
purpose of assuring in any other manner the obligee of such Debt or other obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or in part);
provided, that the term Guaranty Obligation shall not include endorsements for collection
or deposit in the ordinary course of business. The parties hereto agree that notwithstanding
anything to the contrary in this definition, the term Guaranty Obligations as used in Section
11.1 shall refer only to Guaranty Obligations of the Borrower and its Restricted Subsidiaries.
Hazardous Materials means any substances or materials (a) which are or become
defined as hazardous wastes, hazardous substances, pollutants, contaminants, chemical substances or
mixtures or toxic substances under any Environmental Law, (b) which are toxic, explosive,
corrosive, flammable, infectious, radioactive, carcinogenic, mutagenic or otherwise harmful to
human health or the environment and are or become regulated by any Governmental Authority, (c) the
presence of which require investigation or remediation under any Environmental Law or common law,
(d) the discharge or emission or release of which requires a permit or license under any
Environmental Law or other Governmental Approval, (e) which are
11
deemed to constitute a nuisance or a trespass which pose a health or safety hazard to Persons
or neighboring properties, (f) which consist of underground or aboveground storage tanks, whether
empty, filled or partially filled with any substance, or (g) which contain, without limitation,
asbestos, polychlorinated biphenyls, urea formaldehyde foam insulation, petroleum hydrocarbons,
petroleum derived substances or waste, crude oil, nuclear fuel, natural gas or synthetic gas.
Hedging Agreement means any agreement with respect to any Interest Rate Contract,
forward rate agreement, forward foreign exchange agreement, currency swap agreement, cross-
currency rate swap agreement, currency option agreement or other agreement or arrangement designed
to alter the risks of any Person arising from fluctuations in interest rates or currency values
(other than any commodity swap or other agreement or arrangement related to commodity prices) all
as amended, restated, supplemented or otherwise modified from time to time.
Hedging Obligations has the meaning assigned thereto in the definition of
Obligations.
Indemnified Taxes means Taxes and Other Taxes other than Excluded Taxes.
Independent Collateral Account means a collateral account established and maintained
by the Independent Issuer. The amounts held in such collateral account shall in no event exceed
$55,000,000 in the aggregate at any time, shall be subject to the Lien of the Independent Issuer
pursuant to Section 11.2 and shall be available to reimburse the Independent Issuer for
draws, fees, expenses and related obligations with respect to the Independent Letters of Credit in
the event that the Borrower defaults on its reimbursement obligations to the Independent Issuer
with respect to such letters of credit.
Independent Issuer means Wells Fargo, in its capacity as issuer of the Independent
Letters of Credit.
Independent Letters of Credit means those letters of credit issued by the
Independent Issuer for the account of the Borrower in an aggregate maximum face amount not to
exceed $50,000,000. The Independent Letters of Credit shall be issued outside of the Credit
Facility and shall not constitute Letters of Credit under this Agreement. Each Independent Letter
of Credit shall expire on a date satisfactory to the Independent Issuer, which date shall be no
later than the earlier of (A) one (1) year after the date of its issuance (but any Independent
Letter of Credit may, by its terms, be renewable annually with the consent of the Independent
Issuer), and (B) the fifth (5th) Business Day prior to the date specified in Section
2.6(a).
Innovation Center Property means the Borrowers product marketing, research and
development facility in San Diego, California (including the real property upon which such facility
is situated and the adjacent property of approximately four acres that is owned by the Borrower).
Insurance and Condemnation Proceeds has the meaning assigned thereto in Section
4.4(b)(iv).
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Interest Expense means, with respect to the Borrower and its Subsidiaries (other
than a Permitted Franchisee Financing SPE) for any period, the gross interest expense (including,
without limitation, interest expense attributable to Capital Leases), net of all interest income of
the Borrower and its Subsidiaries (other than a Permitted Franchisee Financing SPE) for such
period, all determined for such period on a Consolidated basis without duplication, in accordance
with GAAP.
Interest Period has the meaning assigned thereto in Section 5.1(b).
Interest Rate Contract means any interest rate swap agreement, interest rate cap
agreement, interest rate floor agreement, interest rate collar agreement, interest rate option or
any other agreement regarding the hedging of interest rate risk exposure executed in connection
with hedging the interest rate exposure of any Person and any confirming letter executed pursuant
to such agreement, all as amended, restated, supplemented or otherwise modified from time to time.
ISP98 means the International Standby Practices (1998 Revision, effective January 1,
1999), International Chamber of Commerce Publication No. 590.
Issuing Lender means Wells Fargo in its capacity as issuing lender hereunder and any
successor thereto appointed pursuant to Section 13.6.
Joinder Agreement means, collectively, each Joinder Agreement executed in favor of
the Administrative Agent for the ratable benefit of itself and the Lenders, in each case in form
and substance to be mutually agreed upon by the Borrower and the Administrative Agent.
Joint Fee Letter means the separate fee letter agreement dated June 18, 2010 among
the Borrower, the Arrangers, Wells Fargo and Bank of America, N.A.
L/C Commitment means the lesser of (a) Seventy-Five Million Dollars ($75,000,000)
and (b) the Revolving Credit Commitment.
L/C Facility means the letter of credit facility established pursuant to Article
III.
L/C Obligations means at any time, an amount equal to the sum of (a) the aggregate
undrawn and unexpired amount of the then outstanding Letters of Credit and (b) the aggregate amount
of drawings under Letters of Credit which have not then been reimbursed pursuant to Section
3.5.
L/C Participants means the collective reference to all the Lenders with Revolving
Credit Commitments other than the Issuing Lender.
L/C Supporting Documentation has the meaning assigned thereto in Section
3.2.
Lender means each Person executing this Agreement as a Lender (including, without
limitation, the Issuing Lender and the Swingline Lender unless the context otherwise requires) set
forth on the signature pages hereto and each Person that hereafter becomes a party to this
Agreement as a Lender pursuant to Section 14.10.
13
Lending Office means, with respect to any Lender, the office of such Lender
maintaining such Lenders Extensions of Credit.
Letters of Credit means the collective reference to the standby letters of credit
issued pursuant to Section 3.1 and the Existing Letters of Credit.
Leverage Ratio has the meaning assigned thereto in Section 10.1.
LIBOR means,
(a) for any interest rate calculation with respect to a LIBOR Rate Loan, the rate of
interest per annum determined on the basis of the rate for deposits in Dollars in minimum
amounts of at least $5,000,000 for a period equal to the applicable Interest Period which
appears on Reuters Screen LIBOR01 Page at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period (rounded upward, if
necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does not appear on
Reuters Screen LIBOR01 Page, then LIBOR shall be determined by the Administrative Agent to
be the arithmetic average of the rate per annum at which deposits in Dollars in minimum
amounts of at least $5,000,000 would be offered by first class banks in the London interbank
market to the Administrative Agent at approximately 11:00 a.m. (London time) two (2)
Business Days prior to the first day of the applicable Interest Period for a period equal to
such Interest Period; and
(b) for any interest rate calculation with respect to a Base Rate Loan, the rate of
interest per annum determined on the basis of the rate for deposits in Dollars in minimum
amounts of at least $5,000,000 for a period equal to one month (commencing on the date of
determination of such interest rate) which appears on the Reuters Screen LIBOR01 Page (or
any successor page) at approximately 11:00 a.m. (London time) on such date of determination,
or, if such date is not a Business Day, then the immediately preceding Business Day (rounded
upward, if necessary, to the nearest 1/100th of 1%). If, for any reason, such rate does not
appear on Reuters Screen LIBOR01 Page (or any successor page) then LIBOR for such Base
Rate Loan shall be determined by the Administrative Agent to be the arithmetic average of
the rate per annum at which deposits in Dollars in minimum amounts of at least $5,000,000
would be offered by first class banks in the London interbank market to the Administrative
Agent at approximately 11:00 a.m. (London time) on such date of determination for a period
equal to one month commencing on such date of determination.
Each calculation by the Administrative Agent of LIBOR shall be conclusive and binding for all
purposes, absent manifest error.
LIBOR Rate means a rate per annum (rounded upwards, if necessary, to the next higher
1/100th of 1%) determined by the Administrative Agent pursuant to the following formula:
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LIBOR Rate =
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LIBOR
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1.00-Eurodollar Reserve Percentage |
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LIBOR Rate Loan means any Loan bearing interest at a rate based upon the LIBOR Rate.
Lien means, with respect to any asset, any mortgage, leasehold mortgage, lien,
pledge, charge, security interest, hypothecation or encumbrance of any kind in respect of such
asset. For the purposes of this Agreement, a Person shall be deemed to own subject to a Lien any
asset which it has acquired or holds subject to the interest of a vendor or lessor under any
conditional sale agreement, Capital Lease or other title retention agreement relating to such
asset.
Loan Documents means, collectively, this Agreement, the Notes, the Applications, the
L/C Supporting Documentation, the Security Documents, each Joinder Agreement and each other
document, instrument, certificate and agreement executed and delivered by the Borrower or any
Subsidiary thereof in connection with this Agreement or otherwise contemplated hereby (excluding
any Hedging Agreement), all as may be amended, restated, supplemented or otherwise modified from
time to time.
Loans means the collective reference to the Revolving Credit Loans, the Swingline
Loans and the Term Loan, and Loan means any of such Loans.
Maintenance Capital Expenditures means, as of any date of determination, Capital
Expenditures for replacement acquisitions, additions and betterments related to restaurant units of
the Borrower or any of its Subsidiaries as of such date of determination, including the following:
(a) equipment/furnishing, (b) landscaping/site improvements, (c) building improvements, including
paint and demolition, (d) roofing, (e) plumbing/sewer, (f) electrical, and (g) parking lot
paving/overlay; provided, however, that Maintenance Capital Expenditures shall not
include Capital Expenditures related to: (x) new sites, (y) corporate projects, including
kitchen/operational enhancements and (z) restaurant re-imaging, including site remodels and
rebuilds.
Margin Stock has the meaning assigned thereto in Regulation U.
Material Adverse Effect means a material adverse effect on (a) the properties,
business, operations or condition (financial or otherwise) of the Borrower and its Subsidiaries,
taken as a whole or (b) the ability of the Borrower or any of its Subsidiaries to perform its
obligations under any Loan Document.
Material Contract means (a) any contract or other agreement, written or oral, of the
Borrower or any of its Subsidiaries involving monetary liability of or to any such Person in an
amount in excess of $25,000,000 per annum, or (b) any other contract or agreement, written or oral,
of the Borrower or any of its Restricted Subsidiaries the failure by the Borrower or any of its
Restricted Subsidiaries to comply with which could reasonably be expected to have a Material
Adverse Effect.
Moodys means Moodys Investors Service, Inc. and any successor thereto.
Multiemployer Plan means a multiemployer plan as defined in Section 4001(a)(3) of
ERISA to which the Borrower or any ERISA Affiliate is making, or is accruing an obligation to make,
or has accrued an obligation to make contributions within the preceding six (6) years.
15
Net Cash Proceeds means, as applicable, (a) with respect to any sale or other
disposition of assets, the gross cash proceeds received by the Borrower or any of its Restricted
Subsidiaries from such sale less the sum of (i) all income taxes and other taxes paid or
reasonably estimated to be payable within two (2) years from the date of such sale or disposition
as a result of such sale or disposition (after taking into account any available tax credits or
deductions and any tax sharing arrangements) and any other fees and expenses incurred in connection
therewith and (ii) the principal amount of, premium, if any, and interest on any Debt secured by a
Lien on the asset (or a portion thereof) sold, which Debt is required to be repaid in connection
with such sale, (b) with respect to any issuance of Debt (including, without limitation, the
Permitted Senior Notes and Subordinated Debt), the gross cash proceeds received by the Borrower or
any of its Restricted Subsidiaries therefrom less all legal, underwriting and other fees
and expenses incurred in connection therewith and (c) with respect to any payment under an
insurance policy or in connection with a condemnation proceeding, the amount of cash proceeds
received by the Borrower or its Restricted Subsidiaries from an insurance company or Governmental
Authority, as applicable, net of all expenses of collection; provided, that Net Cash
Proceeds shall not include any such cash received by or on behalf of the Borrower or its Restricted
Subsidiaries with respect to any Permitted Sale-Leaseback Transaction with respect to the
Innovation Center Property.
Net Income means, with respect to the Borrower and its Subsidiaries, for any period
of determination, the net income (or loss) for such period, determined on a Consolidated basis,
without duplication, in accordance with GAAP; provided that there shall be excluded from
Net Income (a) the net income (or loss) of any Person (other than a Subsidiary which shall be
subject to clause (c) below), in which the Borrower or any of its Subsidiaries has a joint interest
with a third party, except to the extent such net income is actually paid to the Borrower or any of
its Subsidiaries by dividend or other distribution during such period (in an amount not to exceed
the Borrowers or such Subsidiarys share of equity income from such Person), (b) the net income
(or loss) of any Person accrued prior to the date it becomes a Subsidiary of such Person or is
merged into or consolidated with such Person or any of its Subsidiaries or that Persons assets are
acquired by such Person or any of its Subsidiaries except to the extent included pursuant to the
foregoing clause (a), (c) the net income (if positive) of any Subsidiary that is not a Guarantor,
to the extent that the declaration or payment of dividends or similar distributions by such
Subsidiary to the Borrower or any Credit Party of such net income (A) 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 such Subsidiary or (B) would be subject to
any taxes payable on such dividends or distributions.
Notes means the collective reference to the Revolving Credit Notes, the Swingline
Note and the Term Notes, and Note means any of such Notes.
Notice of Account Designation has the meaning assigned thereto in Section
2.3(b).
Notice of Borrowing has the meaning assigned thereto in Section 2.3(a).
Notice of Conversion/Continuation has the meaning assigned thereto in Section
5.2.
Notice of Prepayment has the meaning assigned thereto in Section 2.4(d).
16
Obligations means, in each case, whether now in existence or hereafter arising: (a)
the principal of and interest on (including interest accruing after the filing of any bankruptcy or
similar petition) the Loans, (b) the L/C Obligations, (c) all existing or future payment and other
obligations owing by any Credit Party under any Hedging Agreement (which such Hedging Agreement is
permitted hereunder) with any Person that is a Lender hereunder or an Affiliate of a Lender
hereunder at the time such Hedging Agreement is entered into (all such obligations with respect to
any such Hedging Agreement, Hedging Obligations) and (d) all other fees and commissions
(including attorneys fees), charges, indebtedness, loans, liabilities, financial accommodations,
obligations, covenants and duties owing by the Borrower or any of its Subsidiaries to the Secured
Parties or the Administrative Agent, in each case under or in respect of this Agreement, any Letter
of Credit, any other Loan Document or any agreement governing any Hedging Obligations, of every
kind, nature and description, direct or indirect, absolute or contingent, due or to become due,
contractual or tortious, liquidated or unliquidated, and whether or not evidenced by any note;
provided that (i) the Hedging Obligations shall be secured and guaranteed pursuant to the
Security Documents only to the extent that, and for so long as, the other Obligations are so
secured and guaranteed and (ii) any release of Collateral or Guarantors effected in the manner
permitted by this Agreement shall not require the consent of holders of the Hedging Obligations.
OFAC means the U.S. Department of Treasurys Office of Foreign Assets Control.
Officers Compliance Certificate has the meaning assigned thereto in Section
8.2.
Operating Lease means, as to any Person as determined in accordance with GAAP, any
lease of property (whether real, personal or mixed) by such Person as lessee which is not a Capital
Lease.
Other Guaranteed Debt has the meaning assigned thereto in Section 11.1(j).
Other Taxes means all present or future stamp or documentary taxes or any other
excise or property taxes, charges or similar levies arising from any payment made hereunder or
under any other Loan Document or from the execution, delivery or enforcement of, or otherwise with
respect to, this Agreement or any other Loan Document.
Participant has the meaning assigned thereto in Section 14.10(d).
Patriot Act means the USA Patriot Act (Title III of Pub. L. 107-56 (signed into law
October 26, 2001)) as amended or modified from time to time.
PBGC means the Pension Benefit Guaranty Corporation or any successor agency.
Pension Plan means any Employee Benefit Plan, other than a Multiemployer Plan, which
is subject to the provisions of Title IV of ERISA or Section 412 of the Code.
Permitted Acquisition has the meaning assigned thereto in Section 11.3(h).
Permitted Acquisition Diligence Information means with respect to any Acquisition
proposed by the Borrower or any Restricted Subsidiary thereof, to the extent applicable,
17
(a) all financial statements provided to, or otherwise made available to, the Borrower or such
Restricted Subsidiary with respect to the Person, assets, business or line of business being
acquired; and
(b) all financial information, all Material Contracts, all customer lists, all supply
agreements, and all other material information, in each case to the extent provided to, or
otherwise made available to, the Borrower or such Restricted Subsidiary and only to the extent that
such information and documents may be provided to the Administrative Agent without the breach of
any legally binding agreement; provided that the Borrower or such Restricted Subsidiary
shall have negotiated in good faith with the other parties to such Acquisition to allow for such
information and documents to be provided to the Administrative Agent;
provided that the Borrower and its Restricted Subsidiaries shall have no obligation to
provide such information and documents (i) unless such information and documents are requested by
the Administrative Agent to be delivered to the Administrative Agent in connection with such
proposed Acquisition, or (ii) to the extent that such information and documents are unable to be
provided to the Administrative Agent without the breach of Applicable Law.
Permitted Acquisition Documents means with respect to any Acquisition proposed by
the Borrower or any Restricted Subsidiary thereof,
(a) the purchase agreement, sale agreement, merger agreement or other agreement evidencing
such acquisition, together with all schedules and exhibits thereto and any amendment, modification
or supplement thereof; and
(b) all legal opinions and each other document executed or delivered to the Borrower or such
Restricted Subsidiary in connection therewith and any amendment, modification or supplement to any
of the foregoing to the extent that such opinions and documents may be provided to the
Administrative Agent without the breach of any legally binding agreement (including any such
provisions set forth in any legal opinion); provided that the Borrower or such Restricted
Subsidiary shall have negotiated in good faith with the other parties to such Acquisition to allow
for such opinions and documents to be provided to the Administrative Agent;
provided that the Borrower and its Restricted Subsidiaries shall have no obligation to
provide such opinions and documents (i) unless such opinions and documents are requested by the
Administrative Agent to be delivered to the Administrative Agent in connection with such proposed
Acquisition, or (ii) to the extent that such opinions and documents are unable to be provided to
the Administrative Agent without the breach of Applicable Law.
Permitted Franchisee Financing Program means any financing arrangement whereby the
Borrower or any Subsidiary directly or indirectly invests in a Permitted Franchisee Financing SPE
or incurs a Guaranty Obligation with respect to Debt incurred by a Permitted Franchisee Financing
SPE in order to permit the Permitted Franchisee Financing SPE to obtain third party Debt for the
benefit of franchisees of the Borrower and its Subsidiaries.
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Permitted Franchisee Financing SPE means any special purpose Subsidiary or other
Person that is a special purpose entity in which the Borrower or any Subsidiary owns any Capital
Stock created solely to provide or facilitate franchisee financing pursuant to any Permitted
Franchisee Program; provided that:
(a) except for the Guaranty Obligations permitted pursuant to Section 11.1(r);
no portion of the Debt or any other obligations (contingent or otherwise) of any such Person
(i) may be guaranteed by the Borrower or any of its Subsidiaries, (ii) may be recourse to,
or obligate, the Borrower or any of its Subsidiaries in any way or (iii) may subject any
property or asset of the Borrower or any of its Subsidiaries, directly or indirectly,
contingently or otherwise, to the satisfaction thereof;
(b) the Borrower and its Subsidiaries may not have any material contract, agreement,
arrangement or understanding with any such Person other than on terms no less favorable to
the Borrower or any of its Subsidiaries than those that might be obtained at the time from
Persons that are not Affiliates of the Borrower or any of its Subsidiaries;
(c) the Borrower and its Subsidiaries may not (i) have any obligation to maintain or
preserve the financial condition of any such Person (except for the Guaranty Obligations
permitted pursuant to Section 11.1(r)) or (ii) cause any such Person to achieve
certain levels of operating results;
(d) such Person shall not own or hold any assets, or conduct any operations, other
than those reasonably necessary to comply with the terms the Permitted Franchisee Financing
Program to which such Person is a party; and
(e) such Person shall not incur, assume or suffer to exist any Debt other than Debt
under or relating to the Permitted Franchisee Financing Program to which such Person is a
party.
Permitted Sale-Leaseback Transaction means any sale and leaseback transaction with
any Person providing for the leasing by the Borrower or any of its Restricted Subsidiaries of real
or personal property of (a) existing restaurant units owned by the Borrower or any Restricted
Subsidiary on the Closing Date and held for resale as set forth on Schedule 1.1(c), (b)
newly created restaurant units not in existence on the Closing Date, (c) existing restaurant units
owned by any franchisee of the Borrower or lessor to the Borrower or any of its Subsidiaries that
are acquired by the Borrower after the Closing Date or (d) the Innovation Center Property;
provided that, in each case, the restaurant unit or units (or the Innovation Center
Property) are sold by the Borrower or such Restricted Subsidiary for fair value and cash
consideration only; and provided further that, the aggregate amount of gross proceeds for
all such sales in any Fiscal Year of the Borrower shall not exceed $115,000,000.
Permitted Senior Notes means senior unsecured notes issued by the Borrower in an
aggregate principal amount not to exceed $250,000,000; provided that:
(a) no Default or Event of Default shall exist at the time of such issuance or after giving
effect thereto;
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(b) the Borrower shall deliver an Officers Compliance Certificate to the Administrative Agent
demonstrating pro forma compliance with the covenants contained in Sections
10.1 and 10.2 both before and immediately after giving effect to such issuance
(including (1) the incurrence of Debt in connection therewith, (2) the prepayment of term Debt in
connection therewith and (3) the prepayment of revolving Debt in connection therewith to the extent
that the commitment with respect to such revolving Debt is permanently reduced at the time of such
prepayment);
(c) the terms and conditions of such notes (other than the interest rate and any original
issue discount, which shall be consistent with the then-market interest rate and original issue
discount for such type of senior unsecured notes (as reasonably determined in good faith by the
board of directors of the Borrower)) shall be reasonably satisfactory to the Administrative Agent;
(d) the final maturity date of any such notes shall be no earlier than the date that is six
(6) months after the later of (i) the date specified in Section 2.6(a) and (ii) the date
specified in clause (a) of the definition of Term Loan Maturity Date and shall not require any
scheduled amortization or scheduled repayment of the principal thereof prior to its final maturity
date; and
(e) the Net Cash Proceeds of such issuance shall be used to prepay the Term Loan and, to the
extent applicable, to temporarily prepay the Revolving Credit Loans pursuant to Section
4.4(b).
Person means an individual, corporation, limited liability company, partnership,
association, trust, business trust, joint venture, joint stock company, pool, syndicate, sole
proprietorship, unincorporated organization, Governmental Authority or any other form of entity or
group thereof.
Prime Rate means, at any time, the rate of interest per annum publicly announced
from time to time by the Administrative Agent as its prime rate. Each change in the Prime Rate
shall be effective as of the opening of business on the day such change in such prime rate occurs.
The parties hereto acknowledge that the rate announced publicly by the Administrative Agent as its
prime rate is an index or base rate and shall not necessarily be its lowest or best rate charged to
its customers or other banks.
Qualified Capital Stock means any Capital Stock that is not Disqualified Capital
Stock.
Register has the meaning assigned thereto in Section 14.10(c).
Regulation U means Regulation U of the Board of Governors of the Federal Reserve
System (12 C.F.R. 221).
Regulation X means Regulation X of the Board of Governors of the Federal Reserve
System (12 C.F.R. 224).
Reimbursement Obligation means the obligation of the Borrower to reimburse the
Issuing Lender pursuant to Section 3.5 for amounts drawn under Letters of Credit.
20
Related Parties means, with respect to any Person, such Persons Affiliates and the
partners, directors, officers, employees, agents and advisors of such Person and of such Persons
Affiliates.
Rental Expense means, with respect to the Borrower and its Subsidiaries (other than
any Permitted Franchisee Financing SPE) for any period, all rental expenses with respect to
Operating Leases (including, without limitation, any rental expenses incurred in connection with a
Permitted Sale-Leaseback Transaction) of the Borrower and its Subsidiaries (other than any
Permitted Franchisee Financing SPE) for such period, net of all cash received from rental payments
made by sublessees to the Borrower or any of its Subsidiaries (other than any Permitted Franchisee
Financing SPE) during such period, determined on a Consolidated basis in accordance with GAAP.
Replaced Lender has the meaning assigned thereto in Section 5.12(c).
Replacement Lender has the meaning assigned thereto in Section 5.12(c).
Required Lenders means, at any date, (a) any combination of Lenders holding more
than fifty percent (50%) of the sum of (i) the aggregate amount of the Revolving Credit Commitment
plus (ii) the aggregate outstanding principal amount of the Term Loan or (b) if the
Revolving Credit Commitment has been terminated, any combination of Lenders holding more than fifty
percent (50%) of the aggregate Extensions of Credit; provided that the Revolving Credit
Commitment of, and the portion of the Extensions of Credit, as applicable, held or deemed held by,
any Defaulting Lender shall be excluded for purposes of making a determination of Required Lenders.
Required Revolving Credit Lenders means, at any date, any combination of Revolving
Credit Lenders holding more than fifty percent (50%) of the sum of the aggregate amount of the
Revolving Credit Commitment or, if the Revolving Credit Commitment has been terminated, any
combination of Revolving Credit Lenders holding more than fifty percent (50%) of the aggregate
Extensions of Credit under the Revolving Credit Facility; provided that the Revolving
Credit Commitment of, and the portion of the Extensions of Credit under the Revolving Credit
Facility, as applicable, held or deemed held by, any Defaulting Lender shall be excluded for
purposes of making a determination of Required Revolving Credit Lenders.
Responsible Officer means, as to any Person, any of the following: the chief
executive officer, chief financial officer or treasurer of such Person or any other officer of such
Person reasonably acceptable to the Administrative Agent. Any document delivered hereunder or
under any other Loan Document that is signed by a Responsible Officer of a Person shall be
conclusively presumed to have been authorized by all necessary corporate, partnership and/or other
action on the part of such Person and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Person.
Restricted Subsidiary means any Subsidiary of the Borrower that is not Unrestricted
Subsidiary.
Revolving Credit Commitment means (a) as to any Lender, the obligation of such
Lender to make Revolving Credit Loans to and issue or participate in Letters of Credit issued for
21
the account of the Borrower hereunder in an aggregate principal amount at any time outstanding
not to exceed the amount set forth opposite such Lenders name on the Register, as such amount may
be reduced or modified at any time or from time to time pursuant to the terms hereof (including,
without limitation, Section 5.14), and (b) as to all Lenders, the aggregate commitment of
all Lenders to make Revolving Credit Loans and issue and participate in Letters of Credit, as such
amount may be reduced or increased at any time or from time to time pursuant to the terms hereof
(including, without limitation, Section 5.14). The Revolving Credit Commitment of all
Lenders on the Closing Date shall be Four Hundred Million Dollars ($400,000,000).
Revolving Credit Commitment Percentage means, as to any Lender at any time, the
ratio of (a) the amount of the Revolving Credit Commitment of such Lender to (b) the Revolving
Credit Commitments of all Lenders.
Revolving Credit Facility means the revolving credit facility established pursuant
to Article II of this Agreement.
Revolving Credit Lender means each Lender with a Revolving Credit Commitment.
Revolving Credit Loan means any revolving credit loan made to the Borrower pursuant
to Section 2.1, and all such revolving credit loans collectively as the context requires.
Revolving Credit Maturity Date means the earliest of the dates referred to in
Section 2.6.
Revolving Credit Note means a promissory note made by the Borrower in favor of a
Lender evidencing the Revolving Credit Loans made by such Lender, substantially in the form of
Exhibit A-1, and any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.
S&P means Standard & Poors Ratings Services, a division of The McGraw-Hill
Companies, Inc. and any successor thereto.
Sanctioned Entity means (a) an agency of the government of, (b) an organization
directly or indirectly controlled by, or (c) a person resident in a country that is subject to a
sanctions program identified on the list maintained by OFAC and available at
http://www.treas.gov/offices/enforcement/ofac/programs, or as otherwise published from time
to time as such program may be applicable to such agency, organization or person.
Sanctioned Person means a person named on the list of Specially Designated Nationals
or Blocked Persons maintained by OFAC available at
http://www.treas.gov/offices/enforcement/ofac/sdn/index.html, or as otherwise published
from time to time.
SEC means the Securities and Exchange Commission, or any Governmental Authority
succeeding to any of its principal functions.
22
Secured Parties means the Administrative Agent, the Lenders, the Issuing Lender
and/or any party to a Hedging Agreement that was a Lender or an Affiliate of a Lender at the time
such Hedging Agreement was executed.
Security Documents means the collective reference to the Guaranty Agreement, the
Collateral Agreement and each other agreement or writing pursuant to which the Borrower or any
Restricted Subsidiary thereof purports to pledge or grant a security interest in any property or
assets securing the Obligations or any such Person purports to guaranty the payment and/or
performance of the Obligations, in each case, as amended, restated, supplemented or otherwise
modified from time to time.
Solvent means, as to the Borrower and its Restricted Subsidiaries on a particular
date, that any such Person (a) has capital sufficient to carry on its business and transactions and
all business and transactions in which it is about to engage and is able to pay its debts as they
mature, (b) owns property having a value, both at fair valuation and at present fair saleable
value, greater than the amount required to pay its probable liabilities (including contingencies),
and (c) does not believe that it will incur debts or liabilities beyond its ability to pay such
debts or liabilities as they mature.
Subordinated Debt means the collective reference to any Debt of the Borrower or any
Restricted Subsidiary subordinated in right and time of payment to the Obligations with a maturity
date that is no earlier than the date that is six (6) months after the later of (a) the date
specified in Section 2.6(a) and (b) the date specified in clause (a) of the definition of
Term Loan Maturity Date and containing (i) subordination terms satisfactory to the Administrative
Agent and (ii) such other terms and conditions (other than the interest rate and any original issue
discount, which shall be consistent with the then-market interest rate and original issue discount
for such type of subordinated debt (as reasonably determined in good faith by the board of
directors of the Borrower)) that are reasonably satisfactory to the
Administrative Agent
Subsidiary means as to any Person, any corporation, partnership, limited liability
company or other entity of which more than fifty percent (50%) of the outstanding Capital Stock
having ordinary voting power to elect a majority of the board of directors or other managers of
such corporation, partnership, limited liability company or other entity is at the time owned by or
the management is otherwise controlled by such Person (irrespective of whether, at the time,
Capital Stock of any other class or classes of such corporation, partnership, limited liability
company or other entity shall have or might have voting power by reason of the happening of any
contingency). Unless otherwise qualified, references to Subsidiary or Subsidiaries herein shall
refer to those of the Borrower; provided that, notwithstanding the foregoing, the
Unrestricted Subsidiaries shall not be deemed to be Subsidiaries for the purposes of Articles
X and XI of this Agreement.
Swingline Commitment means the lesser of (a) Twenty Million Dollars ($20,000,000)
and (b) the Revolving Credit Commitment.
Swingline Facility means the swingline facility established pursuant to Section
2.2.
Swingline Lender means Wells Fargo in its capacity as swingline lender hereunder.
23
Swingline Loan means any swingline loan made by the Swingline Lender to the Borrower
pursuant to Section 2.2, and all such swingline loans collectively as the context requires.
Swingline Note means a promissory note made by the Borrower in favor of the
Swingline Lender evidencing the Swingline Loans made by the Swingline Lender, substantially in the
form of Exhibit A-2, and any amendments, supplements and modifications thereto, any
substitutes therefor, and any replacements, restatements, renewals or extensions thereof, in whole
or in part.
Swingline Termination Date means the first to occur of (a) the resignation of Wells
Fargo as Administrative Agent in accordance with Section 13.6 and (b) the Revolving Credit
Maturity Date.
Synthetic Lease means any synthetic lease, tax retention operating lease,
off-balance sheet loan or similar off-balance sheet financing product where such transaction is
considered borrowed money indebtedness for tax purposes but is classified as an Operating Lease in
accordance with GAAP.
Taxes means all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any Governmental Authority, including
any interest, additions to tax or penalties applicable thereto.
Term Loan means the term loan to be made to the Borrower by the Lenders pursuant to
Section 4.1.
Term Loan Commitment means (a) as to any Lender, the obligation of such Lender to
make the Term Loan to the account of the Borrower hereunder in an aggregate principal amount not to
exceed the amount set forth opposite such Lenders name on the Register, as such amount may be
reduced or otherwise modified at any time or from time to time pursuant to the terms hereof and (b)
as to all Lenders, the aggregate commitment of all Lenders to make the Term Loan. The Term Loan
Commitment of all Lenders as of the Closing Date shall be Two Hundred Million Dollars
($200,000,000).
Term Loan Facility means the term loan facility established pursuant to Article
IV of this Agreement.
Term Loan Lender means any Lender with a Term Loan Commitment or holding a portion
of the outstanding Term Loan.
Term Loan Maturity Date means the first to occur of (a) June 29, 2015 or (b) the
date of termination by the Administrative Agent on behalf of the Lenders pursuant to Section
12.2(a).
Term Loan Percentage means, as to any Lender, (a) prior to making the Term Loan, the
ratio of (i) the Term Loan Commitment of such Lender to (ii) the Term Loan Commitments of all
Lenders and (b) after the Term Loan is made, the ratio of (i) the outstanding principal balance of
the Term Loan of such Lender to (ii) the aggregate outstanding principal balance of the Term Loan
of all Lenders.
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Term Note means a promissory note made by the Borrower in favor of a Lender
evidencing the portion of the Term Loan made by such Lender, substantially in the form of
Exhibit A-3, and any amendments, supplements and modifications thereto, any substitutes
therefor, and any replacements, restatements, renewals or extension thereof, in whole or in part.
Termination Event means except for any such event or condition that could not
reasonably be expected to have a Material Adverse Effect: (a) a Reportable Event described in
Section 4043 of ERISA for which the notice requirement has not been waived by the PBGC or by
applicable regulation, or (b) the withdrawal of the Borrower or any ERISA Affiliate from a Pension
Plan with two or more contributing sponsors during a plan year in which it was a substantial
employer as defined in Section 4001(a)(2) of ERISA resulting in liability to the Borrower or any
ERISA Affiliate pursuant to Section 4063 or 4064 of ERISA, or (c) the termination of a Pension
Plan, the filing of a notice of intent to terminate a Pension Plan or the treatment of a Pension
Plan amendment as a termination, under Section 4041 of ERISA, if such termination, filing or
treatment could reasonably be expected to result in the Borrower making additional contributions to
a Pension Plan, or (d) the institution of proceedings to terminate, or the appointment of a trustee
with respect to, any Pension Plan by the PBGC, or (e) any other event or condition which would
constitute grounds under Section 4042(a) of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan, or (f) the imposition of a Lien pursuant to Section 412(n)
of the Code or Section 302 of ERISA, or (g) the incurrence by the Borrower or any ERISA Affiliate
of any withdrawal liability with respect to the partial or complete withdrawal of the Borrower or
any ERISA Affiliate from a Multiemployer Plan, or (h) any event or condition which results in the
reorganization or insolvency of a Multiemployer Plan under Sections 4241 or 4245 of ERISA, or (i)
any event or condition which results in the termination of a Multiemployer Plan under Section 4041A
of ERISA or the institution by PBGC of proceedings to terminate a Multiemployer Plan under Section
4042 of ERISA.
Termination Value means, in respect of any one or more Hedging Agreements, after
taking into account the effect of any legally enforceable netting agreement relating to such
Hedging Agreements, (a) for any date on or after the date such Hedging Agreements have been closed
out and termination value(s) determined in accordance therewith, any monetary obligations of the
Borrower and its Subsidiaries in respect of such termination value(s), and (b) for any date prior
to the date referenced in clause (a), the amount(s) determined as the mark-to- market value(s) for
any Hedging Agreements upon which the Borrower and its Subsidiaries would have a monetary
obligation if such Hedging Agreement were to be closed out and a termination value were to be
determined on the date of calculation, as determined based upon one or more mid-market or other
readily available quotations provided by any recognized dealer in such Hedging Agreements (which
may include a Lender or any Affiliate of a Lender).
Trading With the Enemy Act means the Trading With The Enemy Act, Pub. L. No. 65-91,
40 Stat. 411 (1917), as amended or modified from time to time.
Uniform Customs means the Uniform Customs and Practice for Documentary Credits (1993
Revision), effective January, 1994 International Chamber of Commerce Publication No. 600.
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UCC means the Uniform Commercial Code as in effect in the State of New York, as
amended or modified from time to time.
United States means the United States of America.
Unrestricted Subsidiary means any Subsidiary of the Borrower listed on Schedule
1.1(b) or which is designated as an Unrestricted Subsidiary after the Closing Date pursuant to
Section 9.9, provided that at all times such (a) Unrestricted Subsidiarys
obligations are non-recourse to the Borrower and its Subsidiaries and (b) Unrestricted Subsidiary
individually and collectively with all other Unrestricted Subsidiaries meets the requirements set
forth in Section 9.9; provided further that, notwithstanding anything to
the contrary in this Agreement or any other Loan Document, any Subsidiary that (i) guaranties or
provides collateral for the Permitted Senior Notes (if any) or any Subordinated Debt (if any) or
(ii) is designated as a Restricted Subsidiary under, and as defined in, the Permitted Senior
Notes (if any), or any Subordinated Debt (if any), shall, in each case, immediately cease to be an
Unrestricted Subsidiary upon such designation or its entry into such guaranty or its provision of
collateral for the Permitted Senior Notes (if any) or any Subordinated Debt (if any).
Wells Fargo means Wells Fargo Bank, National Association, a national banking
association, and its successors.
Wholly Owned means, with respect to a Subsidiary, that all of the shares of Capital
Stock of such Subsidiary are, directly or indirectly, owned or controlled by the Borrower and/or
one or more of its Wholly Owned Subsidiaries (except for directors qualifying shares or other
shares required by Applicable Law to be owned by a Person other than the Borrower and/or one or
more of its Wholly Owned Subsidiaries).
SECTION 1.2. Other Definitions and Provisions. With reference to this Agreement and
each other Loan Document, unless otherwise specified herein or in such other Loan Document: (a) the
definitions of terms herein shall apply equally to the singular and plural forms of the terms
defined, (b) whenever the context may require, any pronoun shall include the corresponding
masculine, feminine and neuter forms, (c) the words include, includes and including shall be
deemed to be followed by the phrase without limitation, (d) the word will shall be construed to
have the same meaning and effect as the word shall, (e) any reference herein to any Person shall
be construed to include such Persons successors and assigns, (f) the words herein, hereof and
hereunder, and words of similar import, shall be construed to refer to this Agreement in its
entirety and not to any particular provision hereof, (g) all references herein to Articles,
Sections, Exhibits and Schedules shall be construed to refer to Articles and Sections of, and
Exhibits and Schedules to, this Agreement, (h) the words asset and property shall be construed
to have the same meaning and effect and to refer to any and all tangible and intangible assets and
properties, including cash, securities, accounts and contract rights, (i) the term documents
includes any and all instruments, documents, agreements, certificates, notices, reports, financial
statements and other writings, however evidenced, whether in physical or electronic form, and (j)
in the computation of periods of time from a specified date to a later specified date, the word
from means from and including; the words to and until each mean to but excluding; and the
word through means to and including.
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SECTION 1.3. Accounting Terms. All accounting terms not specifically or completely
defined herein shall be construed in conformity with, and all financial data (including financial
ratios and other financial calculations) required to be submitted pursuant to this Agreement shall
be prepared in conformity with GAAP, as in effect from time to time, applied on a consistent basis
as of any applicable date of determination, except as otherwise specifically prescribed
herein. Notwithstanding the foregoing, all financial statements delivered hereunder shall be
prepared, and all financial covenants contained herein shall be calculated, without giving effect
to any election under the Statement of Financial Accounting Standards No. 159 (or any similar
accounting principle) permitting a Person to value its financial liabilities or Debt at the fair
value thereof.
SECTION 1.4. UCC Terms. Terms defined in the UCC in effect on the Closing Date and not
otherwise defined herein shall, unless the context otherwise indicates, have the meanings provided
by those definitions. Subject to the foregoing, the term UCC refers, as of any date of
determination, to the UCC then in effect.
SECTION 1.5. Rounding. Any financial ratios required to be maintained by the Borrower
pursuant to this Agreement shall be calculated by dividing the appropriate component by the other
component, carrying the result to one place more than the number of places by which such ratio is
expressed herein and rounding the result up or down to the nearest number (with a rounding-up if
there is no nearest number).
SECTION 1.6. References to Agreement and Laws. Unless otherwise expressly provided
herein, (a) references to formation documents, governing documents, agreements (including the Loan
Documents) and other contractual instruments shall be deemed to include all subsequent amendments,
restatements, extensions, supplements and other modifications thereto, but only to the extent that
such amendments, restatements, extensions, supplements and other modifications are not prohibited
by any Loan Document; and (b) references to any Applicable Law shall include all statutory and
regulatory provisions consolidating, amending, replacing, supplementing or interpreting such
Applicable Law.
SECTION 1.7. Times of Day. Unless otherwise specified, all references herein to times
of day shall be references to Eastern time (daylight or standard, as applicable).
SECTION 1.8. Letter of Credit Amounts. Unless otherwise specified, all references
herein to the amount of a Letter of Credit at any time shall be deemed to mean the maximum face
amount of such Letter of Credit that is available to be drawn at such time; provided that, for any
purpose of determining the total amount of L/C Obligations under this Agreement or any other Loan
Document with respect to borrowing availability under any credit facility provided for in this
Agreement or any other Loan Document, the amount of a Letter of Credit at any time shall be deemed
to mean the maximum face amount of such Letter of Credit after giving effect to all increases
thereof contemplated by such Letter of Credit or the Application therefor, whether or not such
maximum face amount is in effect at such time (as such amount may be reduced by any amount drawn,
reimbursed and no longer available under such Letter of Credit).
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ARTICLE II
REVOLVING CREDIT FACILITY
SECTION 2.1. Revolving Credit Loans. Subject to the terms and conditions of this
Agreement, and in reliance upon the representations and warranties set forth herein, each Revolving
Credit Lender severally agrees to make Revolving Credit Loans to the Borrower from time to time
from the Closing Date through, but not including, the Revolving Credit Maturity Date as requested
by the Borrower in accordance with the terms of Section 2.3; provided, that (a) the
aggregate principal amount of all outstanding Revolving Credit Loans (after giving effect to any
amount requested) shall not exceed the Revolving Credit Commitment less the sum of all
outstanding Swingline Loans and L/C Obligations, (b) the principal amount of outstanding Revolving
Credit Loans from any Revolving Credit Lender to the Borrower shall not at any time exceed such
Lenders Revolving Credit Commitment less such Lenders Revolving Credit Commitment
Percentage of outstanding L/C Obligations and outstanding Swingline Loans and (c) no more than
$250,000,000 of Revolving Credit Loans and Swingline Loans may be borrowed on the Closing Date.
Each Revolving Credit Loan made by a Lender shall be in a principal amount equal to such Lenders
Revolving Credit Commitment Percentage of the aggregate principal amount of Revolving Credit Loans
requested on such occasion. Subject to the terms and conditions hereof, the Borrower may borrow,
repay and reborrow Revolving Credit Loans hereunder until the Revolving Credit Maturity Date.
SECTION 2.2. Swingline Loans.
(a) Availability. Subject to the terms and conditions of this Agreement, the Swingline
Lender agrees, in its discretion, to make Swingline Loans to the Borrower from time to time from
the Closing Date through, but not including, the Swingline Termination Date; provided, that
(i) the aggregate principal amount of all outstanding Swingline Loans (after giving effect to any
amount requested), shall not exceed the lesser of (A) the Revolving Credit Commitment less
the sum of all outstanding Revolving Credit Loans and the L/C Obligations and (B) the Swingline
Commitment and (ii) no more than $250,000,000 of Revolving Credit Loans and Swingline Loans may be
borrowed on the Closing Date; provided further that the Swingline Lender will not
make a Swingline Loan from and after the date which is one (1) day after it has received written
notice from the Administrative Agent (upon the request of the Required Lenders) that one or more of
the applicable conditions to Extensions of Credit specified in Section 6.2 is not then
satisfied until such conditions are satisfied or waived in accordance with the provisions of this
Agreement (and the Swingline Lender shall be entitled to conclusively rely on any such notice and
shall have no obligation to independently investigate the accuracy of such notice and shall have no
liability to the Borrower in respect thereof if such notice proves to be inaccurate).
(b) Refunding. Swingline Loans shall be refunded by the Revolving Credit Lenders on
demand by the Swingline Lender. Such refundings shall be made by the Revolving Credit Lenders in
accordance with their respective Revolving Credit Commitment Percentages and shall thereafter be
reflected as Revolving Credit Loans of the Revolving Credit Lenders on the books and records of the
Administrative Agent. Each Revolving Credit Lender shall fund its respective Revolving Credit
Commitment Percentage of Revolving Credit Loans as required to repay Swingline Loans outstanding to
the Swingline Lender upon demand by the Swingline
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Lender but in no event later than 3:00 p.m. on the next succeeding Business Day after such
demand is made. No Revolving Credit Lenders obligation to fund its respective Revolving Credit
Commitment Percentage of a Swingline Loan shall be affected by any other Revolving Credit Lenders
failure to fund its Revolving Credit Commitment Percentage of a Swingline Loan, nor shall any
Revolving Credit Lenders Revolving Credit Commitment Percentage be increased as a result of any
such failure of any other Revolving Credit Lender to fund its Revolving Credit Commitment
Percentage of a Swingline Loan.
(i) The Borrower shall pay to the Swingline Lender on demand the amount of such
Swingline Loans to the extent amounts received from the Revolving Credit Lenders are
not sufficient to repay in full the outstanding Swingline Loans requested or
required to be refunded. In addition, the Borrower hereby authorizes the
Administrative Agent to charge any account maintained by the Borrower with the
Swingline Lender (up to the amount available therein) in order to immediately pay
the Swingline Lender the amount of such Swingline Loans to the extent amounts
received from the Revolving Credit Lenders are not sufficient to repay in full the
outstanding Swingline Loans requested or required to be refunded. If any portion of
any such amount paid to the Swingline Lender shall be recovered by or on behalf of
the Borrower from the Swingline Lender in bankruptcy or otherwise, the loss of the
amount so recovered shall be ratably shared among all the Revolving Credit Lenders
in accordance with their respective Revolving Credit Commitment Percentages (unless
the amounts so recovered by or on behalf of the Borrower pertain to a Swingline Loan
extended after the occurrence and during the continuance of an Event of Default of
which the Administrative Agent has received notice in the manner required pursuant
to Section 13.3 and which such Event of Default has not been waived by the
Required Lenders or the Lenders, as applicable).
(ii) Each Revolving Credit Lender acknowledges and agrees that its obligation
to refund Swingline Loans in accordance with the terms of this Section 2.2
is absolute and unconditional and shall not be affected by any circumstance
whatsoever, including, without limitation, non-satisfaction of the conditions set
forth in Article VI. Further, each Revolving Credit Lender agrees and
acknowledges that if, prior to the refunding of any outstanding Swingline Loans
pursuant to this Section 2.2, one of the events described in Section
12.1(h) or (i) shall have occurred, each Revolving Credit Lender will,
on the date the applicable Revolving Credit Loan would have been made, purchase an
undivided participating interest in the Swingline Loan to be refunded in an amount
equal to its Revolving Credit Commitment Percentage of the aggregate amount of such
Swingline Loan. Each Revolving Credit Lender will immediately transfer to the
Swingline Lender, in immediately available funds, the amount of its participation
and upon receipt thereof the Swingline Lender will deliver to such Revolving Credit
Lender a certificate evidencing such participation dated the date of receipt of such
funds and for such amount. Whenever, at any time after the Swingline Lender has
received from any Revolving Credit Lender such Revolving Credit Lenders
participating interest in a Swingline Loan, the Swingline Lender receives any
payment on account thereof, the Swingline Lender will distribute to
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such Revolving Credit Lender its participating interest in such amount
(appropriately adjusted, in the case of interest payments, to reflect the period of
time during which such Revolving Credit Lenders participating interest was
outstanding and funded).
(c) Defaulting Lenders. Notwithstanding anything to the contrary contained in this
Section 2.2, the Swingline Lender shall not be obligated to make any Swingline Loan at a
time when any other Revolving Credit Lender is a Defaulting Lender, unless the Swingline Lender has
entered into arrangements (which may include the delivery of cash collateral) with the Borrower or
such Defaulting Lender which are satisfactory to the Swingline Lender to eliminate the Swingline
Lenders Fronting Exposure (after giving effect to Section 5.14(c)) with respect to any
such Defaulting Lender.
SECTION 2.3. Procedure for Advances of Revolving Credit and Swingline Loans.
(a) Requests for Borrowing. The Borrower shall give the Administrative Agent
irrevocable prior written notice substantially in the form attached hereto as Exhibit B (a
Notice of Borrowing) not later than 2:00 p.m. (i) on the same Business Day as each Base
Rate Loan and each Swingline Loan and (ii) at least three (3) Business Days before each LIBOR Rate
Loan, of its intention to borrow, specifying (A) the date of such borrowing, which shall be a
Business Day, (B) the amount of such borrowing, which shall be (x) with respect to Base Rate Loans
(other than Swingline Loans) in an aggregate principal amount of $1,000,000 or a whole multiple of
$500,000 in excess thereof, (y) with respect to LIBOR Rate Loans in an aggregate principal amount
of $5,000,000 or a whole multiple of $500,000 in excess thereof and (z) with respect to Swingline
Loans in an aggregate principal amount of $100,000 or a whole multiple of $100,000 in excess
thereof, (C) whether such Loan is to be a Revolving Credit Loan or Swingline Loan, (D) in the case
of a Revolving Credit Loan whether the Loans are to be LIBOR Rate Loans or Base Rate Loans, and (E)
in the case of a LIBOR Rate Loan, the duration of the Interest Period applicable thereto. A Notice
of Borrowing received after 2:00 p.m. shall be deemed received on the next Business Day. The
Administrative Agent shall promptly notify the Lenders of each Notice of Borrowing.
Notwithstanding anything to the contrary contained in this Agreement, no Revolving Credit Loans may
be made as LIBOR Rate Loans prior to the date that is three (3) Business Days after the Closing
Date unless, at least three (3) Business Days prior to the proposed borrowing date of any proposed
Revolving Credit Loans, the Borrower has delivered to the Administrative Agent a letter in form and
substance reasonably satisfactory to the Administrative Agent indemnifying the Lenders in the
manner set forth in Section 5.9 of this Agreement and a Notice of Borrowing with respect
thereto.
(b) Disbursement of Revolving Credit and Swingline Loans. Not later than 3:00 p.m. on
the proposed borrowing date, (i) each Lender will make available to the Administrative Agent, for
the account of the Borrower, at the office of the Administrative Agent in funds immediately
available to the Administrative Agent, such Lenders Revolving Credit Commitment Percentage of the
Revolving Credit Loans to be made on such borrowing date and (ii) the Swingline Lender will make
available to the Administrative Agent, for the account of the Borrower, at the office of the
Administrative Agent in funds immediately available to the Administrative Agent, the Swingline
Loans to be made on such borrowing date. The Borrower hereby irrevocably authorizes the
Administrative Agent to disburse the proceeds of each
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borrowing requested pursuant to this Section 2.3 in immediately available funds by
crediting or wiring such proceeds to the deposit account of the Borrower identified in the most
recent notice substantially in the form of Exhibit C hereto (a Notice of Account
Designation) delivered by the Borrower to the Administrative Agent or as may be otherwise
agreed upon by the Borrower and the Administrative Agent from time to time. Subject to Section
5.7 hereof, the Administrative Agent shall not be obligated to disburse the portion of the
proceeds of any Revolving Credit Loan requested pursuant to this Section 2.3 to the extent
that any Lender has not made available to the Administrative Agent its Revolving Credit Commitment
Percentage of such Loan. Revolving Credit Loans to be made for the purpose of refunding Swingline
Loans shall be made by the Revolving Credit Lenders as provided in Section 2.2(b).
SECTION 2.4. Repayment of Revolving Credit and Swingline Loans.
(a) Repayment on Termination Date. The Borrower hereby agrees to repay the outstanding
principal amount of (i) all Revolving Credit Loans in full on the Revolving Credit Maturity Date,
and (ii) all Swingline Loans in accordance with Section 2.2(b), together, in each case,
with all accrued but unpaid interest thereon.
(b) Mandatory Repayment of Revolving Credit Loans. If at any time the outstanding
principal amount of all Revolving Credit Loans plus the sum of all outstanding Swingline
Loans and L/C Obligations exceeds the Revolving Credit Commitment, the Borrower agrees to repay
immediately upon notice from the Administrative Agent, by payment to the Administrative Agent for
the account of the Lenders, Extensions of Credit in an amount equal to such excess, with each such
repayment applied first to the principal amount of outstanding Swingline Loans,
second to the principal amount of outstanding Revolving Credit Loans and third,
with respect to any Letters of Credit then outstanding, a payment of cash collateral into a cash
collateral account opened by the Administrative Agent, for the benefit of the Lenders in an amount
equal to the aggregate then undrawn and unexpired amount of such Letters of Credit (such cash
collateral to be applied in accordance with Section 12.2(b)).
(c) Mandatory Repayment from Excess Proceeds. In the event proceeds remain after the
prepayments of Term Loan Facility pursuant to Section 4.4(b)(i), the amount of such excess
proceeds shall be used on the date of the required prepayment under Section 4.4(b)(i) to
prepay the outstanding principal amount of the Revolving Credit Loans, without a corresponding
reduction of the Revolving Credit Commitment.
(d) Optional Repayments. The Borrower may at any time and from time to time repay the
Revolving Credit Loans and the Swingline Loans, in whole or in part, upon at least (i) three (3)
Business Days irrevocable notice to the Administrative Agent with respect to LIBOR Rate Loans,
(ii) one (1) Business Day irrevocable notice with respect to Base Rate Loans and (iii) same day
notice by 2:00 p.m. with respect to Swingline Loans, substantially in the form attached hereto as
Exhibit D (a Notice of Prepayment) specifying the date and amount of repayment
and whether the repayment is of LIBOR Rate Loans, Base Rate Loans, Swingline Loans or a combination
thereof, and, if of a combination thereof, the amount allocable to each. Upon receipt of such
notice, the Administrative Agent shall promptly notify each Lender. If any such notice is given,
the amount specified in such notice shall be due and payable on the date set forth in such notice.
Partial repayments shall be in an aggregate amount
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of $1,000,000 or a whole multiple of $500,000 in excess thereof with respect to Base Rate
Loans (other than Swingline Loans), $5,000,000 or a whole multiple of $1,000,000 in excess thereof
with respect to LIBOR Rate Loans and $100,000 or a whole multiple of $100,000 in excess thereof
with respect to Swingline Loans. A Notice of Prepayment received after 2:00 p.m. shall be deemed
received on the next Business Day. Each such repayment shall be accompanied by any amount required
to be paid pursuant to Section 5.9 hereof.
(e) Limitation on Repayment of LIBOR Rate Loans. The Borrower may not repay any LIBOR
Rate Loan on any day other than on the last day of the Interest Period applicable thereto unless
such repayment is accompanied by any amount required to be paid pursuant to Section 5.9
hereof.
(f) Hedging Agreements. No repayment or prepayment pursuant to this shall affect any
of the Borrowers obligations under any Hedging Agreement.
SECTION 2.5. Permanent Reduction of the Revolving Credit Commitment.
(a) Voluntary Reduction. The Borrower shall have the right at any time and from time
to time, upon at least three (3) Business Days prior written notice to the Administrative Agent, to
permanently reduce, without premium or penalty, (i) the entire Revolving Credit Commitment at any
time or (ii) portions of the Revolving Credit Commitment, from time to time, in an aggregate
principal amount not less than $5,000,000 or any whole multiple of $1,000,000 in excess thereof.
The amount of each partial permanent reduction shall permanently reduce the Lenders Revolving
Credit Commitments pro rata in accordance with their respective Revolving Credit
Commitment Percentages. If any such notice is given, the amount specified in such notice shall be
due and payable on the date set forth in such notice.
(b) Mandatory Reduction. If at any time excess proceeds remain after the prepayment of
the Term Loan pursuant to Section 4.4(b)(ii) through (iv), the Revolving Credit
Commitment shall be permanently reduced on the date of the required prepayment under Section
4.4(b)(ii) through (iv) by an amount equal to the amount of such excess proceeds.
(c) Corresponding Payment. Each permanent reduction permitted or required pursuant to
this Section 2.5 shall be accompanied by a payment of principal, first to the
principal amount of outstanding Swingline Loans, second to the principal amount of
outstanding Revolving Credit Loans and third to any Letters of Credit then outstanding, in
each case sufficient to reduce the aggregate outstanding Revolving Credit Loans, Swingline Loans
and L/C Obligations, as applicable, after such reduction to the Revolving Credit Commitment as so
reduced and if the Revolving Credit Commitment as so reduced is less than the aggregate amount of
all outstanding Letters of Credit, the Borrower shall be required to deposit cash collateral in a
cash collateral account opened by the Administrative Agent in an amount equal to the aggregate then
undrawn and unexpired amount of such Letters of Credit. Such cash collateral shall be applied in
accordance with Section 12.2(b). Any reduction of the Revolving Credit Commitment to zero
shall be accompanied by payment of all outstanding Revolving Credit Loans and Swingline Loans (and
furnishing of cash collateral or other arrangements satisfactory to the Issuing Lender for all L/C
Obligations, if any) and shall result in the
32
termination of the Revolving Credit Commitment and the Swingline Commitment and the Revolving
Credit Facility. Any such cash collateral shall be applied in accordance with Section
12.2(b). If the reduction of the Revolving Credit Commitment requires the repayment of any
LIBOR Rate Loan, such repayment shall be accompanied by any amount required to be paid pursuant to
Section 5.9.
SECTION 2.6. Termination of Revolving Credit Facility. The Revolving Credit Facility
shall terminate on the earliest of (a) June 29, 2015, (b) the date of termination by the Borrower
pursuant to Section 2.5 of the entire Revolving Credit Commitment, or (c) the date of
termination by the Administrative Agent on behalf of the Lenders pursuant to Section
12.2(a).
ARTICLE III
LETTER OF CREDIT FACILITY
SECTION 3.1. L/C Commitment.
(a) Availability. Subject to the terms and conditions hereof, the Issuing Lender, in
reliance on the agreements of the L/C Participants set forth in Section 3.4(a), agrees to
issue letters of credit (Letters of Credit) for the account of the Borrower on any
Business Day from the Closing Date through but not including the fifth (5th) Business Day prior to
the Revolving Credit Maturity Date in such form as may be approved from time to time by the Issuing
Lender and the Administrative Agent; provided, that the Issuing Lender shall have no
obligation to issue, and the L/C Participants shall have no obligation to participate in, any
Letter of Credit if, after giving effect to such issuance, (i) the L/C Obligations would exceed the
L/C Commitment or (ii) the aggregate principal amount of outstanding Revolving Credit Loans,
plus the aggregate principal amount of outstanding Swingline Loans, plus the
aggregate amount of L/C Obligations would exceed the Revolving Credit Commitment. Each Letter of
Credit (other than the Existing Letters of Credit) shall (A) be in a minimum amount of $25,000
unless otherwise agreed to by the Issuing Lender, (B) be a standby letter of credit issued to
support obligations of the Borrower or any of its Restricted Subsidiaries, contingent or otherwise,
incurred in the ordinary course of business, (C) expire on a date satisfactory to the Issuing
Lender and the Administrative Agent, which date shall be no later than the earlier of (1) one (1)
year after the date of its issuance (but any Letter of Credit issued hereunder may, by its terms
and consistent with the terms hereof, be renewable annually with the consent of the Issuing
Lender), and (2) the fifth (5th) Business Day prior to the Revolving Credit Maturity Date and (D)
be subject to the Uniform Customs and/or ISP98, as set forth in the Application or as determined by
the Issuing Lender and, to the extent not inconsistent therewith, the laws of the State of New
York. As of the Closing Date, each of the Existing Letters of Credit shall constitute, for all
purposes of this Agreement and the other Loan Documents, a Letter of Credit issued and outstanding
hereunder. The Issuing Lender shall not at any time be obligated to issue, and the L/C Participants
shall have no obligation to participate in, any Letter of Credit hereunder if such issuance would
conflict with, or cause the Issuing Lender or any L/C Participant to exceed any limits imposed by,
any Applicable Law. References herein to issue and derivations thereof with respect to Letters of
Credit shall also include extensions or modifications of any existing Letters of Credit, unless the
context otherwise requires.
33
(b) Defaulting Lenders. Notwithstanding anything to the contrary contained in this
Section 3.1, the Issuing Lender shall not be obligated to issue any Letter of Credit at a
time when any other Revolving Credit Lender is a Defaulting Lender, unless the Issuing Lender has
entered into arrangements (which may include the delivery of cash collateral) with the Borrower or
such Defaulting Lender which are satisfactory to the Issuing Lender to eliminate the Issuing
Lenders Fronting Exposure (after giving effect to Section 5.14(c)) with respect to any
such Defaulting Lender.
SECTION 3.2. Procedure for Issuance of Letters of Credit. The Borrower may from time
to time request that the Issuing Lender issue a Letter of Credit by delivering to the Issuing
Lender an Application therefor, completed to the satisfaction of the Issuing Lender, and such other
certificates, documents and other papers and information (L/C Supporting Documentation)
as the Issuing Lender and the Administrative Agent may request. The Borrower will contemporaneously
deliver to the Administrative Agent at the Administrative Agents Office a copy of such Application
and L/C Supporting Documentation. Upon receipt of any Application, the Issuing Lender shall process
such Application and the L/C Supporting Documentation delivered to it in connection therewith in
accordance with its customary procedures and shall, after approving the same and receiving
confirmation from the Administrative Agent that sufficient availability exists under the Revolving
Credit Facility for issuance of such Letter of Credit, subject to Section 3.1 and
Article VI hereof, promptly issue the Letter of Credit requested thereby (but in no event
shall the Issuing Lender be required to issue any Letter of Credit earlier than three (3) Business
Days after its receipt of the Application therefor and all L/C Supporting Documentation relating
thereto) by issuing the original of such Letter of Credit to the beneficiary thereof or as
otherwise may be agreed by the Issuing Lender and the Borrower; provided that the Issuing
Lender shall not issue a Letter of Credit from and after the date which is one (1) day after it has
received written notice from the Administrative Agent (upon the request of the Required Lenders)
that one or more of the applicable conditions to Extensions of Credit specified in Section
6.2 is not then satisfied until such conditions are satisfied or waived in accordance with the
provisions of this Agreement (and the Issuing Lender shall be entitled to conclusively rely on any
such notice and shall have no obligation to independently investigate the accuracy of such notice
and shall have no liability to the Borrower in respect thereof if such notice proves to be
inaccurate). The Issuing Lender shall promptly furnish to the Borrower and the Administrative Agent
a copy of such Letter of Credit and promptly notify each Revolving Credit Lender of the issuance
and upon request by any Revolving Credit Lender, furnish to such Revolving Credit Lender a copy of
such Letter of Credit and the amount of such Revolving Credit Lenders participation therein.
34
SECTION 3.3. Commissions and Other Charges.
(a) Subject to Section 5.14(f), the Borrower shall pay to the Administrative Agent,
for the account of the Issuing Lender and the L/C Participants, a letter of credit commission with
respect to each Letter of Credit in an amount equal to the face amount of such Letter of Credit
multiplied by the Applicable Margin with respect to Revolving Credit Loans that are
LIBOR Rate Loans (determined on a per annum basis). Such commission shall be payable quarterly in
arrears on the last Business Day of each calendar quarter, on the Revolving Credit Maturity Date
and thereafter on demand of the Administrative Agent. The Administrative Agent shall, promptly
following its receipt thereof, distribute to the Issuing Lender and, subject to Section
5.14(f), the L/C Participants all commissions received pursuant to this Section 3.3(a)
in accordance with their respective Revolving Credit Commitment Percentages.
(b) In addition to the foregoing commission, the Borrower shall pay the Administrative Agent,
for the account of the Issuing Lender, an issuance fee with respect to each Letter of Credit issued
hereunder pursuant to, and in accordance with, the Administrative Agents Fee Letter or as
otherwise agreed to by the Borrower and the Issuing Lender. Such issuance fee shall be billed by
the Administrative Agent and shall be payable by the Borrower in equal quarterly payments, in
arrears, on the last Business Day of each calendar quarter commencing with the first such date to
occur after the issuance of such Letter of Credit, on the Revolving Credit Maturity Date and
thereafter on demand of the Administrative Agent.
(c) In addition to the foregoing fees and commissions, the Borrower shall pay or reimburse the
Issuing Lender for such normal and customary costs and expenses as are incurred or charged by the
Issuing Lender in issuing, effecting payment under, amending or otherwise administering any Letter
of Credit.
SECTION 3.4. L/C Participations.
(a) The Issuing Lender irrevocably agrees to grant and hereby grants to each L/C Participant,
and, to induce the Issuing Lender to issue Letters of Credit hereunder, each L/C Participant
irrevocably agrees to accept and purchase and hereby accepts and purchases from the Issuing Lender,
on the terms and conditions hereinafter stated, for such L/C Participants own account and risk an
undivided interest equal to such L/C Participants Revolving Credit Commitment Percentage in the
Issuing Lenders obligations and rights under and in respect of each Letter of Credit issued
hereunder and the amount of each draft paid by the Issuing Lender thereunder. Each L/C Participant
unconditionally and irrevocably agrees with the Issuing Lender that, if a draft is paid under any
Letter of Credit for which the Issuing Lender is not reimbursed in full by the Borrower through a
Revolving Credit Loan or otherwise in accordance with the terms of this Agreement, such L/C
Participant shall pay to the Issuing Lender upon demand at the Issuing Lenders address for notices
specified herein an amount equal to such L/C Participants Revolving Credit Commitment Percentage
of the amount of such draft, or any part thereof, which is not so reimbursed.
(b) Upon becoming aware of any amount required to be paid by any L/C Participant to the
Issuing Lender pursuant to Section 3.4(a) in respect of any unreimbursed
35
portion of any payment made by the Issuing Lender under any Letter of Credit, the Issuing
Lender shall notify the Administrative Agent and each L/C Participant of the amount and due date of
such required payment and such L/C Participant shall pay to the Issuing Lender the amount specified
on the applicable due date. If any such amount is paid to the Issuing Lender after the date such
payment is due, such L/C Participant shall pay to the Issuing Lender on demand, in addition to such
amount, the product of (i) such amount, times (ii) the daily average Federal Funds Rate as
determined by the Administrative Agent during the period from and including the date such payment
is due to the date on which such payment is immediately available to the Issuing Lender,
times (iii) a fraction the numerator of which is the number of days that elapse during such
period and the denominator of which is 360. A certificate of the Issuing Lender with respect to any
amounts owing under this Section 3.4(b) shall be conclusive in the absence of manifest
error. With respect to payment to the Issuing Lender of the unreimbursed amounts described in this
Section 3.4(b), if the L/C Participants receive notice that any such payment is due (A)
prior to 1:00 p.m. on any Business Day, such payment shall be due that Business Day, and (B) after
1:00 p.m. on any Business Day, such payment shall be due on the following Business Day.
(c) Whenever, at any time after the Issuing Lender has made payment under any Letter of Credit
and has received from any L/C Participant its Revolving Credit Commitment Percentage of such
payment in accordance with this Section 3.4, the Issuing Lender receives any payment
related to such Letter of Credit (whether directly from the Borrower or otherwise, or any payment
of interest on account thereof), the Issuing Lender will distribute to such L/C Participant its
pro rata share thereof; provided, that in the event that any such payment
received by the Issuing Lender shall be required to be returned by the Issuing Lender, such L/C
Participant shall return to the Issuing Lender the portion thereof previously distributed by the
Issuing Lender to it.
SECTION 3.5. Reimbursement Obligation of the Borrower. In the event of any drawing
under any Letter of Credit, the Borrower agrees to reimburse (either with the proceeds of a
Revolving Credit Loan as provided for in this Section 3.5 or with funds from other
sources), the Issuing Lender not later than 1:00 p.m. on the next succeeding Business Day for the
amount of (a) such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred
by the Issuing Lender in connection with such payment. The Issuing Lender shall deliver written
notice of any drawing under a Letter of Credit to the Administrative Agent and the Borrower. Unless
the Borrower shall immediately notify the Issuing Lender that the Borrower intends to reimburse the
Issuing Lender for such drawing from other sources or funds, the Borrower shall be deemed to have
timely given a Notice of Borrowing to the Administrative Agent requesting that the Revolving Credit
Lenders make a Revolving Credit Loan bearing interest at the Base Rate on such date in the amount
of (a) such draft so paid and (b) any amounts referred to in Section 3.3(c) incurred by the
Issuing Lender in connection with such payment, and the Revolving Credit Lenders shall make a
Revolving Credit Loan bearing interest at the Base Rate in such amount, the proceeds of which shall
be applied to reimburse the Issuing Lender for the amount of the related drawing and costs and
expenses. Each Revolving Credit Lender acknowledges and agrees that its obligation to fund a
Revolving Credit Loan in accordance with this Section 3.5 to reimburse the Issuing Lender
for any draft paid under a Letter of Credit is absolute and unconditional and shall not be affected
by any circumstance whatsoever, including, without limitation, non-satisfaction of the conditions
set forth in Section 2.3(a) or Article VI. If the
36
Borrower has elected to pay the amount of such drawing with funds from other sources and shall
fail to reimburse the Issuing Lender as provided above, the unreimbursed amount of such drawing
shall bear interest at the rate which would be payable on any outstanding Base Rate Loans which
were then overdue from the date such amounts become payable (whether at stated maturity, by
acceleration or otherwise) until payment in full.
SECTION 3.6. Obligations Absolute. The Borrowers obligations under this Article
III (including, without limitation, the Reimbursement Obligation) shall be absolute and
unconditional under any and all circumstances and irrespective of any set-off, counterclaim or
defense to payment which the Borrower may have or have had against the Issuing Lender or any
beneficiary of a Letter of Credit or any other Person. The Borrower also agrees that the Issuing
Lender, the Administrative Agent and the L/C Participants shall not be responsible for, and the
Borrowers Reimbursement Obligation under Section 3.5 shall not be affected by, among other
things, the validity or genuineness of documents or of any endorsements thereon, even though such
documents shall in fact prove to be invalid, fraudulent or forged, or any dispute between or among
the Borrower and any beneficiary of any Letter of Credit or any other party to which such Letter of
Credit may be transferred or any claims whatsoever of the Borrower against any beneficiary of such
Letter of Credit or any such transferee. The Issuing Lender shall not be liable for any error,
omission, interruption or delay in transmission, dispatch or delivery of any message or advice,
however transmitted, in connection with any Letter of Credit, except for errors or omissions caused
by the Issuing Lenders gross negligence or willful misconduct, as determined by a court of
competent jurisdiction by final nonappealable judgment. The Borrower agrees that any action taken
or omitted by the Issuing Lender or the Administrative Agent under or in connection with any Letter
of Credit or the related drafts or documents, if done in the absence of gross negligence or willful
misconduct, shall be binding on the Borrower and shall not result in any liability of the Issuing
Lender, the Administrative Agent or any L/C Participant to the Borrower. The responsibility of the
Issuing Lender to the Borrower in connection with any draft presented for payment under any Letter
of Credit shall, in addition to any payment obligation expressly provided for in such Letter of
Credit, be limited to determining that the documents (including each draft) delivered under such
Letter of Credit in connection with such presentment are in conformity with such Letter of Credit.
SECTION 3.7. Effect of Application. To the extent that any provision of any
Application related to any Letter of Credit is inconsistent with the provisions of this Article
III, the provisions of this Article III shall apply.
ARTICLE IV
TERM LOAN FACILITY
SECTION 4.1. Term Loan. Subject to the terms and conditions of this Agreement, each
Term Loan Lender severally agrees to make the Term Loan to the Borrower in a single draw on the
Closing Date in a principal amount equal to such Lenders Term Loan Commitment as of the Closing
Date.
SECTION 4.2. Procedure for Advance of Term Loan. The Borrower shall give the
Administrative Agent an irrevocable notice of borrowing (in a form satisfactory to the
37
Administrative Agent) prior to 2:00 p.m. on the Closing Date requesting that the Term Loan
Lenders make the Term Loan as a Base Rate Loan on such date (provided that the Borrower may
request, no later than three (3) Business Days prior to the Closing Date, that the Lenders make the
Term Loan as a LIBOR Rate Loan or multiple LIBOR Rate Loans if the Borrower has delivered to the
Administrative Agent a letter in form and substance reasonably satisfactory to the Administrative
Agent indemnifying the Lenders in the manner set forth in Section 5.9 of this Agreement and
a notice of borrowing (in form satisfactory to the Administrative Agent) requesting such LIBOR Rate
Loan or LIBOR Rate Loans and specifying (a) the amount of each such LIBOR Rate Loan (which shall
be, for each such LIBOR Rate Loan, in an aggregate principal amount of $5,000,000 or a whole
multiple of $500,000 in excess thereof) and (b) the Interest Period or Interest Periods applicable
thereto). Upon receipt of such notice of borrowing from the Borrower, the Administrative Agent
shall promptly notify each Term Loan Lender thereof. Not later than 3:00 p.m. on the Closing Date,
each Term Loan Lender will make available to the Administrative Agent for the account of the
Borrower, at the Administrative Agents Office in immediately available funds, the amount of such
Term Loan to be made by such Term Loan Lender on the Closing Date. The Borrower hereby irrevocably
authorizes the Administrative Agent to disburse the proceeds of the Term Loan in immediately
available funds by wire transfer to such Person or Persons as may be designated by the Borrower in
writing.
SECTION 4.3. Repayment of Term Loan. The Borrower shall repay the aggregate
outstanding principal amount of the Term Loan in consecutive quarterly installments on the last
Business Day of each of March, June, September and December commencing September 30, 2010 as set
forth below, except as the amounts of individual installments may be adjusted pursuant to
Section 4.4 hereof:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PRINCIPAL |
|
|
TERM LOAN |
|
|
|
|
|
INSTALLMENT |
|
|
BALANCE |
|
YEAR |
|
PAYMENT DATE |
|
($) |
|
|
($) |
|
2010 |
|
September 30 |
|
$ |
2,500,000 |
|
|
$ |
197,500,000 |
|
|
|
December 31 |
|
$ |
2,500,000 |
|
|
$ |
195,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
2011 |
|
March 31 |
|
$ |
2,500,000 |
|
|
$ |
192,500,000 |
|
|
|
June 30 |
|
$ |
2,500,000 |
|
|
$ |
190,000,000 |
|
|
|
September 30 |
|
$ |
5,000,000 |
|
|
$ |
185,000,000 |
|
|
|
December 31 |
|
$ |
5,000,000 |
|
|
$ |
180,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
2012 |
|
March 31 |
|
$ |
5,000,000 |
|
|
$ |
175,000,000 |
|
|
|
June 30 |
|
$ |
5,000,000 |
|
|
$ |
170,000,000 |
|
|
|
September 30 |
|
$ |
5,000,000 |
|
|
$ |
165,000,000 |
|
|
|
December 31 |
|
$ |
5,000,000 |
|
|
$ |
160,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
2013 |
|
March 31 |
|
$ |
5,000,000 |
|
|
$ |
155,000,000 |
|
|
|
June 30 |
|
$ |
5,000,000 |
|
|
$ |
150,000,000 |
|
|
|
September 30 |
|
$ |
7,500,000 |
|
|
$ |
142,500,000 |
|
|
|
December 31 |
|
$ |
7,500,000 |
|
|
$ |
135,000,000 |
|
|
|
|
|
|
|
|
|
|
|
|
2014 |
|
March 31 |
|
$ |
7,500,000 |
|
|
$ |
127,500,000 |
|
|
|
June 30 |
|
$ |
7,500,000 |
|
|
$ |
120,000,000 |
|
|
|
September 30 |
|
$ |
30,000,000 |
|
|
$ |
90,000,000 |
|
|
|
December 31 |
|
$ |
30,000,000 |
|
|
$ |
60,000,000 |
|
38
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
PRINCIPAL |
|
|
TERM LOAN |
|
|
|
|
|
INSTALLMENT |
|
|
BALANCE |
|
YEAR |
|
PAYMENT DATE |
|
($) |
|
|
($) |
|
2015 |
|
March 31 |
|
$ |
30,000,000 |
|
|
$ |
30,000,000 |
|
|
|
Term Loan Maturity Date |
|
$ |
30,000,000 |
|
|
$ |
0 |
|
If not sooner paid, the Term Loan shall be paid in full, together with accrued interest thereon, on
the Term Loan Maturity Date.
SECTION 4.4. Prepayment of Term Loans.
(a) Optional Prepayment of Term Loan. The Borrower shall have the right at any time
and from time to time, upon delivery to the Administrative Agent of a Notice of Prepayment at least
three (3) Business Days prior to any repayment, to prepay the Term Loan in whole or in part without
premium or penalty except as provided in Section 5.9. If any such notice is given, the
amount specified in such notice shall be due and payable on the date set forth in such notice.
Each optional prepayment of the Term Loan hereunder shall be in an aggregate principal amount of at
least $5,000,000 or any whole multiple of $1,000,000 in excess thereof and shall be applied to the
outstanding principal installments of the Term Loan as set forth in Section 4.3 in either direct
order of maturity, inverse order of maturity or on a pro rata basis, in any case as
directed by the Borrower. Each prepayment shall be accompanied by any amount required to be paid
pursuant to Section 5.9 hereof.
(b) Mandatory Prepayments.
(i) Debt Proceeds. The Borrower shall make mandatory principal
prepayments of the Loans in the manner set forth in Section 4.4(b)(v) below
in amounts equal to one hundred percent (100%) of:
(A) the aggregate Net Cash Proceeds from any incurrence of Permitted
Senior Notes permitted pursuant to Section 11.1(o); and
(B) the aggregate Net Cash Proceeds in excess of $1,000,000 in the
aggregate during any Fiscal Year from any incurrence of Debt by the Borrower
or any of its Restricted Subsidiaries not otherwise permitted pursuant to
Section 11.1.
Any such prepayment shall be made within three (3) Business Days after the date of
receipt of Net Cash Proceeds of any such transaction.
(ii) Subordinated Debt Proceeds. The Borrower shall make mandatory
principal prepayments of the Loans and/or cash collateralize the L/C Obligations in
the manner set forth in Section 4.4(b)(v) below in amounts equal to one
hundred percent (100%) of the aggregate Net Cash Proceeds of any incurrence of
Subordinated Debt by the Borrower or any of its Restricted Subsidiaries permitted
pursuant to Section 11.1(f). Any such prepayment shall be made within three
(3) Business Days after the date of receipt of Net Cash Proceeds of any such
transaction.
39
(iii) Asset Sale Proceeds. The Borrower shall make mandatory principal
prepayments of the Loans and/or cash collateralize the L/C Obligations in the manner
set forth in Section 4.4(b)(v) below in amounts equal to one hundred percent
(100%) of the aggregate Net Cash Proceeds from the sale or other disposition or
series of related sales or other dispositions of assets by the Borrower or any of
its Restricted Subsidiaries other than sales or other dispositions of assets
permitted pursuant to Section 11.5(a) through (i). Such prepayments
shall be made within three (3) Business Days after the date of receipt of the Net
Cash Proceeds of any such sale or other disposition or series of related sales or
other dispositions of assets by the Borrower or any of its Restricted Subsidiaries;
provided that, so long as no Default or Event of Default has occurred and is
continuing, no such mandatory principal prepayments shall be required (A) until the
Net Cash Proceeds of sales and dispositions exceed $10,000,000 in the aggregate
during any Fiscal Year (at which point all such Net Cash Proceeds shall be subject
to prepayment in accordance with this Section 4.4(b)(iii) with the date upon
which such threshold is exceeded being deemed to be the date of receipt of such Net
Cash Proceeds); or (B) in connection with any such Net Cash Proceeds which are
committed to be reinvested in assets used in the business of the Borrower and its
Restricted Subsidiaries within 12 months after receipt of such Net Cash Proceeds and
are thereafter actually reinvested in operating assets used in the business of the
Borrower and its Restricted Subsidiaries within 18 months after receipt of such Net
Cash Proceeds by the Borrower or such Restricted Subsidiary; provided, that
any portion of the Net Cash Proceeds not committed to be reinvested within such 12
month period or actually reinvested within such 18 month period shall be prepaid in
accordance with this Section. Upon and during the continuance of an Event of
Default and upon notice from the Administrative Agent, all such Net Cash Proceeds
received by the Borrower and its Restricted Subsidiaries shall be applied to make
prepayments of the Loans and/or cash collateralize the L/C Obligations, such
prepayments and/or cash collateral to be made within three (3) Business Days after
the Borrowers or such Restricted Subsidiarys receipt of all such Net Cash
Proceeds; provided that nothing in this sentence shall require the Borrower
to repay a greater amount of Net Cash Proceeds than it would be required to repay
pursuant to the first sentence of this Section 4.4(b)(iii).
(iv) Insurance and Condemnation Proceeds. No later than one hundred
eighty (180) days following the date of receipt by the Borrower or any of its
Restricted Subsidiaries of any Net Cash Proceeds under any of the property hazard
insurance policies maintained by the Borrower or any of its Subsidiaries or from any
condemnation proceeding (the Insurance and Condemnation Proceeds) which
have not been previously reinvested (whether before or after the receipt of such Net
Cash Proceeds) as of such date in similar replacement assets, the Borrower shall
make mandatory principal prepayments of the Loans and/or cash collateralize the L/C
Obligations in the manner set forth in Section 4.4(b)(v) below in amounts
equal to one hundred percent (100%) of the aggregate amount of such Insurance and
Condemnation Proceeds in excess of $1,000,000 received by the Borrower or any of its
Restricted Subsidiaries with respect to each
40
occurrence for which Insurance and Condemnation Proceeds are received.
Notwithstanding any of the foregoing to the contrary, upon and during the
continuance of an Event of Default and upon notice from the Administrative Agent,
all Insurance and Condemnation Proceeds received by the Borrower or its Restricted
Subsidiaries shall be applied to make prepayments of the Loans and/or cash
collateralize the L/C Obligations, such prepayments and/or cash collateral to be
made within three (3) Business Days after the Borrowers or such Restricted
Subsidiarys receipt of all such Insurance and Condemnation Proceeds.
(v) Notice; Manner of Payment. Upon the occurrence of any event
triggering the prepayment requirement under Sections 4.4(b)(i) through and
including 4.4(b)(iv), the Borrower shall promptly deliver a Notice of
Prepayment to the Administrative Agent and upon receipt of such notice, the
Administrative Agent shall promptly so notify the Lenders. Each prepayment under
Section 4.4(b)(i) shall be applied as follows: first, to reduce the
remaining scheduled quarterly principal repayment installments of the Term Loan on a
pro rata basis and second, to the extent of any excess, to
temporarily prepay the Revolving Credit Loans pursuant to Section 2.4(c);
provided, that any excess remaining thereafter shall be returned to the
Borrower. Each prepayment under Section 4.4(b)(ii) through (iv)
shall be applied as follows: first, to reduce the remaining scheduled
quarterly principal repayment installments of the Term Loan on a pro
rata basis and second, to the extent of any excess, to permanently
reduce the Revolving Credit Commitment pursuant to Section 2.5(b);
provided, that any excess remaining thereafter shall be returned to the
Borrower.
Amounts prepaid under the Term Loan pursuant to this Section may not be reborrowed. Each
prepayment shall be accompanied by any amount required to be paid pursuant to Section 5.9
hereof.
No prepayment or repayment pursuant to Section 4.4 shall affect any of the Borrowers
obligations under any Hedging Agreement.
ARTICLE V
GENERAL LOAN PROVISIONS
SECTION 5.1. Interest.
(a) Interest Rate Options. Subject to the provisions of this Section 5.1 at
the election of the Borrower, (i) Revolving Credit Loans and the Term Loan shall bear interest at
(A) the Base Rate plus the Applicable Margin or (B) the LIBOR Rate plus the
Applicable Margin (provided that the LIBOR Rate shall not be available until three (3)
Business Days after the Closing Date unless the Borrower has delivered to the Administrative Agent
a letter in form and substance satisfactory to the Administrative Agent indemnifying the Lenders in
the manner set forth in Section 5.9 of this Agreement) and (ii) any Swingline Loans shall
bear interest at the Base Rate plus the Applicable Margin. The Borrower shall select the
rate of interest and Interest Period, if any, applicable to any Loan at the time a Notice of
Borrowing is given pursuant to Section 2.3 or Section 4.2, as applicable,, or at
the time a Notice of Conversion/Continuation is
41
given pursuant to Section 5.2. Any Loan or any portion thereof as to which the
Borrower has not duly specified an interest rate as provided herein shall be deemed a Base Rate
Loan.
(b) Interest Periods. In connection with each LIBOR Rate Loan, the Borrower, by giving
notice at the times described in Sections 2.3 or 5.2, as applicable, shall elect an
interest period (each, an Interest Period) to be applicable to such Loan, which Interest
Period shall be a period of one (1), two (2), three (3) or six (6) months with respect to each
LIBOR Rate Loan; provided that:
(i) the Interest Period shall commence on the date of advance of or conversion
to any LIBOR Rate Loan and, in the case of immediately successive Interest Periods,
each successive Interest Period shall commence on the date on which the immediately
preceding Interest Period expires;
(ii) if any 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 with respect to a LIBOR Rate Loan
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 immediately preceding Business Day;
(iii) any Interest Period with respect to a LIBOR Rate Loan 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
end on the last Business Day of the relevant calendar month at the end of such
Interest Period;
(iv) no Interest Period shall extend beyond the Revolving Credit Maturity Date
or the Term Loan Maturity Date, as applicable; and
(v) there shall be no more than eight (8) Interest Periods in effect at any
time.
(c) Default Rate. Subject to Section 12.3, (i) immediately upon the occurrence
and during the continuance of an Event of Default under Section 12.1(a), (b),
(h) or (i), or (ii) at the election of the Required Lenders (or the Administrative
Agent at the direction of the Required Lenders), upon the occurrence and during the continuance of
any other Event of Default, (A) the Borrower shall no longer have the option to request LIBOR Rate
Loans, Swingline Loans or Letters of Credit, (B) all outstanding LIBOR Rate Loans shall bear
interest at a rate per annum of two percent (2%) in excess of the rate (including the Applicable
Margin) then applicable to LIBOR Rate Loans until the end of the applicable Interest Period and
thereafter at a rate equal to two percent (2%) in excess of the rate (including the Applicable
Margin) then applicable to Base Rate Loans, and (C) all outstanding Base Rate Loans and other
Obligations arising hereunder or under any other Loan Document shall bear interest at a rate per
annum equal to two percent (2%) in excess of the rate (including the Applicable Margin) then
applicable to Base Rate Loans or such other Obligations arising hereunder or under any other Loan
Document. Interest shall continue to accrue on the Obligations after the filing by or
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against the Borrower of any petition seeking any relief in bankruptcy or under any act or law
pertaining to insolvency or debtor relief, whether state, federal or foreign.
(d) Interest Payment and Computation. Interest on each Base Rate Loan shall be due and
payable in arrears on the last Business Day of each calendar quarter commencing September 30, 2010;
and interest on each LIBOR Rate Loan shall be payable on the last day of each Interest Period
applicable thereto, and if such Interest Period extends over three (3) months, at the end of each
three (3) month interval during such Interest Period. All computations of interest for Base Rate
Loans when the Base Rate is determined by the Prime Rate or the Federal Funds Rate shall be made on
the basis of a year of 365 or 366 days, as the case may be, and actual days elapsed. All other
computations of fees and interest provided hereunder shall be made on the basis of a 360-day year
and actual days elapsed (which results in more fees or interest, as applicable, being paid than if
computed on the basis of a 365/366-day year).
(e) Maximum Rate. In no contingency or event whatsoever shall the aggregate of all
amounts deemed interest hereunder or under any of the Notes and charged or collected pursuant to
the terms of this Agreement or pursuant to any of the Notes exceed the highest rate permissible
under any Applicable Law which a court of competent jurisdiction shall, in a final determination,
deem applicable hereto. In the event that such a court determines that the Lenders have charged or
received interest hereunder in excess of the highest applicable rate, the rate in effect hereunder
shall automatically be reduced to the maximum rate permitted by Applicable Law and the Lenders
shall at the Administrative Agents option (i) promptly refund to the Borrower any interest
received by the Lenders in excess of the maximum lawful rate or (ii) apply such excess to the
principal balance of the Obligations on a pro rata basis. It is the intent hereof
that the Borrower not pay or contract to pay, and that neither the Administrative Agent nor any
Lender receive or contract to receive, directly or indirectly in any manner whatsoever, interest in
excess of that which may be paid by the Borrower under Applicable Law.
SECTION 5.2. Notice and Manner of Conversion or Continuation of Loans. Provided that
no Default or Event of Default has occurred and is then continuing, the Borrower shall have the
option to (a) convert at any time following the third Business Day after the Closing Date all or
any portion of any outstanding Base Rate Loans (other than Swingline Loans) in a principal amount
equal to $5,000,000 or any whole multiple of $1,000,000 in excess thereof into one or more LIBOR
Rate Loans and (b) upon the expiration of any Interest Period, (i) convert all or any part of its
outstanding LIBOR Rate Loans in a principal amount equal to $1,000,000 or a whole multiple of
$500,000 in excess thereof into Base Rate Loans (other than Swingline Loans) or (ii) continue such
LIBOR Rate Loans as LIBOR Rate Loans. Whenever the Borrower desires to convert or continue Loans as
provided above, the Borrower shall give the Administrative Agent irrevocable prior written notice
in the form attached as Exhibit E (a Notice of Conversion/Continuation) not later
than 2:00 p.m. three (3) Business Days before the day on which a proposed conversion or
continuation of such Loan is to be effective specifying (A) the Loans to be converted or continued,
and, in the case of any LIBOR Rate Loan to be converted or continued, the last day of the Interest
Period therefor, (B) the effective date of such conversion or continuation (which shall be a
Business Day), (C) the principal amount of such Loans to be converted or continued, and (D) the
Interest Period to be applicable to such converted or
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continued LIBOR Rate Loan. The Administrative Agent shall promptly notify the Lenders of such
Notice of Conversion/Continuation.
SECTION 5.3. Fees.
(a) Commitment Fee. Commencing on the Closing Date, subject to Section
5.14(f), the Borrower shall pay to the Administrative Agent, for the account of the Revolving
Credit Lenders, a non-refundable commitment fee at a rate per annum equal to the Applicable Margin
on the average daily unused portion of the Revolving Credit Commitment; provided that the
amount of outstanding Swingline Loans shall not be considered usage of the Revolving Credit
Commitment for the purpose of calculating such commitment fee. The commitment fee shall be payable
in arrears on the last Business Day of each calendar quarter during the term of this Agreement
commencing September 30, 2010, and ending on the Revolving Credit Maturity Date. Such commitment
fee shall be distributed by the Administrative Agent to the Revolving Credit Lenders (subject to
Section 5.14(f)) pro rata in accordance with such Lenders respective
Revolving Credit Commitment Percentages.
(b) Other Fees. The Borrower shall pay to the Arrangers and the Administrative Agent,
for their own respective accounts, fees in the amounts and at the times specified in the Joint Fee
Letter and the Administrative Agents Fee Letter. The Borrower shall pay to the Lenders such fees
as shall have been separately agreed upon in writing in the amounts and at the times so specified.
SECTION 5.4. Manner of Payment. Each payment by the Borrower on account of the
principal of or interest on the Loans or of any fee, commission or other amounts (including the
Reimbursement Obligation) payable to the Lenders under this Agreement shall be made not later than
1:00 p.m. on the date specified for payment under this Agreement to the Administrative Agent at the
Administrative Agents Office for the account of the Lenders (other than as set forth below)
pro rata in accordance with their respective Revolving Credit Commitment
Percentages or Term Loan Percentages, as applicable, (except as specified below), in Dollars, in
immediately available funds and shall be made without any set-off, counterclaim or deduction
whatsoever. Any payment received after such time but before 3:00 p.m. on such day shall be deemed a
payment on such date for the purposes of Section 12.1, but for all other purposes shall be
deemed to have been made on the next succeeding Business Day. Any payment received after 3:00 p.m.
shall be deemed to have been made on the next succeeding Business Day for all purposes. Upon
receipt by the Administrative Agent of each such payment, the Administrative Agent shall distribute
to each Lender at its address for notices set forth herein its pro rata share of
such payment in accordance with the amounts then due and payable to such Lenders, (except as
specified below) and shall wire advice of the amount of such credit to each Lender. Each payment to
the Administrative Agent of the L/C Participants commissions shall be made in like manner, but for
the account of the L/C Participants. Each payment to the Administrative Agent of the Issuing
Lenders fees and expenses shall be made in like manner, but for the account of the Issuing Lender.
Each payment to the Administrative Agent of Administrative Agents fees or expenses shall be made
for the account of the Administrative Agent and any amount payable to any Lender under Sections
5.8, 5.9, 5.11 or 14.2 shall be paid to the Administrative Agent for
the account of the applicable Lender. Subject to Section 5.1(b)(ii), if any payment under
this Agreement shall be specified to be made upon a day which is not a Business Day, it shall be
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made on the next succeeding day which is a Business Day and such extension of time shall in
such case be included in computing any interest if payable along with such payment.
SECTION 5.5. Evidence of Debt.
(a) Extensions of Credit. The Extensions of Credit made by each Lender shall be
evidenced by one or more accounts or records maintained by such Lender and by the Administrative
Agent in the ordinary course of business. The accounts or records maintained by the Administrative
Agent and each Lender shall be conclusive absent manifest error of the amount of the Extensions of
Credit made by the Lenders to the Borrower and the interest and payments thereon. Any failure to so
record or any error in doing so shall not, however, limit or otherwise affect the obligation of the
Borrower hereunder to pay any amount owing with respect to the Obligations. In the event of any
conflict between the accounts and records maintained by any Lender and the accounts and records of
the Administrative Agent in respect of such matters, the accounts and records of the Administrative
Agent shall control in the absence of manifest error. Upon the request of any Lender made through
the Administrative Agent, the Borrower shall execute and deliver to such Lender (through the
Administrative Agent) a Revolving Credit Note, Term Note and/or Swingline Note, as applicable,
which shall evidence such Lenders Revolving Credit Loans, Term Loan and/or Swingline Loans, as
applicable, in addition to such accounts or records. Each Lender may attach schedules to its Notes
and endorse thereon the date, amount and maturity of its Loans and payments with respect thereto.
(b) Participations. In addition to the accounts and records referred to in subsection
(a), each Lender and the Administrative Agent shall maintain in accordance with its usual practice
accounts or records evidencing the purchases and sales by such Lender of participations in Letters
of Credit and Swingline Loans. In the event of any conflict between the accounts and records
maintained by the Administrative Agent and the accounts and records of any Lender in respect of
such matters, the accounts and records of the Administrative Agent shall control in the absence of
manifest error.
SECTION 5.6. Adjustments. Other than as contemplated by Section 5.14, if any
Lender shall, by exercising any right of setoff or counterclaim or otherwise, obtain payment in
respect of any principal of or interest on any of its Loans or other obligations hereunder
resulting in such Lenders receiving payment of a proportion of the aggregate amount of its Loans
and accrued interest thereon or other such obligations (other than pursuant to Sections
5.9, 5.10, 5.11 or 14.2 hereof) greater than its pro
rata share thereof as provided herein, then the Lender receiving such greater proportion
shall (a) notify the Administrative Agent of such fact, and (b) purchase (for cash at face value)
participations in the Loans and such other obligations of the other Lenders, or make such other
adjustments as shall be equitable, so that the benefit of all such payments shall be shared by the
Lenders ratably in accordance with the aggregate amount of principal of and accrued interest on
their respective Loans and other amounts owing them; provided that:
(i) if any such participations are purchased and all or any portion of the payment
giving rise thereto is recovered, such participations shall be rescinded and the purchase
price restored to the extent of such recovery, without interest; and
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(ii) the provisions of this paragraph shall not be construed to apply to (A) any
payment made by the Borrower pursuant to and in accordance with the express terms of this
Agreement, (B) the application of cash collateral provided for in Section 5.14 or
(C) any payment obtained by a Lender as consideration for the assignment of or sale of a
participation in any of its Loans or participations in Swingline Loans and Letters of Credit
to any assignee or participant, other than to the Borrower or any Subsidiary thereof (as to
which the provisions of this paragraph shall apply).
Each Credit Party consents to the foregoing and agrees, to the extent it may effectively do so
under Applicable Law, that any Lender acquiring a participation pursuant to the foregoing
arrangements may exercise against each Credit Party rights of setoff and counterclaim with respect
to such participation as fully as if such Lender were a direct creditor of each Credit Party in the
amount of such participation.
SECTION 5.7. Obligations of Lenders.
(a) Funding by Lenders; Presumption by Administrative Agent. Unless the Administrative
Agent shall have received notice from a Lender prior to the proposed date of any borrowing that
such Lender will not make available to the Administrative Agent such Lenders share of such
borrowing, the Administrative Agent may assume that such Lender has made such share available on
such date in accordance with Sections 2.3(b) and 4.2 and may, in reliance upon such
assumption, make available to the Borrower a corresponding amount. In such event, if a Lender has
not in fact made its share of the applicable borrowing available to the Administrative Agent, then
the applicable Lender and the Borrower severally agree to pay to the Administrative Agent forthwith
on demand such corresponding amount with interest thereon, for each day from and including the date
such amount is made available to the Borrower to but excluding the date of payment to the
Administrative Agent, at (i) in the case of a payment to be made by such Lender, the greater of the
daily average Federal Funds Rate and a rate determined by the Administrative Agent in accordance
with banking industry rules on interbank compensation and (ii) in the case of a payment to be made
by the Borrower, the interest rate applicable to Base Rate Loans. If the Borrower and such Lender
shall pay such interest to the Administrative Agent for the same or an overlapping period, the
Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the
Borrower for such period. If such Lender pays its share of the applicable borrowing to the
Administrative Agent, then the amount so paid shall constitute such Lenders Loan included in such
borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may
have against a Lender that shall have failed to make such payment to the Administrative Agent.
(b) Nature of Obligations of Lenders Regarding Extensions of Credit. The obligations
of the Lenders under this Agreement to make the Loans and issue or participate in Letters of Credit
and Swingline Loans are several and are not joint or joint and several. The failure of any Lender
to make available its Commitment Percentage of any Loan requested by the Borrower shall not relieve
it or any other Lender of its obligation, if any, hereunder to make its Commitment Percentage of
such Loan available on the borrowing date, but no Lender shall be responsible for the failure of
any other Lender to make its Commitment Percentage of such Loan available on the borrowing date.
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SECTION 5.8. Changed Circumstances.
(a) Circumstances Affecting LIBOR Rate Availability. In connection with any request
for a LIBOR Rate Loan or a Base Rate Loan as to which the interest rate is determined with
reference to LIBOR or a conversion to or continuation thereof, if for any reason (i) the
Administrative Agent shall determine (which determination shall be conclusive and binding absent
manifest error) that Dollar deposits are not being offered to banks in the London interbank
Eurodollar market for the applicable amount and Interest Period of such Loan, (ii) the
Administrative Agent shall determine (which determination shall be conclusive and binding absent
manifest error) that reasonable and adequate means do not exist for the ascertaining the LIBOR Rate
for such Interest Period with respect to a proposed LIBOR Rate Loan or any Base Rate Loan as to
which the interest rate is determined with reference to LIBOR or (iii) the Required Lenders shall
determine (which determination shall be conclusive and binding absent manifest error) that the
LIBOR Rate does not adequately and fairly reflect the cost to such Lenders of making or maintaining
such Loans during such Interest Period, then the Administrative Agent shall promptly give notice
thereof to the Borrower. Thereafter, until the Administrative Agent notifies the Borrower that
such circumstances no longer exist, the obligation of the Lenders to make LIBOR Rate Loans or Base
Rate Loan as to which the interest rate is determined with reference to LIBOR and the right of the
Borrower to convert any Loan to or continue any Loan as a LIBOR Rate Loan or a Base Rate Loan as to
which the interest rate is determined with reference to LIBOR shall be suspended, and (x) in the
case of LIBOR Rate Loans, the Borrower shall either (A) repay in full (or cause to be repaid in
full) the then outstanding principal amount of each such LIBOR Rate Loan together with accrued
interest thereon (subject to Section 5.1(d)), on the last day of the then current Interest
Period applicable to such LIBOR Rate Loan or (B) convert the then outstanding principal amount of
each such LIBOR Rate Loan to a Base Rate Loan as to which the interest rate is not determined by
reference to LIBOR as of the last day of such Interest Period or (y) in the case of Base Rate Loans
as to which the interest rate is determined by reference to LIBOR, the Borrower shall convert the
then outstanding principal amount of each such Loan to a Base Rate Loan as to which the interest
rate is not determined by reference to LIBOR as of the last day of such Interest Period.
(b) Laws Affecting LIBOR Rate Availability. If, after the date hereof, the
introduction of, or any change in, any Applicable Law or any change 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 of the Lenders (or any of
their respective Lending Offices) with any request or directive (whether or not having the force of
law) of any such Governmental Authority, central bank or comparable agency, shall make it unlawful
or impossible for any of the Lenders (or any of their respective Lending Offices) to honor its
obligations hereunder to make or maintain any LIBOR Rate Loan or any Base Rate Loan as to which the
interest rate is determined by reference to LIBOR, such Lender shall promptly give notice thereof
to the Administrative Agent and the Administrative Agent shall promptly give notice to the Borrower
and the other Lenders. Thereafter, until the Administrative Agent notifies the Borrower that such
circumstances no longer exist, (i) the obligations of the Lenders to make LIBOR Rate Loans or Base
Rate Loans as to which the interest rate is determined by reference to LIBOR, and the right of the
Borrower to convert any Loan or continue any Loan as a LIBOR Rate Loan or a Base Rate Loan as to
which the interest
47
rate is determined by reference to LIBOR shall be suspended and thereafter the Borrower may
select only Base Rate Loans as to which the interest rate is not determined by reference to LIBOR
hereunder, (ii) all Base Rate Loans shall cease to be determined by reference to LIBOR and (iii) if
any of the Lenders may not lawfully continue to maintain a LIBOR Rate Loan to the end of the then
current Interest Period applicable thereto, the applicable LIBOR Rate Loan shall immediately be
converted to a Base Rate Loan as to which the interest rate is not determined by reference to LIBOR
for the remainder of such Interest Period.
SECTION 5.9. Indemnity. The Borrower hereby indemnifies each of the Lenders against
any loss or expense which may arise or be attributable to each Lenders obtaining, liquidating or
employing deposits or other funds acquired to effect, fund or maintain any Loan (a) as a
consequence of any failure by the Borrower to make any payment when due of any amount due hereunder
in connection with a LIBOR Rate Loan, (b) due to any failure of the Borrower to borrow, continue or
convert on a date specified therefor in a Notice of Borrowing or Notice of Conversion/Continuation
or (c) due to any payment, prepayment or conversion of any LIBOR Rate Loan on a date other than the
last day of the Interest Period therefor. The amount of such loss or expense shall be determined,
in the applicable Lenders sole discretion, based upon the assumption that such Lender funded its
Revolving Credit Commitment Percentage or Term Loan Percentage, as applicable, of the LIBOR Rate
Loans in the London interbank market and using any reasonable attribution or averaging methods
which such Lender deems appropriate and practical. A certificate of such Lender setting forth the
basis for determining such amount or amounts necessary to compensate such Lender shall be forwarded
to the Borrower through the Administrative Agent and shall be conclusively presumed to be correct
save for manifest error.
SECTION 5.10. Increased Costs.
(a) Increased Costs Generally. If any Change in Law shall:
(i) impose, modify or deem applicable any reserve, special deposit, compulsory
loan, insurance charge or similar requirement against assets of, deposits with or
for the account of, or advances, loans or other credit extended or participated in
by, any Lender (except any reserve requirement reflected in the LIBOR Rate) or the
Issuing Lender;
(ii) subject any Lender or the Issuing Lender to any tax of any kind whatsoever
with respect to this Agreement, any Letter of Credit, any participation in a Letter
of Credit or any LIBOR Rate Loan made by it, or change the basis of taxation of
payments to such Lender or the Issuing Lender in respect thereof (except for
Indemnified Taxes or Other Taxes covered by Section 5.11 and the imposition
of, or any change in the rate of any Excluded Tax payable by such Lender or the
Issuing Lender); or
(iii) impose on any Lender or the Issuing Lender or the London interbank market
any other condition, cost or expense affecting this Agreement or LIBOR Rate Loans
made by such Lender or any Letter of Credit or participation therein;
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and the result of any of the foregoing shall be to increase the cost to such Lender of making,
converting into or maintaining any LIBOR Rate Loan (or of maintaining its obligation to make any
such Loan), or to increase the cost to such Lender or the Issuing Lender of participating in,
issuing or maintaining any Letter of Credit (or of maintaining its obligation to participate in or
to issue any Letter of Credit), or to reduce the amount of any sum received or receivable by such
Lender or the Issuing Lender hereunder (whether of principal, interest or any other amount) then,
upon written request of such Lender or the Issuing Lender, the Borrower shall promptly pay to any
such Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender, as the case may be, for such additional costs
incurred or reduction suffered.
(b) Capital Requirements. If any Lender or the Issuing Lender determines that any
Change in Law affecting such Lender or the Issuing Lender or any lending office of such Lender or
such Lenders or the Issuing Lenders holding company, if any, regarding capital requirements has
or would have the effect of reducing the rate of return on such Lenders or the Issuing Lenders
capital or on the capital of such Lenders or the Issuing Lenders holding company, if any, as a
consequence of this Agreement, the Revolving Credit Commitment of such Lender or the Loans made by,
or participations in Letters of Credit held by, such Lender, or the Letters of Credit issued by the
Issuing Lender, to a level below that which such Lender or the Issuing Lender or such Lenders or
the Issuing Lenders holding company could have achieved but for such Change in Law (taking into
consideration such Lenders or the Issuing Lenders policies and the policies of such Lenders or
the Issuing Lenders holding company with respect to capital adequacy), then from time to time upon
written request of such Lender or such Issuing Lender the Borrower shall promptly pay to such
Lender or the Issuing Lender, as the case may be, such additional amount or amounts as will
compensate such Lender or the Issuing Lender or such Lenders or the Issuing Lenders holding
company for any such reduction suffered.
(c) Certificates for Reimbursement. A certificate of a Lender or the Issuing Lender
setting forth the amount or amounts necessary to compensate such Lender or the Issuing Lender or
its holding company, as the case may be, as specified in paragraph (a) or (b) of this Section and
delivered to the Borrower shall be conclusive absent manifest error. The Borrower shall pay such
Lender or the Issuing Lender, as the case may be, the amount shown as due on any such certificate
within ten (10) days after receipt thereof.
(d) Delay in Requests. Failure or delay on the part of any Lender or the Issuing
Lender to demand compensation pursuant to this Section shall not constitute a waiver of such
Lenders or the Issuing Lenders right to demand such compensation; provided that the
Borrower shall not be required to compensate a Lender or the Issuing Lender pursuant to this
Section for any increased costs incurred or reductions suffered more than 120 days prior to the
date that such Lender or the Issuing Lender, as the case may be, notifies the Borrower of the
Change in Law giving rise to such increased costs or reductions and of such Lenders or the Issuing
Lenders intention to claim compensation therefor (except that if the Change in Law giving rise to
such increased costs or reductions is retroactive, then the 120-day period referred to above shall
be extended to include the period of retroactive effect thereof).
SECTION 5.11. Taxes.
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(a) Payments Free of Taxes. Any and all payments by or on account of any obligation of
the Borrower hereunder or under any other Loan Document shall be made free and clear of and without
reduction or withholding for any Indemnified Taxes or Other Taxes; provided that if the
Borrower shall be required by Applicable Law to deduct any Indemnified Taxes (including any Other
Taxes) from such payments, then (i) the sum payable shall be increased as necessary so that after
making all required deductions (including deductions applicable to additional sums payable under
this Section) the Administrative Agent, Lender or Issuing Lender, as the case may be, receives an
amount equal to the sum it would have received had no such deductions been made, (ii) the Borrower
shall make such deductions and (iii) the Borrower shall timely pay the full amount deducted to the
relevant Governmental Authority in accordance with Applicable Law.
(b) Payment of Other Taxes by the Borrower. Without limiting the provisions of
paragraph (a) above, the Borrower shall timely pay any Other Taxes to the relevant Governmental
Authority in accordance with Applicable Law.
(c) Indemnification by the Borrower. The Borrower shall, without duplication,
indemnify the Administrative Agent, each Lender and the Issuing Lender, within thirty (30) days
after written demand therefor, for the full amount of any Indemnified Taxes or Other Taxes
(including Indemnified Taxes or Other Taxes imposed or asserted on or attributable to amounts
payable under this Section) paid by the Administrative Agent, such Lender or the Issuing Lender, as
the case may be, and any penalties, interest and reasonable expenses arising therefrom or with
respect thereto, whether or not such Indemnified Taxes or Other Taxes were correctly or legally
imposed or asserted by the relevant Governmental Authority. A certificate as to the amount of such
payment or liability delivered to the Borrower by a Lender or the Issuing Lender (with a copy to
the Administrative Agent), or by the Administrative Agent on its own behalf or on behalf of a
Lender or the Issuing Lender, shall be conclusive absent manifest error.
(d) Evidence of Payments. As soon as practicable after any payment of Indemnified
Taxes or Other Taxes by the Borrower to a Governmental Authority, the Borrower shall deliver to the
Administrative Agent the original or a certified copy of a receipt issued by such Governmental
Authority evidencing such payment, a copy of the return reporting such payment or other evidence of
such payment reasonably satisfactory to the Administrative Agent.
(e) Status of Lenders.
(i) Any Foreign Lender that is entitled to an exemption from or reduction of
withholding tax under the law of the jurisdiction in which the Borrower is resident for tax
purposes, or any treaty to which such jurisdiction is a party, with respect to payments
hereunder or under any other Loan Document shall deliver to the Borrower (with a copy to the
Administrative Agent), at the time or times prescribed by Applicable Law or reasonably
requested by the Borrower or the Administrative Agent, such properly completed and executed
documentation prescribed by Applicable Law as will permit such payments to be made without
withholding or at a reduced rate of withholding. In addition, any Lender, if requested by
the Borrower or the Administrative Agent, shall
50
deliver such other documentation prescribed by Applicable Law or reasonably requested
by the Borrower or the Administrative Agent as will enable the Borrower or the
Administrative Agent to determine whether or not such Lender is subject to backup
withholding or information reporting requirements. Without limiting the generality of the
foregoing, if (A) a Person becomes a Foreign Lender hereunder or (B) there is a Change in
Law and a Foreign Lender becomes subject to such withholding tax at a reduced rate under an
applicable tax treaty, then (1) at such time, (2) on or prior to the date on which any such
form or certification expires or becomes obsolete, (3) after the occurrence of any event
requiring a change in the most recent form or certification previously delivered by it
pursuant to this clause (e)(i), and (4) from time to time if requested by the Borrower or
the Administrative Agent, such Foreign Lender shall deliver to the Borrower and the
Administrative Agent (in such number of copies as shall be requested by the recipient), the
following, as applicable (but only if such Foreign Lender is legally entitled to do so):
(A) properly completed copies of Internal Revenue Service Form W-8BEN (or any
successor form thereto) claiming eligibility for benefits of an income tax treaty to
which the United States is a party,
(B) properly completed copies of Internal Revenue Service Form W-8ECI (or any
successor form thereto),
(C) properly completed copies of Internal Revenue Service Form W-8IMY (together
with all required statements and properly completed copies of Internal Revenue
Service Form W-8 for such Foreign Lenders beneficial holders) or any successor
forms,
(D) in the case of a Foreign Lender claiming the benefits of the exemption for
portfolio interest under section 871(h) or 881(c) of the Code, (x) a certificate to
the effect that such Foreign Lender is not (A) a bank within the meaning of
section 881(c)(3)(A) of the Code, (B) a 10 percent shareholder of the Borrower
within the meaning of section 881(c)(3)(B) of the Code, or (C) a controlled foreign
corporation described in section 881(c)(3)(C) of the Code and (y) duly completed
copies of Internal Revenue Service Form W-8BEN (or any successor form thereto), or
(E) any other form prescribed by Applicable Law as a basis for claiming
exemption from or a reduction in United States Federal withholding tax properly
completed together with such supplementary documentation as may be prescribed by
Applicable Law to permit the Borrower to determine the withholding or deduction
required to be made.
(ii) Each Lender (other than a Foreign Lender) (each, a U.S. Lender) shall (A) on or
prior to the date such Lender becomes a U.S. Lender hereunder, (B) on or prior to the date
on which any such form of certification expires or becomes obsolete, (C) after the
occurrence of any event requiring a change in the most recent form or certification
previously delivered by it pursuant to this clause (e)(ii) and (D) from time to
51
time if requested by the Borrower or the Administrative Agent, provide the
Administrative Agent and the Borrower with two completed originals of Internal Revenue
Service Form W-9 (certifying that such Lender is a U.S. Lender and is entitled to an
exemption from U.S. backup withholding tax) or any successor form (but only if such U.S.
Lender is legally entitled to do so).
(f) Treatment of Certain Refunds. If the Administrative Agent, a Lender or the Issuing
Lender determines, in its sole discretion, that it has received a refund of any Taxes or Other
Taxes as to which it has been indemnified by the Borrower or with respect to which the Borrower has
paid additional amounts pursuant to this Section, it shall pay to the Borrower an amount equal to
such refund (but only to the extent of indemnity payments made, or additional amounts paid, by the
Borrower under this Section with respect to the Taxes or Other Taxes giving rise to such refund),
net of all out-of-pocket expenses of the Administrative Agent, such Lender or the Issuing Lender,
as the case may be, and without interest (other than any interest paid by the relevant Governmental
Authority with respect to such refund); provided that the Borrower, upon the request of the
Administrative Agent, such Lender or the Issuing Lender, agrees to repay the amount paid over to
the Borrower (plus any penalties, interest or other charges imposed by the relevant Governmental
Authority) to the Administrative Agent, such Lender or the Issuing Lender in the event the
Administrative Agent, such Lender or the Issuing Lender is required to repay such refund to such
Governmental Authority. This paragraph shall not be construed to require the Administrative Agent,
any Lender or the Issuing Lender to make available its tax returns (or any other information
relating to its taxes which it deems confidential) to the Borrower or any other Person.
(g) Indemnification of Administrative Agent. Each Lender shall indemnify the
Administrative Agent within 10 days after demand therefor, for the full amount of any Excluded
Taxes attributable to such Lender that are payable or paid by the Administrative Agent, and
reasonable expenses arising therefrom or with respect thereto, whether or not such Excluded Taxes
were correctly or legally imposed or asserted by the relevant Governmental Authority. A
certificate as to the amount of such payment or liability delivered to any Lender by the
Administrative Agent shall be conclusive absent manifest error. Each Lender hereby authorizes the
Administrative Agent to set off and apply any and all amounts at any time owing to such Lender
under any Loan Document against any amount due to the Administrative Agent under this subsection
(g). The agreements in this subsection (g) shall survive the resignation and/or replacement of the
Administrative Agent.
(h) Borrower Indemnity. The Borrower shall also indemnify the Administrative Agent,
within 10 days after demand therefor, for any withholding taxes, including, without limitation, any
Taxes imposed under Sections 1471 through 1474 of the Code, which a Lender for any reason fails to
pay indefeasibly to the Administrative Agent as required by Section 5.11(g);
provided that such Lender shall promptly indemnify the Borrower to the extent of any
payment the Borrower makes to the Administrative Agent pursuant to this sentence.
(i) Survival. Without prejudice to the survival of any other agreement of the Borrower
hereunder, the agreements and obligations of the Borrower contained in this Section shall survive
the payment in full of the Obligations and the termination of the Commitments.
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SECTION 5.12. Replacement of Lenders.
(a) Request for Compensation. If any Lender requests compensation pursuant to
Section 5.10, or if the Borrower is required to pay any additional amount to any Lender or
any Governmental Authority for the account of any Lender pursuant to Section 5.11, then
such Lender shall use reasonable efforts to designate a different lending office for funding or
booking its Loans hereunder or to assign its rights and obligations hereunder to another of its
offices, branches or affiliates, if, in the judgment of such Lender, such designation or assignment
(i) would eliminate or reduce amounts payable pursuant to Section 5.10 or Section
5.11, as the case may be, in the future and (ii) would not subject such Lender to any
unreimbursed cost or expense and would not otherwise be disadvantageous to such Lender. The
Borrower hereby agrees to pay all reasonable costs and expenses incurred by any Lender in
connection with any such designation or assignment.
(b) Lender Replacement. If any Lender requests compensation pursuant to Section
5.10, or if the Borrower is required to pay any additional amount to any Lender or any
Governmental Authority for the account of any Lender pursuant to Section 5.11, or if any
Lender is a Defaulting Lender hereunder, or if any Lender shall refuse to consent to a waiver or
amendment to, or a departure from the provisions of this Agreement or any other Loan Document which
requires the consent of all Lenders or all Lenders directly affected thereby and that has been
consented to by the Required Lenders, then, in each case, the Borrower may, at its sole expense and
effort, upon notice to such Lender and the Administrative Agent, require such Lender to assign and
delegate, without recourse (in accordance with and subject to the restrictions contained in, and
consents required by, Section 14.10), all of its interests, rights and obligations under
this Agreement and the other Loan Documents to an assignee that shall assume such obligations
(which assignee may be another Lender, if a Lender accepts such assignment); provided that:
(i) the Borrower shall have paid to the Administrative Agent the assignment fee
specified in Section 14.10,
(ii) such Lender shall have received payment of an amount equal to the
outstanding principal of its Loans and participations in Letters of Credit, accrued
interest thereon, accrued fees and all other amounts payable to it hereunder and
under the other Loan Documents (including any amounts under Section 5.9)
from the assignee (to the extent of such outstanding principal and accrued interest
and fees) or the Borrower (in the case of all other amounts),
(iii) in the case of any such assignment resulting from a claim for
compensation under Section 5.10 or payments required to be made pursuant to
Section 5.11, such assignment will result in a reduction in such
compensation or payments thereafter, and
(iv) such assignment does not conflict with Applicable Law.
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A Lender shall not be required to make any such assignment or delegation if, prior
thereto, as a result of a waiver by such Lender or otherwise, the circumstances entitling
the Borrower to require such assignment and delegation cease to apply.
(c) Effect of Replacement. To the extent that any Lender (a Replaced Lender)
is required to assign all of its interests, rights and obligations under this Agreement to an
assignee (a Replacement Lender) pursuant to this Section 5.12, upon the execution
of all applicable assignment documents and the satisfaction of all other conditions set forth
herein, the Replacement Lender shall become a Lender hereunder and the Replaced Lender shall cease
to be a Lender hereunder, except with respect to the indemnification provisions under this
Agreement, which provisions shall survive as to such Replaced Lender.
SECTION 5.13. Security. The Obligations of the Borrower and the Guarantors shall be
secured as provided in the Security Documents.
SECTION 5.14. Defaulting Lenders. Notwithstanding anything to the contrary contained
in this Agreement, if any Lender becomes a Defaulting Lender, then, until such time as such Lender
is no longer a Defaulting Lender, to the extent permitted by Applicable Law:
(a) Waivers and Amendments. Such Defaulting Lenders right to approve or disapprove
any amendment, waiver or consent with respect to this Agreement shall be restricted as set forth in
Section 14.11.
(b) Reallocation of Payments. Any payment of principal, interest, fees or other
amounts received by the Administrative Agent for the account of such Defaulting Lender (whether
voluntary or mandatory, at maturity, or otherwise, and including any amounts made available to the
Administrative Agent for the account of such Defaulting Lender pursuant to Section 14.2),
shall be applied at such time or times as may be determined by the Administrative Agent as follows:
first, to the payment of any amounts owing by such Defaulting Lender to the Administrative
Agent hereunder; second, to the payment on a pro rata basis of any amounts owing by such
Defaulting Lender to the Issuing Lender and/or the Swingline Lender hereunder; third, if so
determined by the Administrative Agent or requested by the Issuing Lender and/or the Swingline
Lender, to be held as cash collateral for future funding obligations of such Defaulting Lender of
any participation in any Swingline Loan or Letter of Credit; fourth, as the Borrower may
request (so long as no Default or Event of Default exists), to the funding of any Loan in respect
of which such Defaulting Lender has failed to fund its portion thereof as required by this
Agreement, as determined by the Administrative Agent; fifth, if so determined by the
Administrative Agent and the Borrower, to be held in a non-interest bearing deposit account and
released in order to satisfy obligations of such Defaulting Lender to fund Loans under this
Agreement; sixth, to the payment of any amounts owing to the Administrative Agent, the
Lenders, the Issuing Lender or Swingline Lender as a result of any judgment of a court of competent
jurisdiction obtained by the Administrative Agent, any Lender, the Issuing Lender or Swingline
Lender against such Defaulting Lender as a result of such Defaulting Lenders breach of its
obligations under this Agreement; seventh, so long as no Default or Event of Default
exists, to the payment of any amounts owing to the Borrower as a result of any judgment of a court
of competent jurisdiction obtained by the Borrower against such Defaulting Lender as a result of
such Defaulting Lenders breach of its obligations under
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this Agreement; and eighth, to such Defaulting Lender or as otherwise directed by a
court of competent jurisdiction; provided that if (i) such payment is a payment of the
principal amount of any Revolving Credit Loans or funded participations in Swingline Loans or
Letters of Credit in respect of which such Defaulting Lender has not fully funded its appropriate
share and (ii) such Revolving Credit Loans or funded participations in Swingline Loans or Letters
of Credit were made at a time when the conditions set forth in Section 6.2 were satisfied
or waived, such payment shall be applied solely to pay the Revolving Credit Loans of, and funded
participations in Swingline Loans or Letters of Credit owed to, all non-Defaulting Lenders on a pro
rata basis prior to being applied to the payment of any Revolving Credit Loans of, or funded
participations in Swingline Loans or Letters of Credit owed to, such Defaulting Lender. Any
payments, prepayments or other amounts paid or payable to a Defaulting Lender that are applied (or
held) to pay amounts owed by a Defaulting Lender or to post cash collateral pursuant to this
Section 5.14(b) shall be deemed paid to and redirected by such Defaulting Lender, and each
Lender irrevocably consents hereto.
(c) Reallocation of Applicable Percentages to Reduce Fronting Exposure. During any
period in which there is a Defaulting Lender, for purposes of computing the amount of the
obligation of each non-Defaulting Lender to acquire, refinance or fund participations in Letters of
Credit or Swingline Loans pursuant to Section 2.2(b) and Section 3.4, the
Revolving Credit Commitment Percentage of each non-Defaulting Lender shall be computed without
giving effect to the Revolving Credit Commitment of such Defaulting Lender; provided that
(i) each such reallocation shall be given effect only if, at the date the applicable Lender becomes
a Defaulting Lender, no Default or Event of Default exists and (ii) the aggregate obligation of
each non-Defaulting Lender to acquire, refinance or fund participations in Letters of Credit and
Swingline Loans shall not exceed the positive difference, if any, of (A) the Revolving Credit
Commitment of that non-Defaulting Lender minus (B) the aggregate outstanding principal
amount of the Revolving Loans of that Lender.
(d) Cash Collateral for Letters of Credit. Promptly on demand by the Issuing Lender
or the Administrative Agent from time to time, the Borrower shall deliver to the Administrative
Agent cash collateral in an amount sufficient to cover all Fronting Exposure with respect to the
Issuing Lender (after giving effect to Section 5.14(c)) on terms reasonably satisfactory to
the Administrative Agent and the Issuing Lender (and such cash collateral shall be in Dollars).
Any such cash collateral shall be deposited in a separate account with the Administrative Agent,
subject to the exclusive dominion and control of the Administrative Agent, as collateral (solely
for the benefit of the Issuing Lender) for the payment and performance of each Defaulting Lenders
Revolving Credit Commitment Percentage of outstanding L/C Obligations. Moneys in such account
shall be applied by the Administrative Agent to reimburse the Issuing Lender immediately for each
Defaulting Lenders Revolving Credit Commitment Percentage of any drawing under any Letter of
Credit which has not otherwise been reimbursed by the Borrower (including, without limitation,
through a Revolving Credit Loan) or such Defaulting Lender.
(e) Prepayment of Swingline Loans. Promptly on demand by the Swingline Lender or the
Administrative Agent from time to time, the Borrower shall prepay Swingline Loans in an amount of
all Fronting Exposure with respect to the Swingline Lender (after giving effect to Section
5.14(c)).
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(f) Certain Fees. For any period during which such Lender is a Defaulting Lender,
such Defaulting Lender (i) shall not be entitled to receive any commitment fee pursuant to
Section 5.3 (and the Borrower shall not be required to pay any such fee that otherwise
would have been required to have been paid to such Defaulting Lender) and (ii) shall not be
entitled to receive any letter of credit commissions pursuant to Section 3.3(a) otherwise
payable to the account of a Defaulting Lender with respect to any Letter of Credit as to which such
Defaulting Lender has not provided cash collateral or other credit support arrangements
satisfactory to the Issuing Lender pursuant to Section 5.14(d), but instead, the Borrower
shall pay to the non-Defaulting Lenders the amount of such letter of credit commissions in
accordance with the upward adjustments in their respective Revolving Credit Commitment Percentages
allocable to such Letter of Credit pursuant to Section 5.14(c), with the balance of such
fee, if any, payable to the Issuing Lender for its own account.
(g) Defaulting Lender Cure. If the Borrower, the Administrative Agent, the Swingline
Lender and the Issuing Lender agree in writing in their sole discretion that a Defaulting Lender
should no longer be deemed to be a Defaulting Lender, the Administrative Agent will so notify the
parties hereto, whereupon as of the date specified in such notice and subject to any conditions set
forth therein (which may include arrangements with respect to any cash collateral), that Lender
will, to the extent applicable, purchase that portion of outstanding Revolving Credit Loans of the
other Lenders or take such other actions as the Administrative Agent may determine to be necessary
to cause the Revolving Credit Loans and funded and unfunded participations in Letters of Credit and
Swingline Loans to be held on a pro rata basis by the Lenders in accordance with
their Revolving Credit Commitment Percentages (without giving effect to Section 5.14(c)),
whereupon such Lender will cease to be a Defaulting Lender; provided that no adjustments
will be made retroactively with respect to fees accrued or payments made by or on behalf of the
Borrower while such Lender was a Defaulting Lender; and provided, further, that
except to the extent otherwise expressly agreed by the affected parties, no change hereunder from
Defaulting Lender to Lender will constitute a waiver or release of any claim of any party hereunder
arising from such Lenders having been a Defaulting Lender.
ARTICLE VI
CLOSING; CONDITIONS OF CLOSING AND BORROWING
SECTION 6.1. Conditions to Closing and Initial Extensions of Credit. The obligation of
the Lenders to close this Agreement and to make the initial Loan or issue or participate in the
initial Letter of Credit, if any, is subject to the satisfaction of each of the following
conditions:
(a) Executed Loan Documents. This Agreement, a Revolving Credit Note, in favor of each
Lender requesting a Revolving Credit Note, a Term Note in favor of each Lender requesting a Term
Note and a Swingline Note in favor of the Swingline Lender (if requested thereby), together with
any other applicable Loan Documents, shall have been duly authorized, executed and delivered to the
Administrative Agent by the parties thereto, shall be in full force and effect and no Default or
Event of Default shall exist thereunder, and the Borrower shall have delivered original
counterparts thereof to the Administrative Agent.
(b) Closing Certificates; etc.
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(i) Officers Certificate of the Borrower. The Administrative Agent
shall have received a certificate from a Responsible Officer, in form and substance
satisfactory to the Administrative Agent, to the effect that all representations and
warranties of the Borrower and each Subsidiary thereof contained in this Agreement
and the other Loan Documents are true, correct and complete in all material respects
(except to the extent that such representation and warranty is subject to a
materiality or Material Adverse Effect qualifier, in which case it shall be true and
correct in all respects); that the Borrower and each Subsidiary thereof is not in
violation of any of the covenants contained in this Agreement and the other Loan
Documents; that there is no (A) pending litigation that could reasonably be expected
to have a Material Adverse Effect or a material adverse effect on the consummation
of the transactions contemplated on the Closing Date under this Agreement and the
other Loan Documents or (B) bankruptcy proceeding with respect to the Borrower or
any Restricted Subsidiary; that since September 27, 2009, no Material Adverse
Effect, or circumstance or condition that could reasonably be expected to result in
a Material Adverse Effect, has occurred; that, after giving effect to the
transactions contemplated to occur on the Closing Date under this Agreement, no
Default or Event of Default has occurred and is continuing; and that the Borrower
and each Subsidiary thereof has satisfied each of the conditions set forth in
Sections 6.1 and 6.2.
(ii) Certificate of Secretary of the Credit Parties. The Administrative
Agent shall have received a certificate of the secretary or assistant secretary of
each Credit Party certifying as to the incumbency and genuineness of the signature
of each officer of such Credit Party executing Loan Documents to which it is a party
and certifying that attached thereto is a true, correct and complete copy of (A) the
articles or certificate of incorporation or formation, certificate of partnership or
other organizational document, as applicable, of such Credit Party and all
amendments thereto, certified as of a recent date by the appropriate Governmental
Authority in its jurisdiction of incorporation or organization, (B) the bylaws,
operating agreement, partnership agreement or other governing document, as
applicable, of such Credit Party as in effect on the date of such certifications,
(C) resolutions duly adopted by the board of directors or other applicable governing
authority of such Credit Party authorizing the transactions contemplated hereunder
and the execution, delivery and performance of this Agreement and the other Loan
Documents to which it is a party, and (D) each certificate required to be delivered
pursuant to Section 6.1(b)(iii).
(iii) Certificates of Good Standing. The Administrative Agent shall
have received (A) certificates as of a recent date of the good standing of each
Credit Party under the laws of its jurisdiction of organization and (B) to the
extent available from the applicable jurisdiction, a certificate of the relevant
taxing authorities of the jurisdiction of organization of each Credit Party
certifying that such Credit Party has filed required tax returns and owes no
delinquent taxes.
(iv) Opinions of Counsel. The Administrative Agent shall have received
favorable opinions of counsel to each Credit Party, in form and
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substance satisfactory to the Administrative Agent and the Lenders, and
addressed to the Administrative Agent and the Lenders with respect to each Credit
Party, the Loan Documents and such other matters as the Lenders shall request.
(v) Tax Forms. The Administrative Agent shall have received copies of
the United States Internal Revenue Service forms required by Section
5.11(e)(i).
(c) Collateral.
(i) Filings and Recordings. All filings and recordations that are
necessary to perfect the security interests of the Lenders in the collateral
described in the Security Documents shall have been forwarded for filing in all
appropriate locations and the Administrative Agent shall have received evidence
satisfactory thereto that upon such filings and recordations such security interests
constitute valid and perfected first priority Liens therein, subject to any Liens
permitted under Section 11.2.
(ii) Pledged Collateral. The Administrative Agent shall have received
original stock certificates or other certificates evidencing the Capital Stock
pledged pursuant to the Collateral Agreement (to the extent such Capital Stock is
certificated) together with an undated stock power for each such certificate duly
executed in blank by the registered owner thereof.
(iii) Lien Search. The Administrative Agent shall have received the
results of a Lien search (including a search as to judgments, pending litigation,
bankruptcy and tax matters) made against each Credit Party as deemed necessary by
the Administrative Agent, indicating among other things that its assets are free and
clear of any Lien except for Liens permitted hereunder.
(iv) Hazard and Liability Insurance. The Administrative Agent shall
have received certificates of property hazard, business interruption and liability
insurance (naming the Administrative Agent as additional insured on all certificates
for liability insurance) and evidence of payment of all insurance premiums for the
current policy year of each such policy of insurance.
(d) Consents; Defaults.
(i) Governmental and Third Party Approvals. The Credit Parties shall
have received all governmental, shareholder and third party consents and approvals
required (or any other material consents as determined in the reasonable discretion
of the Administrative Agent) in connection with the transactions contemplated by
this Agreement and the other Loan Documents and the other transactions contemplated
hereby and all applicable waiting periods shall have expired without any action
being taken by any Person that could reasonably be expected to restrain, prevent or
impose any material adverse conditions on any of the Credit Parties or such other
transactions or that could seek or threaten any of the foregoing.
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(ii) No Injunction, Etc. No action, proceeding, investigation,
regulation or legislation shall have been instituted, threatened or proposed before
any Governmental Authority (including the SEC and any state securities regulatory
authorities) to enjoin, restrain, or prohibit, or to obtain substantial damages in
respect of, or which is related to or arises out of this Agreement, the other Loan
Documents or the consummation of the transactions contemplated hereby or thereby, or
which, in the Administrative Agents sole discretion, would make it inadvisable to
consummate the transactions contemplated by this Agreement and such other Loan
Documents.
(iii) No Event of Default. No Default or Event of Default shall have
occurred and be continuing.
(e) Financial Matters.
(i) Financial Condition Certificate. The Borrower shall have delivered
to the Administrative Agent a certificate, in form and substance satisfactory to the
Administrative Agent, and certified as accurate by a Responsible Officer, that (A)
after giving effect to the initial Extensions of Credit hereunder, the Borrower and
the Credit Parties, taken as a whole, are Solvent, (B) attached thereto are
calculations evidencing compliance on a pro forma basis with the
covenants contained in Sections 10.1 and 10.2 hereof after giving
effect to the initial Extensions of Credit hereunder and (C) the financial
projections previously delivered to the Administrative Agent represent the good
faith estimates (utilizing reasonable assumptions) of the financial condition and
operations of the Borrower and its Subsidiaries.
(ii) Payment at Closing; Fee Letters. The Borrower shall have paid to
the Arrangers, the Administrative Agent and the Lenders the fees set forth or
referenced in Section 5.3 due on the Closing Date and any other accrued and
unpaid fees or commissions due hereunder (including, without limitation, legal fees
and expenses) and to any other Person such amount as may be due thereto in
connection with the transactions contemplated hereby, including all taxes, fees and
other charges in connection with the execution, delivery, recording, filing and
registration of any of the Loan Documents.
(f) Miscellaneous.
(i) Notice of Borrowing. The Administrative Agent shall have received a
Notice of Borrowing, as applicable, from the Borrower in accordance with Section
2.3(a) and Section 4.2, and a Notice of Account Designation specifying
the account or accounts to which the proceeds of any Loans made on or after the
Closing Date are to be disbursed.
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(ii) Refinancing of Existing Debt.
(A) All existing Debt of the Borrower and its Subsidiaries (other than
the Existing Credit Agreement and Debt permitted pursuant to Section
11.1) shall be repaid in full and terminated and all collateral security
therefor shall be released, and the Administrative Agent shall have received
pay-off letters in form and substance satisfactory to it evidencing such
repayment, termination and release.
(B) The commitments under the Existing Credit Agreement shall have been
terminated and all loans outstanding under the Existing Credit Agreement
shall have been refinanced with the proceeds of the Loans made on the date
hereof.
(iii) Diligence. The Administrative Agent, shall have completed, to
its satisfaction, all legal, tax, business and other due diligence with respect to
the business, assets, liabilities, operations and condition (financial or otherwise)
of the Borrower and its Subsidiaries in scope and determination reasonably
satisfactory to the Administrative Agent in its sole discretion.
(iv) Patriot Act. Each Credit Party shall have provided to the
Administrative Agent and the Lenders the documentation and other information
requested by the Administrative Agent in order to comply with the requirements of
the Patriot Act.
(v) Other Documents. All opinions, certificates and other instruments
and all proceedings in connection with the transactions contemplated by this
Agreement shall be satisfactory in form and substance to the Administrative Agent.
The Administrative Agent shall have received copies of all other documents,
certificates and instruments reasonably requested thereby, with respect to the
transactions contemplated by this Agreement.
SECTION 6.2. Conditions to All Extensions of Credit. The obligations of the Lenders to
make any Extensions of Credit (including the initial Extension of Credit), convert or continue any
Loan and/or the Issuing Lender to issue or extend any Letter of Credit are subject to the
satisfaction of the following conditions precedent on the relevant borrowing, continuation,
conversion, issuance or extension date:
(a) Continuation of Representations and Warranties. The representations and warranties
contained in Article VII shall be true and correct in all material respects (except to the
extent that such representation and warranty is subject to a materiality or Material Adverse Effect
qualifier, in which case it shall be true and correct in all respects) on and as of such borrowing,
continuation, conversion issuance or extension date with the same effect as if made on and as of
such date except for any representation and warranty that specifically refers to an earlier date,
which representation and warranty shall remain true and correct in all material respects (except to
the extent that such representation and warranty is subject to a materiality or
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Material Adverse Effect qualifier, in which case it shall be true and correct in all respects)
as of such earlier date.
(b) No Existing Default. No Default or Event of Default shall have occurred and be
continuing (i) on the borrowing, continuation or conversion date with respect to such Loan or after
giving effect to the Loans to be made, continued or converted on such date or (ii) on the issuance
or extension date with respect to such Letter of Credit or after giving effect to the issuance or
extension of such Letter of Credit on such date.
(c) Notices. The Administrative Agent shall have received a Notice of Borrowing or
Notice of Conversion/Continuation, as applicable, from the Borrower in accordance with Section
2.3(a), Section 4.2 and Section 5.2.
ARTICLE VII
REPRESENTATIONS AND WARRANTIES OF THE BORROWER
SECTION 7.1. Representations and Warranties. To induce the Administrative Agent and
Lenders to enter into this Agreement and to induce the Lenders to make Extensions of Credit, the
Borrower hereby represents and warrants to the Administrative Agent and Lenders both before and
after giving effect to the transactions contemplated hereunder that:
(a) Organization; Power; Qualification. Each of the Borrower and its Subsidiaries (i)
is duly organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation or formation, (ii) has the power and authority to own its properties and to carry on
its business as now being and hereafter proposed to be conducted and (iii) except to the extent
that the failure to do so could not reasonably be expected to have a Material Adverse Effect, is
duly qualified and authorized to do business in each jurisdiction in which the character of its
properties or the nature of its business requires such qualification and authorization. The
jurisdictions in which the Borrower and its Subsidiaries are organized and qualified to do a
material portion of their business as of the Closing Date are described on Schedule 7.1(a).
(b) Ownership. Each Subsidiary of the Borrower as of the Closing Date is listed on
Schedule 7.1(b). As of the Closing Date, the capitalization of the Borrower and its
Subsidiaries consists of the number of shares, authorized, issued and outstanding, of such classes
and series, with or without par value, described on Schedule 7.1(b). All outstanding shares
of the Borrower and its Subsidiaries have been duly authorized and validly issued and are fully
paid and nonassessable, with no personal liability attaching to the ownership thereof, and not
subject to any preemptive or similar rights. The shareholders of the Subsidiaries of the Borrower
and the number of shares owned by each as of the Closing Date are described on Schedule
7.1(b). As of the Closing Date, there are no outstanding stock purchase warrants,
subscriptions, options, securities, instruments or other rights of any type or nature whatsoever,
which are convertible into, exchangeable for or otherwise provide for or permit the issuance of
Capital Stock of the Borrower, except as set forth in the most recent audited financial statements
thereof, or its Subsidiaries, except as described on Schedule 7.1(b).
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(c) Authorization of Agreement, Loan Documents and Borrowing. Each of the Borrower and
its Restricted Subsidiaries has the right, power and authority and has taken all necessary
corporate and other action to authorize the execution, delivery and performance of this Agreement
and each of the other Loan Documents to which it is a party in accordance with their respective
terms. This Agreement and each of the other Loan Documents have been duly executed and delivered by
the duly authorized officers of the Borrower and each of its Subsidiaries party thereto, and each
such document constitutes the legal, valid and binding obligation of the Borrower or its Subsidiary
party thereto, enforceable in accordance with its terms, except as such enforceability may be
limited by bankruptcy, insolvency, reorganization, moratorium or similar state or federal debtor
relief laws from time to time in effect which affect the enforcement of creditors rights in
general and the availability of equitable remedies.
(d) Compliance of Agreement, Loan Documents and Borrowing with Laws, Etc. The
execution, delivery and performance by the Borrower and its Restricted Subsidiaries of the Loan
Documents to which each such Person is a party, in accordance with their respective terms and the
Extensions of Credit hereunder do not and will not, by the passage of time, the giving of notice or
otherwise, (i) require any Governmental Approval or violate any Applicable Law relating to the
Borrower or any of its Subsidiaries, (ii) conflict with, result in a breach of or constitute a
default under the articles of incorporation, bylaws or other organizational documents of the
Borrower or any of its Subsidiaries or any indenture, material agreement or other material
instrument to which such Person is a party or by which any of its properties may be bound or any
Governmental Approval relating to such Person, (iii) result in or require the creation or
imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such
Person other than Liens arising under the Loan Documents or (iv) require any consent or
authorization of, filing with, or other act in respect of, an arbitrator or Governmental Authority
and no consent of any other Person is required in connection with the execution, delivery,
performance, validity or enforceability of this Agreement except, in each case, (A) as may be
required by law affecting the offering and sale of securities generally, (B) filings under the UCC
and (C) those notices, consents and authorizations which have been obtained prior to the Closing
Date.
(e) Compliance with Law; Governmental Approvals. Each of the Borrower and its
Subsidiaries (i) has all Governmental Approvals required by any Applicable Law for it to conduct
its business, each of which is in full force and effect, is final and not subject to review on
appeal and is not the subject of any pending or, to the best of its knowledge, threatened attack by
direct or collateral proceeding, (ii) is in compliance with each Governmental Approval applicable
to it and in compliance with all other Applicable Laws relating to it or any of its respective
properties and (iii) has timely filed all material reports, documents and other materials required
to be filed by it under all Applicable Laws with any Governmental Authority, and has retained all
material records and documents required to be retained by it under Applicable Law; except, in each
case referred to in clauses (i), (ii) and (iii) above, to the extent that the failure to comply
with the terms thereof could not reasonably be expected to have a Material Adverse Effect.
(f) Tax Returns and Payments. Each of the Borrower and its Subsidiaries has timely
(after taking into account all available extensions) filed all federal, state, local and other tax
returns required by Applicable Law, and has paid all federal, state, local and other Taxes
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therein shown to be due and payable, except those which are being contested in good faith by
appropriate proceedings diligently conducted and for which adequate reserves have been provided in
accordance with GAAP. To the knowledge of the Responsible Officers of the Borrower and its
Subsidiaries, there is (i) no ongoing audit, examination or other investigation by any Governmental
Authority of the tax liability of the Borrower and its Subsidiaries which could reasonably be
expected to have a Material Adverse Effect, and (ii) no proposed tax assessment against the
Borrower or any Subsidiary that would, if made, have a Material Adverse Effect.
(g) Intellectual Property Matters. Each of the Borrower and its Restricted
Subsidiaries owns or possesses rights to use all franchises, licenses, copyrights, copyright
applications, patents, patent rights or licenses, patent applications, trademarks, trademark
rights, service mark, service mark rights, trade names, trade name rights, copyrights and rights
with respect to the foregoing which are required to conduct its business. Except to the extent that
it could not reasonably be expected to have a Material Adverse Effect, no event has occurred which
permits, or after notice or lapse of time or both would permit, the revocation or termination of
any such rights, and neither the Borrower nor any Restricted Subsidiary thereof is liable to any
Person for infringement under Applicable Law with respect to any such rights as a result of its
business operations.
(h) Environmental Matters. Except as to matters which could not, individually or in
the aggregate, reasonably be expected to have a Material Adverse Effect:
(i) the properties owned, leased or operated by the Borrower and its
Subsidiaries now do not contain, and to their knowledge have not previously
contained, any Hazardous Materials in amounts or concentrations which (A) constitute
or constituted a violation of applicable Environmental Laws or (B) could give rise
to liability under applicable Environmental Laws;
(ii) the Borrower, each Subsidiary and such properties and all operations
conducted in connection therewith are in compliance, and have been in compliance,
with all applicable Environmental Laws, and there is no contamination at, under or
about such properties or such operations which could interfere with the continued
operation of such properties or impair the fair saleable value thereof;
(iii) neither the Borrower nor any Subsidiary thereof has received any notice
of violation, alleged violation, non-compliance, liability or potential liability
regarding environmental matters, Hazardous Materials, or compliance with
Environmental Laws, nor does the Borrower or any Subsidiary thereof have knowledge
or reason to believe that any such notice will be received or is being threatened;
(iv) Hazardous Materials have not been transported or disposed of to or from
the properties owned, leased or operated by the Borrower and its Subsidiaries in
violation of, or in a manner or to a location which could give rise to liability
under, Environmental Laws, nor have any Hazardous Materials been
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generated, treated, stored or disposed of at, on or under any of such
properties in violation of, or in a manner that could give rise to liability under,
any applicable Environmental Laws;
(v) no judicial proceedings or governmental or administrative action is
pending, or, to the knowledge of the Borrower, threatened, under any Environmental
Law to which the Borrower or any Subsidiary thereof is or will be named as a
potentially responsible party with respect to such properties or operations
conducted in connection therewith, nor are there any consent decrees or other
decrees, consent orders, administrative orders or other orders, or other
administrative or judicial requirements outstanding under any Environmental Law with
respect to Borrower, any Subsidiary or such properties or such operations; and
(vi) there has been no release, or to the best of the Borrowers knowledge,
threat of release, of Hazardous Materials at or from properties owned, leased or
operated by the Borrower or any Subsidiary, now or in the past, in violation of or
in amounts or in a manner that could give rise to liability under Environmental
Laws.
(i) ERISA.
(i) As of the Closing Date, neither the Borrower nor any ERISA Affiliate
maintains or contributes to, or has any obligation under, any Pension Plans other
than those identified on Schedule 7.1(i);
(ii) The Borrower and each ERISA Affiliate is in compliance with all applicable
provisions of ERISA and the regulations and published interpretations thereunder
with respect to all Employee Benefit Plans except for any required amendments for
which the remedial amendment period as defined in Section 401(b) of the Code has not
yet expired and except where a failure to so comply could not reasonably be expected
to have a Material Adverse Effect. Each Employee Benefit Plan that is intended to be
qualified under Section 401(a) of the Code has been determined by the Internal
Revenue Service to be so qualified, except for such plans that have not yet received
determination letters but for which the remedial amendment period for submitting a
determination letter has not yet expired. No liability has been incurred by the
Borrower or any ERISA Affiliate which remains unsatisfied for any taxes or penalties
with respect to any Employee Benefit Plan or any Multiemployer Plan except for a
liability that could not reasonably be expected to have a Material Adverse Effect;
(iii) As of the Closing Date, no Pension Plan has been terminated, nor has any
accumulated funding deficiency (as defined in Section 412 of the Code) been incurred
(without regard to any waiver granted under Section 412 of the Code), nor has any
funding waiver from the Internal Revenue Service been received or requested with
respect to any Pension Plan, nor has the Borrower or any ERISA Affiliate failed to
timely make any contributions or to pay any
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amounts due and owing as required by Section 412 of the Code, Section 302 of
ERISA or the terms of any Pension Plan, in each case where such event could
reasonably be expected to have a Material Adverse Effect; nor has there been any
event requiring any disclosure under Section 4041(c)(3)(C) or 4063(a) of ERISA with
respect to any Pension Plan;
(iv) Except where the failure of any of the following representations to be
correct could not reasonably be expected to have a Material Adverse Effect, neither
the Borrower nor any ERISA Affiliate has: (A) engaged in a nonexempt prohibited
transaction described in Section 406 of the ERISA or Section 4975 of the Code, (B)
incurred any liability to the PBGC which remains outstanding other than the payment
of premiums and there are no premium payments which are due and unpaid, (C) failed
to make a required contribution or payment to a Multiemployer Plan, or (D) failed to
make a required installment or other required payment under Section 412 of the Code;
(v) No Termination Event has occurred or is reasonably expected to occur; and
(vi) Except where the failure of any of the following representations to be
correct could not reasonably be expected to have a Material Adverse Effect, no
proceeding, claim (other than a benefits claim in the ordinary course of business),
lawsuit and/or investigation is existing or, to the knowledge of the Borrower,
threatened concerning or involving any (A) employee welfare benefit plan (as defined
in Section 3(1) of ERISA) currently maintained or contributed to by the Borrower or
any ERISA Affiliate, (B) Pension Plan or (C) Multiemployer Plan.
(j) Margin Stock.
(i) Neither the Borrower nor any Subsidiary thereof is engaged principally or
as one of its activities in the business of extending credit for the purpose of
purchasing or carrying (as each such term is defined or used, directly or
indirectly, in Regulation U and Regulation X) any Margin Stock. No part of the
proceeds of any of the Loans or Letters of Credit will be used for any purpose which
violates, or which would be inconsistent with, the provisions of Regulation U or
Regulation X; and
(ii) Following the application of the proceeds of each Extension of Credit, not
more than 25% of the value of the assets (either of the Borrower only or of the
Borrower and its Subsidiaries on a consolidated basis) subject to the provisions of
Sections 11.2 or 11.5 or subject to any restriction contained in any
agreement or instrument between the Borrower and any Lender or any Affiliate of any
Lender relating to Debt and within the scope of Section 12.1(f) will be
Margin Stock.
(k) Government Regulation. Neither the Borrower nor any Subsidiary thereof is an
investment company or a company controlled by an investment company (as each
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such term is defined or used in the Investment Company Act of 1940, as amended) and neither
the Borrower nor any Subsidiary thereof is, or after giving effect to any Extension of Credit will
be, subject to regulation under the Interstate Commerce Act, as amended, or any other Applicable
Law which limits its ability to incur or consummate the transactions contemplated hereby.
(l) Material Contracts. Each Material Contract is, and after giving effect to the
consummation of the transactions contemplated by the Loan Documents will be, in full force and
effect in accordance with the terms thereof. To the extent requested by the Administrative Agent,
the Borrower and its Subsidiaries have delivered to the Administrative Agent a true and complete
copy of each written Material Contract. Neither the Borrower nor any Subsidiary (nor, to the
knowledge of the Borrower, any other party thereto) is in breach of or in default under any
Material Contract in any material respect.
(m) Employee Relations. Each of the Borrower and its Subsidiaries has a stable work
force in place and is not, as of the Closing Date, party to any collective bargaining agreement
nor, as of the Closing Date, has any labor union been recognized as the representative of its
employees. The Borrower knows of no pending, threatened or contemplated strikes, work stoppage or
other collective labor disputes involving its employees or those of its Subsidiaries that,
individually or in the aggregate, could reasonably be expected to have a Material Adverse Effect.
(n) Burdensome Provisions. No Subsidiary is party to any agreement or instrument or
otherwise subject to any restriction or encumbrance that restricts or limits its ability to (i)
make dividend payments or other distributions in respect of its Capital Stock to the Borrower or
any Subsidiary, (ii) transfer any of its assets or properties to the Borrower or any other
Subsidiary or (iii) create, incur or assume Liens on any of its properties or assets (whether now
owned or hereafter acquired) at any time securing the Obligations, or that requires the grant of
any security for such obligation if security is given for the Obligations, in each case other than
(A) any such restriction or encumbrance existing under or by reason of the Loan Documents or
Applicable Law; (B) customary restrictions on the transfer of, or Liens upon, the property subject
to a Capital Lease set forth in such Capital Lease provided that such restrictions do not apply to
any property other than the property financed by such Capital Lease and the proceeds thereof; (C)
customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement that
has been entered into for the sale or disposition (not otherwise prohibited by the Loan Documents)
of all or substantially all of the Capital Stock in, or assets of, such Subsidiary of the Borrower;
(D) customary non-assignment provisions of any contract or lease (provided that such
provisions are limited to assets consisting of such contract or lease itself and include no other
assets); (E) customary net worth provisions contained in leases and other agreements entered into
by a Subsidiary of the Borrower in the ordinary course of business; (F) customary restrictions on
the creation or assumption of Liens contained in any Permitted Senior Notes or the documentation
governing any Subordinated Debt; (G) customary provisions in joint venture agreements and other
similar agreements relating solely to the securities, assets and revenues of such joint venture or
other business venture; (H) in the case of clauses (i) or (ii) above, obligations under any
provision of any agreement or other instrument governing Debt that are binding on a Person that
becomes a Subsidiary of the Borrower, so long as (1) such obligations are not entered into in
contemplation of such Person becoming a
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Subsidiary, (2) such Debt is otherwise permitted to be incurred or assumed under this
Agreement and (3) such obligations are not applicable to any Person, or the properties or assets of
any Person, other than the Person that becomes a Subsidiary of the Borrower; (I) restrictions or
encumbrances of the type described in clauses (i) and (ii) above that only affect a Subsidiary that
is a Guarantor; (J) provisions imposed under or in connection with the granting of Liens permitted
under Section 11.2(p) under or in connection with commodity swaps or other agreements or
arrangements related to commodity prices provided that such restrictions do not apply to any
property other than property granted to secure such obligations; (K) restrictions limited solely to
cash or other deposits imposed under contracts entered into in the ordinary course of business; (L)
restrictions and encumbrances in any agreement to which a Permitted Franchisee Financing SPE is a
party and (M) any such restriction or encumbrance pursuant to any agreement in existence on the
Closing Date entered into in the ordinary course of business; provided that (1) the
Borrower represents and warrants that, to the best of its knowledge, no restrictions or
encumbrances of the type described in this clause (M) exist (other than any such restrictions or
encumbrances referenced in clauses (A) through (L) hereof) and (2) this clause (M) shall not
include any restrictions or encumbrances pursuant to any Material Contracts.
(o) Financial Statements. The audited Consolidated balance sheet of the Borrower and
its Subsidiaries as of September 27, 2009 and the related audited statements of income and retained
earnings and cash flows for the Fiscal Year then ended, are complete and correct and fairly present
on a Consolidated basis the assets, liabilities and financial position of the Borrower and its
Subsidiaries as at such dates, and the results of the operations and changes of financial position
for the periods then ended. All such financial statements, including the related schedules and
notes thereto, have been prepared in accordance with GAAP. As of the Closing Date, the Borrower and
its Subsidiaries have no material Debt, obligation or other unusual forward or long-term commitment
which is not fairly reflected in the foregoing financial statements or in the notes thereto other
than Debt incurred in the ordinary course of business subsequent to the date thereof.
(p) No Material Adverse Change. Except as publicly disclosed by the Borrower prior to
the Closing Date, since September 27, 2009, there has been no material adverse change in the
properties, business, operations or condition (financial or otherwise) of the Borrower and its
Subsidiaries, and since September 27, 2009, no event has occurred or condition arisen that could
reasonably be expected to have a Material Adverse Effect.
(q) Solvency. As of the Closing Date and after giving effect to each Extension of
Credit made hereunder, the Borrower and the Credit Parties, taken as a whole, will be Solvent.
(r) Titles to Properties. Each of the Borrower and its Subsidiaries has such title to
the real property owned or leased by it as is necessary or desirable to the conduct of its business
and valid and legal title to all of its personal property and assets, including, but not limited
to, those reflected on the balance sheets of the Borrower and its Subsidiaries delivered pursuant
to Section 8.1, except those which have been disposed of by the Borrower or its
Subsidiaries subsequent to such date which dispositions have been in the ordinary course of
business or as otherwise expressly permitted hereunder.
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(s) Liens. None of the properties and assets of the Borrower or any Subsidiary thereof
is subject to any Lien, except Liens permitted pursuant to Section 11.2. Neither the
Borrower nor any Subsidiary thereof has signed any financing statement or any security agreement
authorizing any secured party thereunder to file any such financing statement with respect to any
Lien remaining effective as of the Closing Date, except to perfect those Liens permitted by
Section 11.2.
(t) Debt and Guaranty Obligations. Schedule 7.1(t) is a complete and correct
listing of all Debt and Guaranty Obligations of the Borrower and its Subsidiaries as of the Closing
Date in excess of $2,500,000. As of the Closing Date, the Borrower and its Subsidiaries have
performed and are in compliance in all material respects with all of the terms of such Debt and
Guaranty Obligations and all instruments and agreements relating thereto and, as of the Closing
Date, no default or event of default, or event or condition which with notice or lapse of time or
both would constitute such a default or event of default on the part of the Borrower or any of its
Subsidiaries exists with respect to any such Debt or Guaranty Obligation.
(u) Litigation. Except for matters existing on the Closing Date and set forth on
Schedule 7.1(u), there are no actions, suits or proceedings pending nor, to the knowledge
of the Borrower, threatened against or in any other way relating adversely to or affecting the
Borrower or any Subsidiary thereof or any of their respective properties in any court or before any
arbitrator of any kind or before or by any Governmental Authority except for any such actions,
suits or proceedings which individually and in the aggregate could not reasonably be expected to
have a Material Adverse Effect.
(v) Absence of Defaults. No event has occurred or is continuing which constitutes a
Default or an Event of Default.
(w) Senior Debt Status. The Obligations of the Borrower and each of its Restricted
Subsidiaries under this Agreement and each of the other Loan Documents rank and shall continue to
rank senior in priority of payment to all Subordinated Debt of each such Person and, to the extent
applicable, is designated as Senior Debt or the equivalent thereof under all instruments and
documents relating to all Subordinated Debt of such Person.
(x) OFAC. None of the Borrower, any Subsidiary of the Borrower or any Affiliate of the
Borrower: (i) is a Sanctioned Person or (ii) is in violation of (A) the Trading With the Enemy Act,
as amended or modified from time to time, (B) any of the foreign assets control regulations of the
United States Treasury Department (31 CFR, Subtitle B, Chapter V, as amended or modified from time
to time) or any enabling legislation or executive order relating thereto or (C) the Patriot Act.
The proceeds of any Loan will not be used and have not been used to fund any operations in, finance
any investments or activities in, or make any payments to, a Sanctioned Person or a Sanctioned
Entity.
(y) Disclosure. No financial statement, material report, material certificate or
other material information furnished in writing by or on behalf of the Borrower or any Subsidiary
thereof to the Administrative Agent or any Lender in connection with the transactions contemplated
hereby and the negotiation of this Agreement or delivered hereunder (as modified or supplemented by
other information so furnished), taken together as a whole and
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in the context of all publicly available information concerning the Borrower and its
Subsidiaries as of the time when made or delivered, contains any untrue statement of a material
fact or omits to state any material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading as of the time when made or delivered;
provided that, the representation set forth herein as to any projected financial information, pro
forma financial information, estimated financial information and other projected or estimated
information is limited to the fact that such information was prepared in good faith based upon
assumptions that the Borrower or such Subsidiary, as applicable, believed to be reasonable as of
the date such information was prepared (it being understood that forward looking and estimated
information, including projections, are subject to significant uncertainties and contingencies,
many of which are beyond the control of the Borrower and its Subsidiaries, and that no assurance
can be given that any forward looking or estimated information (including any projected financial
information) will be realized.
SECTION 7.2. Survival of Representations and Warranties, Etc. All representations and
warranties set forth in this Article VII and all representations and warranties contained
in any certificate, or any of the Loan Documents (including, but not limited to, any such
representation or warranty made in or in connection with any amendment thereto) shall constitute
representations and warranties made under this Agreement. All representations and warranties made
under this Agreement shall be made or deemed to be made at and as of the Closing Date (except those
that are expressly made as of a specific date), shall survive the Closing Date and shall not be
waived by the execution and delivery of this Agreement, any investigation made by or on behalf of
the Lenders or any borrowing hereunder.
ARTICLE VIII
FINANCIAL INFORMATION AND NOTICES
Until all the Obligations (other than (a) contingent indemnification obligations not then due
and (b) the Hedging Obligations) have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner set forth in Section 14.11, the
Borrower will furnish or cause to be furnished to the Administrative Agent at the Administrative
Agents Office at the address set forth in Section 14.1 or such other office as may be
designated by the Administrative Agent from time to time:
SECTION 8.1. Financial Statements and Projections.
(a) Quarterly Financial Statements. As soon as practicable and in any event within
forty-five (45) days after the end of each of the first three (3) fiscal quarters of each Fiscal
Year (or, if either such date is earlier, on the date of any required public filing thereof, or
five (5) days following any date on which the Borrower may be required to file such statements), an
unaudited Consolidated balance sheet of the Borrower and its Subsidiaries as of the close of such
fiscal quarter and unaudited Consolidated statements of income and cash flows for the fiscal
quarter then ended and that portion of the Fiscal Year then ended, including the notes thereto, all
in reasonable detail setting forth in comparative form the corresponding figures as of the end of
and for the corresponding period in the preceding Fiscal Year and prepared by the Borrower in
accordance with GAAP and, if applicable, containing disclosure of the effect on the financial
position or results of operations of any change in the application of
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accounting principles and practices during the period, and certified by the chief financial
officer or treasurer of the Borrower to present fairly in all material respects the financial
condition of the Borrower and its Subsidiaries on a Consolidated basis as of their respective dates
and the results of operations of the Borrower and its Subsidiaries for the respective periods then
ended, subject to normal year end adjustments.
(b) Annual Financial Statements. As soon as practicable and in any event within ninety
(90) days after the end of each Fiscal Year (or, if either such date is earlier, on the date of any
required public filing thereof, or five (5) days following any date on which the Borrower may be
required to file such statements), an audited Consolidated balance sheet of the Borrower and its
Subsidiaries as of the close of such Fiscal Year and audited Consolidated statements of income,
retained earnings and cash flows for the Fiscal Year then ended, including the notes thereto, all
in reasonable detail setting forth in comparative form the corresponding figures as of the end of
and for the preceding Fiscal Year and prepared by KPMG LLP or another independent certified public
accounting firm reasonably acceptable to the Administrative Agent in accordance with GAAP and, if
applicable, containing disclosure of the effect on the financial position or results of operations
of any change in the application of accounting principles and practices during the year, and
accompanied by a report thereon by such certified public accountants that is not qualified with
respect to scope limitations imposed by the Borrower or any of its Subsidiaries or with respect to
accounting principles followed by the Borrower or any of its Subsidiaries not in accordance with
GAAP.
(c) Annual Business Plan and Financial Projections. As soon as practicable and in any
event within thirty (30) days after the beginning of each Fiscal Year, a business plan of the
Borrower and its Subsidiaries for the ensuing four (4) fiscal quarters, such plan to be prepared in
accordance with GAAP and to include, on a quarterly basis, the following: a quarterly operating and
capital budget, a projected income statement, statement of cash flows and balance sheet and a
report containing managements assumptions with respect to such projections, accompanied by a
certificate from the chief financial officer or treasurer of the Borrower to the effect that, to
the best of such officers knowledge, such projections are good faith estimates (utilizing
reasonable assumptions) of the financial condition and operations of the Borrower and its
Subsidiaries for such four (4) fiscal quarter period.
SECTION 8.2. Officers Compliance Certificate. At each time financial statements are
delivered pursuant to Sections 8.1 (a) or (b) and at such other times as the
Administrative Agent shall reasonably request, a certificate of the chief financial officer or the
treasurer of the Borrower in the form of Exhibit F attached hereto (an Officers
Compliance Certificate).
SECTION 8.3. Annual Accountants Certificate. At each time financial statements are
delivered pursuant to Section 8.1(b), a certificate of the independent public accountants
certifying such financial statements addressed to the Administrative Agent for the benefit of the
Lenders stating that in making the examination necessary for the certification of such financial
statements, they obtained no knowledge of any Default or Event of Default or, if such is not the
case, specifying such Default or Event of Default and its nature and period of existence.
SECTION 8.4. Other Reports.
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(a) Promptly upon receipt thereof, copies of all reports, if any, submitted to the Borrower or
its Board of Directors by its independent public accountants in connection with their auditing
function, including, without limitation, any management report and any management responses
thereto;
(b) Any information regarding the operations, business affairs and financial condition of the
Borrower or any of its Subsidiaries required to be delivered to the trustee or any noteholder under
any Permitted Senior Notes (including, without limitation, any notice required to be delivered
thereunder) which are not required to be delivered under this Agreement or any other Loan Document;
(c) Such other information regarding the operations, business affairs and financial condition
of the Borrower or any of its Subsidiaries as the Administrative Agent or any Lender may reasonably
request; and
(d) Promptly upon the request thereof, such other information and documentation required by
bank regulatory authorities under applicable know your customer and Anti-Money Laundering rules
and regulations (including, without limitation, the Patriot Act), as from time to time reasonably
requested by the Administrative Agent or any Lender.
SECTION 8.5. Notice of Litigation and Other Matters. Prompt (but in no event later
than ten (10) days after an officer of the Borrower obtains knowledge thereof) telephonic and
written notice of:
(a) the commencement of all proceedings and investigations by or before any Governmental
Authority and all actions and proceedings in any court or before any arbitrator against or
involving the Borrower or any Subsidiary thereof or any of their respective properties, assets or
businesses, which in any such case could reasonably be expected to have a Material Adverse Effect;
(b) any notice of any violation received by the Borrower or any Subsidiary thereof from any
Governmental Authority including, without limitation, any notice of violation of Environmental Laws
which in any such case could reasonably be expected to have a Material Adverse Effect;
(c) any labor controversy that has resulted in, or threatens to result in, a strike or other
work action against the Borrower or any Subsidiary thereof;
(d) any attachment, judgment, lien, levy or order exceeding $1,000,000 that may be assessed
against or threatened against the Borrower or any Subsidiary thereof;
(e) (i) any Default or Event of Default or (ii) the occurrence or existence of any event or
circumstance that foreseeably will become a Default or Event of Default;
(f) (i) any unfavorable determination letter from the Internal Revenue Service regarding the
qualification of an Employee Benefit Plan under Section 401(a) of the Code (along with a copy
thereof), (ii) all notices received by the Borrower or any ERISA Affiliate of the PBGCs intent to
terminate any Pension Plan or to have a trustee appointed to administer
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any Pension Plan, (iii) all notices received by the Borrower or any ERISA Affiliate from a
Multiemployer Plan sponsor concerning the imposition or amount of withdrawal liability pursuant to
Section 4202 of ERISA and (iv) the Borrower obtaining knowledge that the Borrower or any ERISA
Affiliate has filed or intends to file a notice of intent to terminate any Pension Plan under a
distress termination within the meaning of Section 4041(c) of ERISA; and
(g) any event which makes any of the representations set forth in Article VII that is
subject to materiality or Material Adverse Effect qualifications inaccurate in any respect or any
event which makes any of the representations set forth in Article VII that is not subject
to materiality or Material Adverse Effect qualifications inaccurate in any material respect.
SECTION 8.6. Extension of Time. Notwithstanding anything in this Agreement to the
contrary, the Administrative Agent may, in its sole discretion, extend the delivery deadline
applicable to any notice, certificate or other information required to be delivered under this
Article VIII for a period of time not to exceed five (5) Business Days.
SECTION 8.7. Accuracy of Information. All written information, reports, statements and
other papers and data furnished by or on behalf of the Borrower to the Administrative Agent or any
Lender whether pursuant to this Article VIII or any other provision of this Agreement, or
any of the Security Documents, shall, at the time the same is so furnished, comply with the
representations and warranties set forth in Section 7.1(y).
SECTION 8.8. Public/Private Designation for Borrower Materials. The Borrower hereby
acknowledges that (a) the Administrative Agent and/or an Arranger will make available to the
Lenders and the Issuing Lender written materials and/or information provided by or on behalf of the
Borrower hereunder (collectively, Borrower Materials) by posting the Borrower Materials
on SyndTrak Online or another similar electronic system (the Platform) and (b) certain of
the Lenders may be public-side Lenders (i.e., Lenders that do not wish to receive
material non-public information with respect to the Borrower or its securities) (each, a
Public Lender). The Borrower hereby agrees that it will use commercially reasonable
efforts to identify that portion of the Borrower Materials that may be distributed to the Public
Lenders and that (w) all such Borrower Materials shall be clearly and conspicuously marked PUBLIC
which, at a minimum, shall mean that the word PUBLIC shall appear prominently on the first page
thereof; (x) by marking Borrower Materials PUBLIC, the Borrower shall be deemed to have
authorized the Administrative Agent, the Arrangers, the Issuing Lender and the Lenders to treat
such Borrower Materials as not containing any material non-public information (although it may be
sensitive and proprietary) with respect to the Borrower or its securities for purposes of United
States Federal and state securities laws; (y) all Borrower Materials marked PUBLIC are permitted
to be made available through a portion of the Platform designated Public Investor; and (z) the
Administrative Agent and the Arrangers shall be entitled to treat any Borrower Materials that are
not marked PUBLIC as being suitable only for posting on a portion of the Platform not designated
Public Investor. Notwithstanding any other provision of this Section, to the extent such Borrower
Materials constitute Information, they shall be treated as set forth in Section 14.12.
SECTION 8.9. Documentation Delivery Requirements. Documents required to be delivered
pursuant to this Article may be delivered electronically and if so delivered, shall be
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deemed to have been delivered on the date (a) on which the Borrower posts such documents, or
provides a link thereto on the Borrowers website on the Internet at the website address listed in
Section 14.1; or (b) on which such documents are posted on the Borrowers behalf on an
Internet or intranet website, if any, to which each Lender and the Administrative Agent have access
(whether a commercial, third-party website or whether sponsored by the Administrative Agent);
provided that the Borrower shall deliver paper copies of such documents to the
Administrative Agent or any Lender that requests the Borrower to deliver such paper copies until a
written request to cease delivering paper copies is given by the Administrative Agent or such
Lender; provided, further, for the avoidance of doubt, that the Borrower shall be
deemed to have satisfied Sections 8.1(a) and (b), respectively, upon the filing
within the applicable time period specified herein of its applicable 10-Q or 10-K report with the
SEC and the notification to the Administrative Agent (which such notice may be delivered to the
Administrative Agent via electronic mail in accordance with Section 14.1) of (i) the
availability of any such report and (ii) the website noted in clause (a) or (b) above where any
such report can be viewed. Notwithstanding anything contained herein, in every instance the
Borrower shall be required to provide paper copies of the Officers Compliance Certificates
required by Section 8.2 to the Administrative Agent. Except for such Officers Compliance
Certificates, the Administrative Agent shall have no obligation to request the delivery or to
maintain copies of the documents referred to above, and in any event shall have no responsibility
to monitor compliance by the Borrower with any such request for delivery, and each Lender shall be
solely responsible for requesting delivery to it or maintaining its copies of such documents.
ARTICLE IX
AFFIRMATIVE COVENANTS
Until all of the Obligations (other than (a) contingent indemnification obligations not then
due and (b) the Hedging Obligations) have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner provided for in Section 14.11,
the Borrower will, and will cause each of its Restricted Subsidiaries to:
SECTION 9.1. Preservation of Corporate Existence and Related Matters. Except as
permitted by Section 11.4, (a) preserve and maintain its separate existence and all
material rights, franchises, licenses and privileges necessary to the conduct of its business, and
(b) qualify and remain qualified as a foreign corporation and authorized to do business in each
jurisdiction in which the failure to so qualify could reasonably be expected to have a Material
Adverse Effect.
SECTION 9.2. Maintenance of Property. In addition to the requirements of any of the
Security Documents, protect and preserve all properties useful in and material to its business in
accordance with sound business practices, including copyrights, patents, trade names, service marks
and trademarks; maintain in good working order and condition in accordance with sound business
practices all buildings, equipment and other tangible real and personal property; and from time to
time make or cause to be made all renewals, replacements and additions to such property necessary
for the conduct of its business, so that the business carried on in connection therewith may be
conducted in a commercially reasonable manner.
SECTION 9.3. Insurance. Maintain insurance with financially sound and reputable
insurance companies against such risks and in such amounts as are customarily maintained by
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similar businesses and as may be required by Applicable Law and as are required by any
Security Documents, and on the Closing Date and from time to time thereafter deliver to the
Administrative Agent upon its request a detailed list of the insurance then in effect, stating the
names of the insurance companies, the amounts and rates of the insurance, the dates of the
expiration thereof and the properties and risks covered thereby.
SECTION 9.4. Accounting Methods and Financial Records. Maintain a system of
accounting, and keep such books, records and accounts (which shall be true and complete in all
material respects) as may be required or as may be necessary to permit the preparation of financial
statements in accordance with GAAP and in compliance with the regulations of any Governmental
Authority having jurisdiction over it or any of its properties.
SECTION 9.5. Compliance With Laws and Approvals. Observe and remain in compliance in
all material respects with all Applicable Laws and maintain in full force and effect all material
Governmental Approvals, in each case applicable to the conduct of its business.
SECTION 9.6. Environmental Laws. In addition to and without limiting the generality of
Section 9.5, (a) materially comply with, and use commercially reasonable efforts to ensure
such material compliance by all tenants and subtenants with all applicable Environmental Laws and
obtain and comply with and maintain, and use commercially reasonable efforts to ensure that all
tenants and subtenants, if any, obtain and comply with and maintain, any and all material licenses,
approvals, notifications, registrations or permits required by applicable Environmental Laws, (b)
conduct and complete all investigations, studies, sampling and testing, and all remedial, removal
and other actions required under Environmental Laws, and promptly comply with all lawful orders and
directives of any Governmental Authority regarding Environmental Laws, and (c) defend, indemnify
and hold harmless the Administrative Agent and the Lenders, and their respective parents,
Subsidiaries, Affiliates, employees, agents, officers and directors, from and against any claims,
demands, penalties, fines, liabilities, settlements, damages, costs and expenses of whatever kind
or nature known or unknown, contingent or otherwise, arising out of, or in any way relating to the
presence of Hazardous Materials, or the violation of, noncompliance with or liability under any
Environmental Laws applicable to the operations of the Borrower or any such Restricted Subsidiary,
or any orders, requirements or demands of Governmental Authorities related thereto, including,
without limitation, reasonable attorneys and consultants fees, investigation and laboratory fees,
response costs, court costs and litigation expenses, except to the extent that any of the foregoing
directly result from the gross negligence or willful misconduct of the party seeking
indemnification therefor as determined by a court of competent jurisdiction by final nonappealable
judgment.
SECTION 9.7. Compliance with ERISA. In addition to and without limiting the generality
of Section 9.5, (a) except where the failure to so comply could not, individually or in the
aggregate, reasonably be expected to have a Material Adverse Effect, (i) comply with all applicable
provisions of ERISA and the regulations and published interpretations thereunder with respect to
all Employee Benefit Plans, (ii) not take any action or fail to take action the result of which
could be a liability to the PBGC or to a Multiemployer Plan, (iii) not participate in any
prohibited transaction that could result in any civil penalty under ERISA or tax under the Code and
(iv) operate each Employee Benefit Plan in such a manner that will not incur any tax liability
under Section 4980B of the Code or any liability to any qualified beneficiary as defined in
74
Section 4980B of the Code and (b) furnish to the Administrative Agent upon the Administrative
Agents request such additional information about any Pension Plan as may be reasonably requested
by the Administrative Agent to confirm compliance with this Section.
SECTION 9.8. Visits and Inspections. Permit representatives of the Administrative
Agent or any Lender, from time to time, to visit and inspect its properties; inspect, audit and
make extracts from its books, records and files, including, but not limited to, management letters
prepared by independent accountants; and discuss with its principal officers, and its independent
accountants, its business, assets, liabilities, financial condition, results of operations and
business prospects.
SECTION 9.9. Additional Subsidiaries.
(a) Additional Domestic Subsidiary. Notify the Administrative Agent of (i) the
redesignation of an Unrestricted Subsidiary as a Restricted Subsidiary in accordance with
Section 9.9(c) below or (ii) the creation or acquisition of any Domestic Subsidiary, and
(unless such Domestic Subsidiary has been designated as an Unrestricted Subsidiary pursuant to
Section 9.9(d) and subject to Section 9.9(f)) promptly thereafter (and in any event
within thirty (30) days (as may be extended by the Administrative Agent in its reasonable
discretion)), cause such Person to (A) become a Guarantor by executing and delivering to the
Administrative Agent a counterpart of the Guaranty Agreement or such other document as the
Administrative Agent shall deem appropriate for such purpose, (B) deliver to the Administrative
Agent a duly executed Joinder Agreement and comply with the terms of each Security Document, (C)
deliver to the Administrative Agent documents of the types referred to in clauses (ii) and (iii) of
Section 6.1(b) and (D) deliver to the Administrative Agent such other documents and closing
certificates (and including, without limitation, opinions of counsel to such Person) as may be
reasonably requested by the Administrative Agent, all in form, content and scope reasonably
satisfactory to the Administrative Agent.
(b) Additional Foreign Subsidiaries. Notify the Administrative Agent at the time that
any Person becomes a first tier Foreign Subsidiary of any Credit Party, and at the request of the
Administrative Agent, promptly thereafter (and in any event within forty-five (45) days after such
request (as may be extended by the Administrative Agent in its reasonable discretion)), cause (i)
the applicable Credit Party to deliver to the Administrative Agent a supplement to the Security
Documents pledging sixty-six percent (66%) of the total outstanding voting ownership interest or
Capital Stock (and 100% of the non-voting ownership interest or Capital Stock) of such new Foreign
Subsidiary and a consent thereto executed by such new Foreign Subsidiary (including, without
limitation, if applicable, original stock certificates (or the equivalent thereof pursuant to the
Applicable Laws and practices of any relevant foreign jurisdiction) evidencing the ownership
interest or Capital Stock of such new Foreign Subsidiary, together with an appropriate undated
stock power for each certificate duly executed in blank by the registered owner thereof), (ii) such
Person to deliver to the Administrative Agent documents of the types referred to in clauses (ii)
and (iii) of Section 6.1(b), and (iii) such Person to deliver to the Administrative Agent
such other documents and closing certificates (and including, without limitation, opinions of
counsel to such Person) as may be reasonably requested by the Administrative Agent, all in form,
content and scope reasonably satisfactory to the Administrative Agent.
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(c) Redesignation of Unrestricted Subsidiaries. At any time, at the option of the
Borrower, upon written notice to the Administrative Agent, redesignate an Unrestricted Subsidiary
as a Restricted Subsidiary. Further, promptly after the date on which the Borrower or the
Administrative Agent determines that either (i) any Unrestricted Subsidiary and its Subsidiaries
individually represent two and one half percent (2.5%) or more of (A) the Consolidated EBITDA of
the Borrower and its Subsidiaries for the four (4) consecutive fiscal quarters most recently ended
prior to such date or (B) the Consolidated assets of the Borrower and its Subsidiaries as of the
most recently ended fiscal quarter prior to such date or (ii) all Unrestricted Subsidiaries and
their respective Subsidiaries collectively represent in the aggregate five percent (5%) or more of
(A) the Consolidated EBITDA of the Borrower and its Subsidiaries for the four (4) consecutive
fiscal quarters most recently ended prior to such date or (B) the Consolidated assets of the
Borrower and its Subsidiaries as of the most recently ended fiscal quarter prior to such date, then
the Borrower shall promptly identify in writing to the Administrative Agent such Unrestricted
Subsidiaries to be redesignated as Restricted Subsidiaries to cause such remaining Unrestricted
Subsidiaries and their Subsidiaries (after giving effect to such redesignation) to individually
represent less than two and one half percent (2.5%) of each of the Consolidated EBITDA of the
Borrower and its Subsidiaries for the four (4) consecutive fiscal quarters most recently ended
prior to such date and the Consolidated assets of the Borrower and its Subsidiaries as of the most
recently ended fiscal quarter prior to such date and collectively represent in the aggregate less
than five percent (5%) of each of the Consolidated EBITDA of the Borrower and its Subsidiaries for
the four (4) consecutive fiscal quarters most recently ended prior to such date and the
Consolidated assets of the Borrower and its Subsidiaries as of the most recently ended fiscal
quarter prior to such date. Upon the redesignation of any Unrestricted Subsidiary as a Restricted
Subsidiary, (x) all outstanding Debt of such Subsidiary shall be deemed to have been incurred by
such Subsidiary of the Borrower on such date of redesignation and after giving effect to such
redesignation and (y) all outstanding investments of such Subsidiary shall be deemed to be an
investment of a Restricted Subsidiary of the Borrower as of such date of redesignation and after
giving effect to such redesignation.
(d) Designation of Restricted Subsidiaries. So long as no Default or Event of Default
has occurred and is continuing, at the option of the Borrower, on prior written notice to the
Administrative Agent, redesignate any Restricted Subsidiary as an Unrestricted Subsidiary (or
designate any newly formed or acquired Subsidiary as an Unrestricted Subsidiary; provided
that such formation or acquisition is otherwise permitted hereunder), so long as the Administrative
Agent reasonably determines that at the time of such proposed designation (or redesignation, as
applicable), and after giving effect thereto, the Unrestricted Subsidiaries and their respective
Subsidiaries (including the Subsidiary and its respective Subsidiaries to be designated or
redesignated, as applicable, as an Unrestricted Subsidiary) (i) individually represent less than
two and one half percent (2.5%) of each of (A) the Consolidated EBITDA of the Borrower and its
Subsidiaries for the four (4) consecutive fiscal quarters most recently ended prior to such date
and (B) the Consolidated assets of the Borrower and its Subsidiaries as of the most recently ended
fiscal quarter prior to such date and (ii) collectively represent in the aggregate less than five
percent (5%) of each of (A) the Consolidated EBITDA of the Borrower and its Subsidiaries for the
four (4) consecutive fiscal quarters most recently ended prior to such date and (B) the
Consolidated assets of the Borrower and its Subsidiaries as of the most recently ended fiscal
quarter prior to such date. Such designation (or redesignation, as applicable) shall
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have an effective date mutually acceptable to the Administrative Agent and Borrower, but in no
event earlier than five (5) Business Days following receipt by the Administrative Agent of such
written notice.
(e) Additional Collateral. Notify the Administrative Agent, within ten (10) days after
the occurrence thereof, of the acquisition of any property by any Credit Party that is of the same
type and character of the Collateral subject to any Security Document, but that is not subject to
the existing Security Documents (taking into account any after-acquired property provisions
thereof), any Persons becoming a Subsidiary and any other event or condition that may require
additional action of any nature in order to preserve the effectiveness and perfected status of the
Liens and security interests of the Administrative Agent and the Lenders with respect to the
Collateral pursuant to the Security Documents.
(f) Permitted Franchisee Financing SPE. Notwithstanding any other provision hereof,
no Permitted Franchisee Financing SPE will be required to become a Subsidiary Guarantor or to grant
any Lien on its assets to secure the Obligations, nor shall the Capital Stock issued by any
Permitted Franchisee Financing SPE be required to be pledged to secure the Obligations, in each
case to the extent that such Permitted Franchisee Financing SPE (or the applicable holder of its
Capital Stock) is prohibited from taking such actions by Applicable Law or any legally binding
agreement to which it is a party.
SECTION 9.10. Use of Proceeds.
(a) Use the proceeds of the Term Loan (i) to refinance certain existing Debt of the Borrower
and its Subsidiaries, including, without limitation, Debt under Existing Credit Agreement and (ii)
to pay fees, commissions and expenses incurred in connection with (A) this Agreement and (B) the
refinancing noted in subsection (i) above.
(b) Use the proceeds of the Extensions of Credit under the Revolving Credit Facility (i) to
refinance certain existing Debt of the Borrower and its Subsidiaries, including, without
limitation, Debt under Existing Credit Agreement, (ii) to pay fees, commissions and expenses
incurred in connection with (A) this Agreement and (B) the refinancing noted in subsection (i)
above or (iii) to finance ongoing working capital requirements and other general corporate purposes
(including permitted share repurchases, permitted dividends and Permitted Acquisitions).
SECTION 9.11. Payment of Taxes and Other Obligations. Pay and perform all taxes,
assessments and other governmental charges that may be levied or assessed upon it or any of its
property except where the failure to pay or perform such items could not reasonably be expected to
have a Material Adverse Effect.
SECTION 9.12. Further Assurances.
(a) Make, execute and deliver all such additional and further acts, things, deeds and
instruments as the Administrative Agent or the Required Lenders (through the Administrative Agent)
may reasonably require to document and consummate the transactions contemplated hereby and to vest
completely in and insure the Administrative Agent and the Lenders their respective rights under
this Agreement, the Letters of Credit and the other Loan Documents.
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(b) Upon any Responsible Officer of the Borrower or any of its Restricted Subsidiaries
becoming aware of any Debt or contractual obligation which contains any negative pledge on any of
its properties or assets (whether now owned or hereafter acquired) that restricts or limits its
ability to create, incur or assume Liens at any time securing the Obligations or that requires the
grant of any security for such obligation if security is given for the Obligations, other than any
negative pledge described in clauses (i) (vii) of Section 11.11(a), immediately notify
the Administrative Agent of the existence and scope of such negative pledge, and as promptly as
possible (but in no event later than thirty (30) days after the date the Borrower or any of its
Restricted Subsidiaries becomes aware of such negative pledge (as such date may be extended by the
Administrative Agent in its sole discretion)) either (i) amend such Debt or contractual obligation
to eliminate such negative pledge to the extent applicable to the Obligations or (ii) repay in full
and/or terminate such Debt or contractual obligation, in each case to the extent necessary to
permit the Obligations to be secured by the properties and assets of the Borrower and its
Restricted Subsidiaries without any requirement that security be giving for such other obligation
if security is given for the Obligations.
ARTICLE X
FINANCIAL COVENANTS
Until all of the Obligations (other than (a) contingent indemnification obligations not then
due and (b) the Hedging Obligations) have been paid and satisfied in full and the Commitments
terminated, unless consent has been obtained in the manner set forth in Section 14.11, the
Borrower and its Subsidiaries on a Consolidated basis will not:
SECTION 10.1. Maximum Leverage Ratio. As of any fiscal quarter end, permit the ratio
of (a) Funded Debt on such date to (b) EBITDA for the four (4) consecutive fiscal quarter period
ending on or immediately prior to such date (such ratio, the Leverage Ratio) to be
greater than 2.25 to 1.00.
SECTION 10.2. Minimum Fixed Charge Coverage Ratio. As of any fiscal quarter end,
permit the ratio of (a) the sum of (i) EBITDAR for the four (4) consecutive fiscal quarter period
ending on or immediately prior to such date less (ii) Maintenance Capital Expenditures for
the four (4) consecutive fiscal quarter period ending on or immediately prior to such date to (b)
the sum of (i) Rental Expense for the four (4) consecutive fiscal quarter period ending on or
immediately prior to such date plus (ii) Interest Expense for the four (4) consecutive
fiscal quarter period ending on or immediately prior to such date plus (iii) the sum of all
scheduled principal payments made in respect of the Term Loan Facility pursuant to Section
4.3 for the four (4) consecutive fiscal quarter period ending on or immediately prior to such
date to be less than the corresponding ratio set forth below:
|
|
|
Period |
|
Minimum Ratio |
Closing Date to and including
July 10, 2011
|
|
1.35 to 1.00 |
Thereafter
|
|
1.50 to 1.00 |
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SECTION 10.3. Maximum Capital Expenditures. Permit the aggregate amount of all Capital
Expenditures in any Fiscal Year to exceed $175,000,000. Notwithstanding the foregoing, any unused
Capital Expenditure allowance with respect to any Fiscal Year may be carried over to the
immediately following Fiscal Year, on a non-cumulative basis; provided, that the amount of
any Capital Expenditures in any Fiscal Year shall be deemed made first, in respect of
maximum Capital Expenditures for such Fiscal Year and second, in respect of amounts carried
over from the prior Fiscal Year.
ARTICLE XI
NEGATIVE COVENANTS
Until all of the Obligations (other than (a) contingent indemnification obligations not then
due and (b) the Hedging Obligations) have been paid and satisfied in full and the Revolving Credit
Commitments terminated, unless consent has been obtained in the manner set forth in Section
14.11, the Borrower has not and will not and will not permit any of its Restricted Subsidiaries
(other than any Permitted Franchisee Financing SPE, as to which the provisions of this Article
XI shall be inapplicable) to:
SECTION 11.1. Limitations on Debt. Create, incur, assume or suffer to exist any Debt
except:
(a) the Obligations (excluding Hedging Obligations permitted pursuant to Section
11.1(b));
(b) Debt incurred in connection with a Hedging Agreement incurred in the ordinary course of
business and not for speculative purposes and with a counterparty reasonably satisfactory to the
Administrative Agent; provided, that any counterparty that is a Lender or an Affiliate of a
Lender shall be deemed satisfactory to the Administrative Agent;
(c) Debt existing on the Closing Date and not otherwise permitted under this Section
11.1, as set forth on Schedule 11.1(c);
(d) Debt of the Borrower and its Restricted Subsidiaries incurred in connection with Capital
Leases and purchase money Debt in an aggregate amount not to exceed $35,000,000 outstanding at any
time;
(e) unsecured Subordinated Debt of the Borrower and Guaranty Obligations of the Guarantors
with respect to such Subordinated Debt; provided that in the case of each issuance of
Subordinated Debt and each such Guaranty Obligation, (i) no Default or Event of Default shall have
occurred and be continuing or would be caused by any issuance of such Subordinated Debt or
incurrence of such Guaranty Obligation, (ii) the Administrative Agent shall have received
satisfactory written evidence that the Borrower would be in compliance with Sections 10.1
and 10.2 on a pro forma basis after giving effect to any issuance of such
Subordinated Debt or incurrence of such Guaranty Obligation (iii) the Borrower shall have complied
with the requirements of Section 4.4(b) and (iv) all Guaranty Obligations under this
subsection (e) shall be subordinated to the Obligations to the same extent that the Subordinated
Debt guaranteed by such Guaranty Obligation is subordinated to the Obligations.
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(f) Debt of the Borrower and its Restricted Subsidiaries not otherwise permitted pursuant to
this Section 11.1 in an aggregate principal amount not to exceed $25,000,000 outstanding at
any time; provided that no more than the lesser of (i) $3,000,000 in aggregate principal
amount outstanding at any time and (ii) the amount of such Debt which may be secured pursuant to
Section 11.2(q) (after giving effect to any other Debt which is secured thereunder) may be
secured;
(g) Guaranty Obligations with respect to the Obligations;
(h) Debt owed by any Restricted Subsidiary to the Borrower, by the Borrower to any Restricted
Subsidiary, or by any Restricted Subsidiary to another Restricted Subsidiary;
(i) Guaranty Obligations incurred by Borrower with respect to Debt of any Restricted
Subsidiary (such Debt, the Other Guaranteed Debt); provided that if the Other
Guaranteed Debt is subordinated to, or pari passu with, the Obligations, then the Guaranty
Obligation must be subordinated to, or pari passu with, as applicable, the Obligations to the same
extent as the Other Guaranteed Debt;
(j) Debt consisting of Capital Leases entered into pursuant to Permitted Sale-Leaseback
Transactions;
(k) indorsement of negotiable instruments for deposit or collection or similar transactions in
the ordinary course of business; surety bonds and appeal bonds required in the ordinary course of
business or in connection with the enforcement of rights or claims of the Borrower or any
Restricted Subsidiary or in connection with judgments that do not result in a Default or Event of
Default;
(l) Debt incurred solely in connection with financing the Innovation Center Property in an
aggregate principal amount not to exceed $25,000,000 outstanding at any time;
(m) Debt of the Borrower or any of its Restricted Subsidiaries consisting of all obligations,
contingent or otherwise, of the Borrower or any of its Restricted Subsidiaries relative to the face
amount of the Independent Letters of Credit, whether drawn or undrawn, including, without
limitation, any reimbursement obligations in connection with the Independent Letters of Credit;
(n) Debt existing at the time that any Person became a Subsidiary or assets were acquired from
such Person in connection with a Permitted Acquisition to the extent that (i) such Debt was not
incurred in connection with or in contemplation of, such Person becoming a Subsidiary or the
acquisition of such assets, (ii) neither the Borrower nor any Subsidiary thereof shall have any
liability or other obligation with respect to such Debt, (iii) the Administrative Agent has
received a certificate, in form and substance reasonably satisfactory to the Administrative Agent,
demonstrating that after giving effect to the assumption of such Debt and the acquisition of such
Person or such assets pursuant to, and in accordance with, the definition of EBITDA, the Borrower
and its Subsidiaries shall be in pro forma compliance with the covenants set forth
in Sections 10.1 and 10.2 and (iv) the aggregate principal amount of such Debt
outstanding at any time shall not exceed $75,000,000;
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(o) Debt of the Borrower in connection with Permitted Senior Notes and Guaranty Obligations of
the Guarantors with respect to the Permitted Senior Notes; provided that the Borrower shall
have complied with the requirements of Section 4.4(b);
(p) Debt of the Borrower or any Restricted Subsidiary incurred pursuant to any earn-out
agreement relating to any Permitted Acquisition;
(q) any refinancings, refundings, renewals or extensions of the Debt permitted pursuant to
subsections (c), (n) and (o) above; provided that (A) the principal amount (or accreted
value, if applicable) of such Debt is not increased at the time of such refinancing, refunding,
renewal or extension except by an amount equal to a reasonable premium or other reasonable amount
paid, and fees and expenses reasonably incurred, in connection with such refinancing, (B) the final
maturity date and weighted average life of such refinancing, refunding, renewal or extension shall
not be prior to or shorter than that applicable to the Debt prior to such refinancing, refunding,
renewal or extension and (C) any such refinancing, refunding, renewal or extension shall (1) in the
case of a refinancing, refinancing, renewal or extension of Debt that was originally permitted to
be created, incurred or assumed pursuant to subsection (n) above, satisfy the conditions to the
creation, incurrence or assumption of Debt under clause (ii) of subsection (n), (2) in the case of
a refinancing, refinancing, renewal or extension of Debt that was originally permitted to be
created or incurred pursuant to subsection (o) above, satisfy the terms of the definition of
Permitted Senior Notes (other than clause (e) of such definition) and (3) be in an amount not less
than the amount outstanding at the time of such refinancing, refunding, renewal or extension; and
(r) Debt of the Borrower or any Restricted Subsidiary consisting of Guaranty Obligations with
respect to the Debt or other obligations of Permitted Franchisee Financing SPE incurred in
connection with a Permitted Franchisee Financing Program; provided that the aggregate
amount of such Guaranty Obligations (which in each case shall be deemed to be an amount equal to
the stated or determinable amount of the related primary obligation, or portion thereof, in respect
of which such Guaranty Obligation is made or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the Borrower in good faith) shall not, at
any time, exceed (i) $100,000,000 less (ii) the aggregate amount of outstanding investments
made by the Borrower and its Restricted Subsidiaries in Permitted Franchisee Financing SPEs and/or
franchisees pursuant to Section 11.3(e);
provided, that in no event shall the Borrower or any of its Subsidiaries incur, assume or
suffer to exist any Guaranty Obligations with respect to Debt of any Unrestricted Subsidiary.
SECTION 11.2. Limitations on Liens. Create, incur, assume or suffer to exist, any Lien
on or with respect to any of its assets or properties (including, without limitation, shares of
Capital Stock), real or personal, whether now owned or hereafter acquired, except:
(a) Liens for taxes, assessments and other governmental charges or levies not yet due or as to
which the period of grace (not to exceed thirty (30) days), if any, related thereto has not expired
or which are being contested in good faith and by appropriate proceedings if adequate reserves are
maintained to the extent required by GAAP;
81
(b) Liens imposed by law, including Liens arising with respect to the claims of materialmen,
mechanics, carriers, warehousemen, processors or landlords for labor, materials, supplies or
rentals and other similar Liens incurred in the ordinary course of business, (i) securing
obligations which are not overdue for a period of more than thirty (30) days or (ii) which are
being contested in good faith and by appropriate proceedings;
(c) Liens consisting of deposits or pledges made in the ordinary course of business in
connection with, or to secure payment of, obligations under workers compensation, unemployment
insurance or similar legislation, or to secure the performance of bids, trade contracts, leases,
statutory obligations, surety and appeal bonds, performance bonds and other obligations of a like
nature incurred in the ordinary course of business;
(d) Liens constituting encumbrances in the nature of zoning restrictions, easements and rights
or restrictions of record on the use of real property, which in the aggregate are not substantial
in amount and which do not, in any case, detract from the value of such property or impair the use
thereof in the ordinary conduct of business;
(e) attachment or judgment Liens not giving rise to an Event of Default;
(f) to the extent constituting Liens, leases, subleases, licenses and rights-of use granted to
others not interfering in any material respect with the ordinary conduct of business of the
Borrower or any of its Restricted Subsidiaries;
(g) Liens in favor of a trustee in an indenture relating to the Borrowers public Debt
(including any Permitted Senior Notes) to the extent such Liens secure only customary compensation
and reimbursement obligations of such trustee under such indenture;
(h) Liens securing the Obligations;
(i) Liens not otherwise permitted by this Section 11.2 and in existence on the Closing
Date and described on Schedule 11.2;
(j) Liens not otherwise permitted by this Section 11.2, for notice purposes only
arising in connection with Permitted Sale-Leaseback Transactions; provided that, with
respect to each Permitted Sale-Leaseback Transaction, such notice Liens extend only to the property
subject to such Permitted Sale-Leaseback Transaction;
(k) Liens securing Debt permitted under Sections 11.1(d) and (j);
provided that (i) such Liens shall be created substantially simultaneously with the
acquisition or lease of the related asset or refinance of such Debt, and (ii) such Liens do not at
any time encumber any property other than the property financed by such Debt;
(l) a mortgage Lien solely upon the real property and improvements constructed thereon
comprising the Innovation Center Property securing the Debt permitted under Section
11.1(l);
(m) (i) Liens of a collecting bank arising in the ordinary course of business under Section
4-208 of the UCC in effect in the relevant jurisdiction and (ii) Liens of any
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depositary bank in connection with statutory, common law and contractual rights of set-off and
recoupment with respect to any deposit account of the Borrower or any Restricted Subsidiary
thereof;
(n) Liens of the Independent Issuer in and to the Independent Collateral Account and the items
deposited therein;
(o) Liens on tangible property (including real property) or tangible assets of the Borrower or
any Restricted Subsidiary thereof acquired pursuant to a Permitted Acquisition and securing Debt
permitted pursuant to Section 11.1(n), or on tangible property (including real property) or
tangible assets of any Restricted Subsidiary of the Borrower which are in existence at the time
that such Restricted Subsidiary of the Borrower is acquired pursuant to a Permitted Acquisition
(provided that (i) such Liens (A) are applicable only to specific tangible property
(including real property) or tangible assets, (B) are not blanket or all asset Liens; and (C) do
not attach to any other property or assets of the Borrower or any Restricted Subsidiary thereof and
(ii) the aggregate amount of all Debt secured by such Liens shall not exceed $25,000,000
outstanding at any time);
(p) Liens securing obligations with respect to any commodity swap or other agreement or
arrangement related to commodity prices in an aggregate amount not to exceed $5,000,000 at any
time;
(q) additional Liens not otherwise permitted by this Section 11.2 in an aggregate
amount not to exceed $3,000,000 at any time; and
(r) Liens on cash collateral provided for in Section 5.14.
SECTION 11.3. Limitations on Loans, Advances, Investments and Acquisitions. Purchase,
own, invest in or otherwise acquire, directly or indirectly, any Capital Stock (including, without
limitation, the creation or capitalization of any Subsidiary), evidence of Debt (other than
Guaranty Obligations permitted pursuant to Section 11.1) or other obligation or security
(including any security constituting a warrant or an option with respect to Capital Stock), in each
case of any other Person; consummate any Acquisition, or make or permit to exist, directly or
indirectly, any loans, advances or extensions of credit to, or any investment in cash or by
delivery of property in, any other Person except:
(a) investments (i) in Subsidiaries made prior to the Closing Date, (ii) in Restricted
Subsidiaries formed or acquired after the Closing Date so long as the Borrower and its Subsidiaries
comply with the applicable provisions of Section 9.9 and (iii) the other loans, advances
and investments made prior to the Closing Date described on Schedule 11.3;
(b) investments in (i) marketable direct obligations issued or unconditionally guaranteed by
the United States of America or any agency thereof (provided that the full faith and credit of the
United States of America is pledged in support of those obligations) maturing within ninety (90)
days from the date of acquisition thereof, (ii) commercial paper (A) maturing no more than ninety
(90) days from the date of creation thereof and currently having a rating of at least A-2 from S&P
or P-2 from Moodys or (B) maturing no more than one (1) year from the date of creation thereof and
currently having a rating of at least A-1 from S&P or P-1 from
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Moodys, (iii) certificates of deposit maturing no more than one hundred twenty (120) days
from the date of creation thereof issued by commercial banks incorporated under the laws of the
United States of America, each having combined capital, surplus and undivided profits of not less
than $500,000,000 and having a rating of A or better by a nationally recognized rating agency;
provided, that the aggregate amount invested in such certificates of deposit shall not at
any time exceed $5,000,000 for any one such certificate of deposit and $10,000,000 for any one such
bank, (iv) time deposits maturing no more than thirty (30) days from the date of creation thereof
with commercial banks or savings banks or savings and loan associations each having membership
either in the FDIC or the deposits of which are insured by the FDIC and in amounts not exceeding
the maximum amounts of insurance thereunder, (v) investments by the Borrower in any evidence of
debt issued by a state, city, town, county or their agencies and paying interest which is exempt
from federal tax; provided, that the maturity is ninety (90) days or less and such debt is
rated at least A-1, SP-1 or AAA by S&P or at least P-1, MIG-1 or Aaa by Moodys and (vi)
investments by the Borrower in money market funds and mutual funds which invest substantially all
of their assets in securities of the types described in clauses (i) through (v) above;
(c) Hedging Agreements permitted pursuant to Section 11.1 and any commodity swap or
other agreement or arrangement related to commodity prices;
(d) investments in the form of Capital Expenditures permitted pursuant to this Agreement;
(e) cash investments, in (i) any Permitted Franchisee Financing SPE or (ii) franchisees of the
Borrower; provided that the outstanding amount of such investments made pursuant to this
subsection (e) at any time shall not exceed (A) $100,000,000 less (B) the aggregate amount
of Guaranty Obligations with respect to the Debt or other obligations of such franchisees or with
respect to the Debt of any Permitted Franchisee Financing SPE permitted under Section
11.1(r);
(f) investments in the form of loans and advances to officers and employees of the Borrower
and its Subsidiaries in the ordinary course of the business of the Borrower and its Subsidiaries as
presently conducted in an aggregate principal amount not to exceed $2,000,000 at any time
outstanding;
(g) additional non-speculative investments of the Borrower and its Restricted Subsidiaries not
otherwise permitted pursuant to this Section 11.3 not to exceed $25,000,000 in the
aggregate at any time outstanding; and
(h) investments by the Borrower or any of its Restricted Subsidiaries in the form of
Acquisitions if the Borrower and its Restricted Subsidiaries promptly comply with Section
9.9 hereof (each, a Permitted Acquisition); provided that:
(i) the Person to be acquired shall be engaged in a business, or the assets to
be acquired shall be used in a business, similar or complementary to the line of
business of the Borrower and its Subsidiaries, and such acquisition shall
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have been approved by the board of directors or equivalent governing body (or
the shareholders) of the seller and/or the Person to be acquired;
(ii) the Borrower or its Restricted Subsidiary, as applicable, shall be the
surviving Person and no Change in Control shall have been effected thereby;
(iii) the Borrower shall demonstrate, to the reasonable satisfaction of the
Administrative Agent, pro forma compliance with the covenants
contained in Sections 10.1 and 10.2 both before and immediately
after giving effect to such acquisition pursuant to, and in accordance with, the
definition of EBITDA;
(iv) no Default or Event of Default shall have occurred and be continuing both
before and immediately after giving effect to the acquisition;
(v) the Borrower shall deliver written notice of such proposed acquisition to
the Administrative Agent, which notice shall include the proposed closing date of
the acquisition, not less than ten (10) Business Days prior to such proposed closing
date;
(vi) to the extent requested by the Administrative Agent in connection with any
proposed acquisition for which the aggregate total consideration (including, without
limitation, any earn-outs valued in accordance with GAAP) exceeds $50,000,000, the
Borrower shall deliver to the Administrative Agent copies of (A) the Permitted
Acquisition Documents and (B) the Permitted Acquisition Diligence Information within
a reasonable period of time before or after the proposed closing date of such
acquisition;
(vii) if the Person to be acquired will be a Domestic Subsidiary of the
Borrower and a Restricted Subsidiary, such Person shall become a Guarantor, pursuant
to Section 9.9(a); and
(viii) if, at the time of the consummation of any such acquisition, the
Leverage Ratio, calculated on a pro forma basis after giving effect
to the consummation of such acquisition pursuant to, and in accordance with, the
definition of EBITDA and to all outstanding Funded Debt as of the date of applicable
acquisition (including any Funded Debt incurred in connection with such
acquisition), equals or exceeds 1.75 to 1.00, as demonstrated in a compliance
certificate in form and substance satisfactory to the Administrative Agent and
executed by a Responsible Officer of the Borrower, the aggregate consideration
(including, without limitation, any earn-outs valued in accordance with GAAP) paid
in connection with all Permitted Acquisitions during the term of this Agreement
shall not exceed $200,000,000 (it being understood and agreed that any consideration
paid in connection with any prior Permitted Acquisitions shall be included in
determining the utilization of such amount);
For the purposes of Sections 11.3(e), (f) and (g), the amount of any
loan, advance, extension of credit or investment made by the Borrower or any of its Restricted
Subsidiaries
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(collectively, the Investors) in any other Person or Persons (collectively, the
Recipient) outstanding at any time shall be:
(i) with respect to any loans, advances or extensions of credit made by any
Investor to any Recipient, an amount equal to (A) the principal amount of loans,
advances and extensions of credit made to the Recipient, directly or indirectly, by
the Investors less (B) the amount of any repayments of principal of such loans,
advances or extensions of credit made, directly or indirectly, by the Recipient to
the Investors; and
(ii) with respect to any investment made by any Investor in any Recipient, (A)
the amount of capital contributions made in the Recipient, directly or indirectly,
by the Investors (without any adjustment for any increase or decrease in value, or
any write-up, write-down or write-off with regard to such investment to the extent
that such increase or decrease in value or write-up, write-down or write-off does
not require any additional capital contribution) less (B) the amount of any
dividends and distributions made by such Recipient (directly or indirectly) to such
Investor or Investors.
SECTION 11.4. Limitations on Mergers and Liquidation. Merge, consolidate or enter into
any similar combination with any other Person or liquidate, wind-up or dissolve itself (or suffer
any liquidation or dissolution), except that so long as no Default or Event of Default exists both
before and after giving effect to such transaction:
(a) any Wholly Owned Subsidiary of the Borrower may merge with the Borrower or any other
Wholly Owned Restricted Subsidiary of the Borrower; provided that (i) in any merger
involving the Borrower, the Borrower shall be the surviving entity and (ii) in any merger involving
a Guarantor (that does not also involve the Borrower), a Guarantor shall be the surviving entity;
(b) any Wholly Owned Subsidiary of the Borrower may merge with or into the Person such Wholly
Owned Subsidiary was formed to acquire in connection with a Permitted Acquisition (and, in the case
of any merger involving a Guarantor, the Guarantor shall be the surviving Person or such surviving
Person is or immediately becomes a Guarantor); and
(c) any Wholly Owned Subsidiary of the Borrower may wind-up or dissolve into the Borrower or
any Wholly Owned Guarantor.
For the avoidance of doubt, any Restricted Subsidiary of the Borrower may, in accordance with
all applicable laws and upon notice to the Administrative Agent, convert into a different legal
form; provided that in the case of any such conversion of a Guarantor into a different legal form,
the applicable Guaranty remains in full force and effect after such conversion, all representations
and warranties of such Guarantor under the Loan Documents shall remain true and correct on the date
of such conversion and the Administrative Agent shall have received all documentation reasonably
requested by it in connection with such conversion (including, without limitation, an agreement, in
form and substance satisfactory to the
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Administrative Agent reaffirming such Guarantors obligations under the Guaranty and documents
of the type referred to in Section 6.1(b)(ii) and (iii) of this Agreement).
SECTION 11.5. Limitations on Sale of Assets. Convey, sell, lease, assign, transfer or
otherwise dispose of any of its property, business or assets (including, without limitation, the
sale of any receivables and leasehold interests and any sale-leaseback or similar transaction),
whether now owned or hereafter acquired except:
(a) the sale or other disposition of (i) inventory and (ii) equipment, in each of cases (i)
and (ii), in the ordinary course of business;
(b) the sale of any property or assets pursuant to a Permitted Sale-Leaseback Transaction;
(c) the sale or other disposition of obsolete assets no longer used or usable in the business
of the Borrower or any of its Subsidiaries;
(d) the transfer of assets to the Borrower or any Wholly Owned Restricted Subsidiary of the
Borrower pursuant to a transaction not otherwise prohibited by the Loan Documents;
(e) the sale or discount without recourse of accounts receivable arising in the ordinary
course of business in connection with the compromise or collection thereof;
(f) the disposition of any Hedging Agreement or any commodity swap or other agreement or
arrangement related to commodity prices;
(g) the sale of restaurant units owned by the Borrower or any Restricted Subsidiary to
franchisees;
(h) leases, subleases, licenses and rights-of-use granted to others not interfering in any
material respect with the ordinary conduct of business of the Borrower or any of its Restricted
Subsidiaries;
(i) to the extent constituting asset dispositions, any Lien permitted by Section 11.2,
any investment or other transaction permitted by Section 11.3, any merger or other
transaction permitted by Section 11.4 and any Distribution permitted by Section
11.6; and
(j) the sale or other disposition of assets by the Borrower or any Restricted Subsidiary not
otherwise permitted under this Section 11.5; provided that (i) as of the time of
such sale or other disposition. no Default or Event of Default shall be continuing or would result
therefrom, (ii) any such sale shall be for fair value for cash consideration only and (iii) the
Borrower shall have complied with the requirements of Section 4.4(b).
SECTION 11.6. Limitations on Dividends and Distributions. Declare or pay any dividends
upon any of its Capital Stock; purchase, redeem, retire or otherwise acquire, directly or
indirectly, any shares of its Capital Stock, or make any distribution of cash, property or assets
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among the holders of shares of its Capital Stock (all such payments or other distributions,
Distributions); provided that:
(a) the Borrower or any Restricted Subsidiary may pay dividends in shares of its own Qualified
Capital Stock;
(b) the Borrower may (i) pay cash dividends on the Capital Stock of the Borrower and (ii)
acquire Capital Stock of the Borrower; provided that:
(A) no Default or Event of Default shall have occurred and be continuing both
before and immediately after giving effect to such payment or acquisition;
(B) the Borrower and its Subsidiaries shall be in pro forma compliance with the
covenants contained in Sections 10.1 and 10.2 both before and
immediately after giving effect to such payment or acquisition; and
(C) the aggregate amount of all such payments of cash dividends and
acquisitions of Capital Stock during the term of this Agreement shall not exceed the
sum of (1) $200,000,000 plus (2) so long as, at the time of any proposed
payment of cash dividends or acquisition of Capital Stock, the Leverage Ratio,
calculated on a pro forma basis after giving effect to all
outstanding Funded Debt as of the date of the applicable payment of cash dividends
or acquisition of Capital Stock and any Funded Debt incurred in connection
therewith, is less than 1.75 to 1.00, as demonstrated in a compliance certificate in
form and substance satisfactory to the Administrative Agent and executed by a
Responsible Officer of the Borrower, an additional aggregate amount not to exceed
$300,000,000 (it being understood and agreed that any payment of cash dividends or
acquisition of Capital Stock previously made pursuant to this clause (2) shall be
included in determining the utilization of the additional amount specified in this
clause (2)); and
(c) any Restricted Subsidiary may pay cash dividends to the holders of its Capital Stock;
provided that in the case of any cash dividend paid by a Restricted Subsidiary that is not
a Wholly Owned Subsidiary, (i) such dividend may be paid only if such dividend is paid on a ratable
basis to the holders of such Capital Stock in accordance with their respective ownership
percentages in such Restricted Subsidiary and (ii) such dividend, to the extent payable to any
Person other than the Borrower or any Restricted Subsidiary of the Borrower, shall reduce the
aggregate amount of cash dividends and acquisitions of Capital Stock permitted under Section
11.6(b) as described therein.
SECTION 11.7. Limitations on Exchange and Issuance of Capital Stock. Issue, sell or
otherwise dispose of any class or series of Disqualified Capital Stock unless permitted as Debt
pursuant to, and in accordance with the terms and conditions of, Section 11.1.
SECTION 11.8. Transactions with Affiliates. Except for transactions permitted by
Sections 11.3, 11.6 and 11.7, directly or indirectly (a) make any loan or
advance to, or purchase or assume any note or other obligation to or from, any of its officers,
directors, shareholders or
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other Affiliates, or to or from any member of the immediate family of any of its officers,
directors, shareholders or other Affiliates, or subcontract any operations to any of its Affiliates
or (b) enter into, or be a party to, any other transaction not described in clause (a) above with
any of its Affiliates, except pursuant to the reasonable requirements of its business and upon fair
and reasonable terms that are no less favorable to it than it would obtain in a comparable
arms-length transaction with a Person not its Affiliate.
SECTION 11.9. Certain Accounting Changes; Organizational Documents.
(a) Change its Fiscal Year end, or make any change in its accounting treatment and reporting
practices except as required by GAAP.
(b) Amend, modify or change its articles of incorporation (or corporate charter or other
similar organizational documents) in any manner adverse in any respect to the rights or interests
of the Lenders or amend, modify or change its bylaws (or other similar documents) in any manner
adverse in any respect to the rights or interests of the Lenders.
SECTION 11.10. Amendments; Payments and Prepayments of Subordinated Debt and Permitted
Senior Notes.
(a) Amend or modify (or permit the modification or amendment of) any of the subordination
terms or provisions of any Subordinated Debt, or, after the incurrence thereof pursuant to, and in
accordance with, the terms of this Agreement, any Permitted Senior Notes, in each case in any
manner adverse to the rights and interests of the Lenders.
(b) Amend or modify (or permit the modification or amendment of) any of the other terms or
provisions of any Subordinated Debt (other than subordination provisions, the amendments or
modifications to which shall be expressly governed by subsection (a) above) in any manner
materially adverse to the rights and interests of the Lenders.
(c) Cancel or forgive, make any voluntary or optional payment or prepayment on, or purchase,
redeem, defease or acquire or retire for value (including, without limitation, by way of depositing
with any trustee with respect thereto money or securities before due for the purpose of paying when
due) any Subordinated Debt or, after the incurrence thereof pursuant to, and in accordance, with
the terms of this Agreement, any Permitted Senior Notes, except:
(i) refinancings, refundings, renewals, extensions or exchanges of Permitted
Senior Notes permitted by Section 11.1(o); and
(ii) the payment of interest, expenses and indemnities in respect of
Subordinated Debt permitted hereunder (other than any such payments that are
prohibited by the subordination provisions thereof) or the Permitted Senior Notes;
and
(iii) in the case of offers to purchase such Debt upon a change of control or
asset sale (subject, in each case, to the rights of the holders of the Obligations
as set forth in the definitive documentation for such Debt).
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SECTION 11.11. Restrictive Agreements.
(a) Enter into any Debt or any other contractual obligation which contains any negative pledge
on any of its properties or assets (whether now owned or hereafter acquired) that restricts or
limits its ability to create, incur or assume Liens at any time securing the Obligations or that
requires the grant of any security for such obligation if security is given for the Obligations,
other than (i) any such restriction or encumbrance existing under or by reason of Applicable Law;
(ii) customary restrictions on Liens upon the property subject to a Capital Lease set forth in such
Capital Lease (provided that such restrictions do not apply to any property other than the
property financed by such Capital Lease and the proceeds thereof); (iii) to the extent that any
Permitted Senior Notes or Subordinated Debt are incurred pursuant to, and in accordance, with the
terms of this Agreement, customary restrictions on the creation or assumption of Liens contained in
such Permitted Senior Notes or in the definitive documentation governing such Subordinated Debt;
(iv) customary restrictions with respect to a Subsidiary of the Borrower pursuant to an agreement
that has been entered into for the sale or disposition (not otherwise prohibited by the Loan
Documents) of all or substantially all of the Capital Stock in, or assets of, such Subsidiary of
the Borrower; (v) customary non-assignment provisions of any contract or lease (provided
that such provisions are limited to assets consisting of such contract or lease itself and include
no other assets); (vi) provisions imposed under or in connection with the granting of Liens
permitted under Section 11.2(p) under or in connection with commodity swaps or other
agreements or arrangements related to commodity prices provided that such restrictions do not apply
to any property other than property granted to secure such obligations; and (vii) restrictions
limited solely to cash or other deposits imposed under contracts entered into in the ordinary
course of business; or
(b) Enter into or permit to exist any agreement which impairs or limits the ability of any
Restricted Subsidiary of the Borrower to pay dividends to the Borrower other than (i) any such
impairment or limitation existing under or by reason of the Loan Documents or Applicable Law; (ii)
obligations under any provision of any agreement or other instrument governing Debt that are
binding on a Person that becomes a Subsidiary of the Borrower, so long as (A) such obligations are
not entered into in contemplation of such Person becoming a Subsidiary, (B) such Debt otherwise
permitted to be incurred or assumed under this Agreement and (C) such obligations are not
applicable to any Person, or the properties or assets of any Person, other than the Person that
becomes a Subsidiary of the Borrower; (iii) customary net worth provisions contained in leases and
other agreements entered into by a Restricted Subsidiary of the Borrower in the ordinary course of
business; (iv) restrictions on cash or other deposits imposed under contracts entered into in the
ordinary course of business; and (v) restrictions or encumbrances that only affect a Restricted
Subsidiary that is a Guarantor.
SECTION 11.12. Nature of Business. Substantively alter in any material respect the
character or conduct of the business conducted by the Borrower and its Restricted Subsidiaries as
of the Closing Date.
SECTION 11.13. Impairment of Security Interests. Take or omit to take any action,
which could have the result of materially impairing the security interests in favor of the
Administrative Agent with respect to the Collateral or grant to any Person (other than the
Administrative Agent for the benefit of itself and the Secured Parties pursuant to the Security
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Documents) any ownership or security interest whatsoever in the Collateral, except for Liens
permitted under Section 11.2 and asset disposition permitted under Section 11.5.
SECTION 11.14. Purchases of Restaurants from Franchisees. Purchase any restaurants
owned by franchisees; provided that the Borrower and its Restricted Subsidiaries may make
such purchases so long as (a) no Default or Event of Default shall have occurred and be continuing
after giving effect to any such purchase and any Debt incurred in connection therewith, (b) the
Borrower shall be in pro forma compliance with the covenants set forth in
Sections 10.1 and 10.2 after giving effect to any Debt incurred in connection with
any such purchase and (c) if, at the time of the consummation of any such purchase, the Leverage
Ratio, calculated at such time on a pro forma basis to give effect to all
outstanding Funded Debt as of the date of such purchase (including any Funded Debt incurred in
connection with such purchase), equals or exceeds 1.75 to 1.00, as demonstrated in a compliance
certificate in form and substance satisfactory to the Administrative Agent and executed by a
Responsible Officer of the Borrower, the aggregate consideration paid in connection with all such
purchases during the term of this Agreement shall not exceed $100,000,000 (it being understood and
agreed that any consideration paid in connection with any prior such purchases shall be included in
determining the utilization of such amount); provided that, for purposes of calculating the
amount of consideration paid under this clause (c) in connection with the purchase of restaurants
owned by franchisees (each such restaurant, a Purchased Franchisee Restaurant), such
amount shall be reduced by the amount of Net Cash Proceeds received by the Borrower or any of its
Restricted Subsidiaries from any subsequent permitted sale by the Borrower or any of its Restricted
Subsidiaries of any such Purchased Franchisee Restaurant so long as such Net Cash Proceeds are
received within twelve (12) months of the date of the original purchase by the Borrower or any of
its Restricted Subsidiaries of such Purchased Franchisee Restaurant.
ARTICLE XII
DEFAULT AND REMEDIES
SECTION 12.1. Events of Default. Each of the following shall constitute an Event of
Default, whatever the reason for such event and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment or order of any court or any order, rule
or regulation of any Governmental Authority or otherwise:
(a) Default in Payment of Principal of Loans and Reimbursement Obligations. The
Borrower shall default in any payment of principal of any Loan or Reimbursement Obligation when and
as due (whether at maturity, by reason of acceleration or otherwise).
(b) Other Payment Default. The Borrower or any other Credit Party shall default in the
payment when and as due (whether at maturity, by reason of acceleration or otherwise) of interest
on any Loan or Reimbursement Obligation or the payment of any other Obligation, and such default
shall continue for a period of three (3) Business Days.
(c) Misrepresentation. Any representation, warranty, certification or statement of
fact made or deemed made by or on behalf of the Borrower or any Subsidiary under this Agreement,
any other Loan Document or in any document delivered in connection herewith or therewith that is
subject to materiality or Material Adverse Effect qualifications, shall be
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incorrect or misleading in any respect when made or deemed made, or any representation,
warranty, certification or statement of fact made or deemed made by or on behalf of the Borrower or
any Subsidiary under this Agreement, any other Loan Document, or in any document delivered in
connection herewith or therewith that is not subject to materiality or Material Adverse Effect
qualifications, shall be incorrect or misleading in any material respect when made or deemed made.
(d) Default in Performance of Certain Covenants.
(i) The Borrower or any Subsidiary thereof shall default in the
performance or observance of any covenant or agreement contained in Sections
8.1, 8.2, 8.5(e)(i), 9.9, 9.10, 9.11,
9.12(b) or Articles X or XI (other than, with respect to
Section 11.11(a), as specifically set forth in clause (ii) below) of this
Agreement (subject in the case of Sections 8.1, 8.2 and
8.5(e)(i) to the provisions of Section 8.6).
(ii) The Borrower or any Restricted Subsidiary thereof shall default in
the performance or observance of any covenant or agreement contained in Section
11.11(a), and such default shall continue for a period of thirty (30) days
after any Responsible Officer of the Borrower or any of its Restricted Subsidiaries
becomes aware of such default.
(e) Default in Performance of Other Covenants and Conditions. The Borrower or any
Subsidiary thereof shall default in the performance or observance of any term, covenant, condition
or agreement contained in this Agreement (other than as specifically provided for otherwise in this
Section 12.1) or any other Loan Document and such default shall continue for a period of
thirty (30) days after written notice thereof has been given to the Borrower by the Administrative
Agent.
(f) Debt Cross-Default. The Borrower or any of its Subsidiaries shall (i) default in
the payment of any Debt (other than the Obligations) the aggregate outstanding amount of which Debt
is in excess of $10,000,000 beyond the period of grace, if any, provided in the instrument or
agreement under which such Debt was created, or (ii) default in the observance or performance of
any other agreement or condition relating to any Debt (other than the Loans or any Reimbursement
Obligation) the aggregate outstanding amount of which Debt is in excess of $10,000,000 or contained
in any instrument or agreement evidencing, securing or relating thereto or any other event shall
occur or condition exist, the effect of which default or other event or condition is to cause, or
to permit the holder or holders of such Debt (or a trustee or agent on behalf of such holder or
holders) to cause, with the giving of notice if required, any such Debt to become due prior to its
stated maturity (any applicable grace period having expired).
(g) Change in Control. Any person or group of persons (within the meaning of Section
13(d) of the Securities Exchange Act of 1934, as amended) shall, directly or indirectly, obtain
beneficial ownership or control in one or more series of transactions of more than thirty percent
(30%) of the common stock or thirty percent (30%) of the voting power of the Borrower entitled to
vote in the election of members of the board of directors of the Borrower or there
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shall have occurred under any indenture or other instrument evidencing the Permitted Senior
Notes (if any) or any other Debt in excess of $10,000,000 any change in control or equivalent
term (as defined in such indenture or other evidence of Debt) obligating the Borrower to
repurchase, redeem or repay all or any part of the Debt or Capital Stock provided for therein (any
such event, a Change in Control).
(h) Voluntary Bankruptcy Proceeding. The Borrower or any Restricted Subsidiary thereof
shall (i) commence a voluntary case under the federal bankruptcy laws (as now or hereafter in
effect), (ii) file a petition seeking to take advantage of any other laws, domestic or foreign,
relating to bankruptcy, insolvency, reorganization, winding up or composition for adjustment of
debts, (iii) consent to or fail to contest in a timely and appropriate manner any petition filed
against it in an involuntary case under such bankruptcy laws or other laws, (iv) apply for or
consent to, or fail to contest in a timely and appropriate manner, the appointment of, or the
taking of possession by, a receiver, custodian, trustee, or liquidator of itself or of a
substantial part of its property, domestic or foreign, (v) admit in writing its inability to pay
its debts as they become due, (vi) make a general assignment for the benefit of creditors, or (vii)
take any corporate action for the purpose of authorizing any of the foregoing.
(i) Involuntary Bankruptcy Proceeding. A case or other proceeding shall be commenced
against the Borrower or any Restricted Subsidiary thereof in any court of competent jurisdiction
seeking (i) relief under the federal bankruptcy laws (as now or hereafter in effect) or under any
other laws, domestic or foreign, relating to bankruptcy, insolvency, reorganization, winding up or
adjustment of debts, or (ii) the appointment of a trustee, receiver, custodian, liquidator or the
like for the Borrower or any Subsidiary thereof or for all or any substantial part of their
respective assets, domestic or foreign, and such case or proceeding shall continue without
dismissal or stay for a period of sixty (60) consecutive days, or an order granting the relief
requested in such case or proceeding (including, but not limited to, an order for relief under such
federal bankruptcy laws) shall be entered.
(j) Failure of Agreements. Any provision of this Agreement or any provision of any
other Loan Document shall for any reason cease to be valid and binding on the Borrower or
Subsidiary party thereto or any such Person or their representative shall so state in writing, or
any Loan Document shall for any reason cease to create a valid and perfected first priority Lien
on, or security interest in, any of the collateral purported to be covered thereby, in each case
other than in accordance with the express terms hereof or thereof.
(k) ERISA Events. The occurrence of any of the following events: (i) except where such
failure could not, individually or in the aggregate, reasonably be expected to have a Material
Adverse Effect, the Borrower or any ERISA Affiliate fails to make full payment when due of all
amounts which, under the provisions of any Pension Plan or Section 412 of the Code, the Borrower or
any ERISA Affiliate is required to pay as contributions thereto, (ii) an accumulated funding
deficiency (as defined in Section 412 of the Code or Section 302 of ERISA) in excess of $2,000,000
occurs or exists, whether or not waived, with respect to any Pension Plan, (iii) a Termination
Event or (iv) the Borrower or any ERISA Affiliate as employers under one or more Multiemployer
Plans makes a complete or partial withdrawal from any such Multiemployer Plan and the plan sponsor
of such Multiemployer Plans notifies
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such withdrawing employer that such employer has incurred a withdrawal liability requiring
payments in an amount exceeding $2,000,000.
(l) Judgment. A judgment or order for the payment of money which causes the aggregate
amount of all such judgments or orders (net of any amounts covered by independent third party
insurance as to which the relevant insurance company does not dispute coverage) to exceed
$10,000,000 in any Fiscal Year shall be entered against the Borrower or any of its Restricted
Subsidiaries by any court and such judgment or order shall continue without discharge or stay for a
period of thirty (30) days.
(m) Environmental. Any one or more Environmental Claims shall have been asserted
against the Borrower or any of its Subsidiaries; the Borrower and its Subsidiaries would be
reasonably likely to incur liability as a result thereof and such liability would be reasonably
likely, individually or in the aggregate, to have a Material Adverse Effect.
SECTION 12.2. Remedies. Upon the occurrence of an Event of Default, with the consent
of the Required Lenders, the Administrative Agent may, or upon the request of the Required Lenders,
the Administrative Agent shall, by notice to the Borrower:
(a) Acceleration; Termination of Facilities. Terminate the Revolving Credit Commitment
and declare the principal of and interest on the Loans and the Reimbursement Obligations at the
time outstanding, and all other amounts owed to the Lenders and to the Administrative Agent under
this Agreement or any of the other Loan Documents (including, without limitation, all L/C
Obligations, whether or not the beneficiaries of the then outstanding Letters of Credit shall have
presented or shall be entitled to present the documents required thereunder) and all other
Obligations (other than Hedging Obligations), to be forthwith due and payable, whereupon the same
shall immediately become due and payable without presentment, demand, protest or other notice of
any kind, all of which are expressly waived, anything in this Agreement or the other Loan Documents
to the contrary notwithstanding, and terminate the Credit Facility and any right of the Borrower to
request borrowings or Letters of Credit thereunder; provided, that upon the occurrence of
an Event of Default specified in Section 12.1(h) or (i), the Credit Facility shall
be automatically terminated and all Obligations (other than Hedging Obligations) shall
automatically become due and payable without presentment, demand, protest or other notice of any
kind, all of which are expressly waived, anything in this Agreement or in any other Loan Document
to the contrary notwithstanding.
(b) Letters of Credit. With respect to all Letters of Credit with respect to which any
amount shall remain undrawn and unexpired at the time of an acceleration pursuant to the preceding
paragraph, the Borrower shall at such time deposit in a cash collateral account opened by the
Administrative Agent an amount equal to the aggregate then undrawn and unexpired amount of such
Letters of Credit. Amounts held in such cash collateral account shall be applied by the
Administrative Agent to the payment of drafts drawn under such Letters of Credit, and the unused
portion thereof after all such Letters of Credit shall have expired or been fully drawn upon, if
any, shall be applied to repay the other Obligations on a pro rata basis. After all
such Letters of Credit shall have expired or been fully drawn upon, the Reimbursement Obligation
shall have been satisfied and all other Obligations shall have been paid in full, the balance, if
any, in such cash collateral account shall be returned to the Borrower.
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(c) Rights of Collection. Exercise on behalf of the Lenders all of its other rights
and remedies under this Agreement, the other Loan Documents and Applicable Law, in order to satisfy
all of the Borrowers Obligations.
(d) Other Rights. Exercise on behalf of the Secured Parties all of its other rights
and remedies under this Agreement, any other Loan Documents and Applicable Law, in order to satisfy
the Obligations.
SECTION 12.3. Rights and Remedies Cumulative; Non-Waiver; etc. The enumeration of the
rights and remedies of the Administrative Agent and the Lenders set forth in this Agreement is not
intended to be exhaustive and the exercise by the Administrative Agent and the Lenders of any right
or remedy shall not preclude the exercise of any other rights or remedies, all of which shall be
cumulative, and shall be in addition to any other right or remedy given hereunder or under the
other Loan Documents or that may now or hereafter exist at law or in equity or by suit or
otherwise. No delay or failure to take action on the part of the Administrative Agent or any Lender
in exercising any right, power or privilege shall operate as a waiver thereof, nor shall any single
or partial exercise of any such right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege or shall be construed to be a waiver
of any Event of Default. No course of dealing between the Borrower, the Administrative Agent and
the Lenders or their respective agents or employees shall be effective to change, modify or
discharge any provision of this Agreement or any of the other Loan Documents or to constitute a
waiver of any Event of Default.
SECTION 12.4. Crediting of Payments and Proceeds. In the event that the Obligations
have been accelerated pursuant to Section 12.2 or the Administrative Agent or any Lender
has exercised any remedy set forth in this Agreement or any other Loan Document, all payments
received by the Lenders upon the Obligations and all net proceeds from the enforcement of the
Obligations shall be applied:
First, to payment of that portion of the Obligations constituting fees, indemnities,
expenses and other amounts, including attorney fees, payable to the Administrative Agent in its
capacity as such, the Swingline Lender in its capacity as such and the Issuing Lender in its
capacity as such (ratably among the Administrative Agent, the Swingline Lender and the Issuing
Lender in proportion to the respective amounts described in this clause First payable to
them);
Second, to payment of that portion of the Obligations constituting fees, indemnities
and other amounts (other than principal and interest) payable to the Lenders, including attorney
fees (ratably among the Lenders in proportion to the respective amounts described in this clause
Second payable to them);
Third, to payment of that portion of the Obligations constituting accrued and unpaid
interest on the Loans and Reimbursement Obligations and any Hedging Obligations (including any
termination payments and any accrued and unpaid interest thereon) (ratably among the Lenders in
proportion to the respective amounts described in this clause Third payable to them);
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Fourth, to payment of that portion of the Obligations constituting unpaid principal of
the Loans and Reimbursement Obligations (ratably among the Lenders in proportion to the respective
amounts described in this clause Fourth held by them);
Fifth, to the Administrative Agent for the account of the Issuing Lender, to cash
collateralize any L/C Obligations then outstanding; and
Last, the balance, if any, after all of the Obligations have been indefeasibly paid in
full, to the Borrower or as otherwise required by Applicable Law.
SECTION 12.5. Administrative Agent May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to any Credit Party, the Administrative Agent
(irrespective of whether the principal of any Loan or L/C Obligation shall then be due and payable
as herein expressed or by declaration or otherwise and irrespective of whether the Administrative
Agent shall have made any demand on the Borrower) shall be entitled and empowered, by intervention
in such proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal and interest owing and
unpaid in respect of the Loans, L/C Obligations and all other Obligations that are owing and unpaid
and to file such other documents as may be necessary or advisable in order to have the claims of
the Lenders and the Administrative Agent (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Lenders and the Administrative Agent and their
respective agents and counsel and all other amounts due the Lenders and the Administrative Agent
under Sections 3.3, 5.3 and 14.2) allowed in such judicial proceeding; and
(b) to collect and receive any monies or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Lender to make such payments to the
Administrative Agent and, in the event that the Administrative Agent shall consent to the making of
such payments directly to the Lenders, to pay to the Administrative Agent any amount due for the
reasonable compensation, expenses, disbursements and advances of the Administrative Agent and its
agents and counsel, and any other amounts due the Administrative Agent under Sections 3.3,
5.3 and 14.2.
Nothing contained herein shall be deemed to authorize the Administrative Agent to authorize or
consent to or accept or adopt on behalf of any Lender any plan of reorganization, arrangement,
adjustment or composition affecting the Obligations or the rights of any Lender or to authorize the
Administrative Agent to vote in respect of the claim of any Lender in any such proceeding.
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ARTICLE XIII
THE ADMINISTRATIVE AGENT
SECTION 13.1. Appointment and Authority. Each of the Lenders and the Issuing Lender
hereby irrevocably designates and appoints Wells Fargo to act on its behalf as the Administrative
Agent hereunder and under the other Loan Documents and authorizes the Administrative Agent to take
such actions on its behalf and to exercise such powers as are delegated to the Administrative Agent
by the terms hereof or thereof, together with such actions and powers as are reasonably incidental
thereto. The provisions of this Article are solely for the benefit of the Administrative Agent, the
Lenders and the Issuing Lender, and neither the Borrower nor any Subsidiary thereof shall have
rights as a third party beneficiary of any of such provisions.
The Administrative Agent shall also act as the collateral agent under the Loan
Documents, and each of the Lenders (including in its capacity as counterparty to a Hedging
Agreement) and the Issuing Lender hereby irrevocably appoints and authorizes the Administrative
Agent to act as the agent of such Lender and the Issuing Lender for purposes of acquiring, holding
and enforcing any and all Liens on Collateral granted by any of the Credit Party to secure any of
the Obligations, together with such powers and discretion as are reasonably incidental thereto. In
this connection, the Administrative Agent, as collateral agent, and any co-agents, sub-agents and
attorneys-in-fact appointed by the Administrative Agent pursuant to Article XIII for
purposes of holding or enforcing any Lien on the Collateral (or any portion thereof) granted under
the Security Documents, or for exercising any rights and remedies thereunder at the direction of
the Administrative Agent), shall be entitled to the benefits of all provisions of this Article
XIII and Article XIV (including Section 14.2, as though such co-agents,
sub-agents and attorneys-in-fact were the collateral agent under the Loan Documents) as if set
forth in full herein with respect thereto.
SECTION 13.2. Rights as a Lender. The Person serving as the Administrative Agent
hereunder shall have the same rights and powers in its capacity as a Lender as any other Lender and
may exercise the same as though it were not the Administrative Agent and the term Lender or
Lenders shall, unless otherwise expressly indicated or unless the context otherwise requires,
include the Person serving as the Administrative Agent hereunder in its individual capacity. Such
Person and its Affiliates may accept deposits from, lend money to, act as the financial advisor or
in any other advisory capacity for and generally engage in any kind of business with the Borrower
or any Subsidiary or other Affiliate thereof as if such Person were not the Administrative Agent
hereunder and without any duty to account therefor to the Lenders.
SECTION 13.3. Exculpatory Provisions. The Administrative Agent shall not have any
duties or obligations except those expressly set forth herein and in the other Loan Documents.
Without limiting the generality of the foregoing, the Administrative Agent:
(a) shall not be subject to any fiduciary or other implied duties, regardless of whether a
Default has occurred and is continuing;
(b) shall not have any duty to take any discretionary action or exercise any discretionary
powers, except discretionary rights and powers expressly contemplated hereby or by the other Loan
Documents that the Administrative Agent is required to exercise as directed in writing by the
Required Lenders (or such other number or percentage of the Lenders as shall
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be expressly provided for herein or in the other Loan Documents), provided that the
Administrative Agent shall not be required to take any action that, in its opinion or the opinion
of its counsel, may expose the Administrative Agent to liability or that is contrary to any Loan
Document or Applicable Law; and
(c) shall not, except as expressly set forth herein and in the other Loan Documents, have any
duty to disclose, and shall not be liable for the failure to disclose, any information relating to
the Borrower or any of its Affiliates that is communicated to or obtained by the Person serving as
the Administrative Agent or any of its Affiliates in any capacity.
The Administrative Agent shall not be liable for any action taken or not taken by it (i) with
the consent or at the request of the Required Lenders (or such other number or percentage of the
Lenders as shall be necessary, or as the Administrative Agent shall believe in good faith shall be
necessary, under the circumstances as provided in Section 14.11 and Section 12.2)
or (ii) in the absence of its own gross negligence or willful misconduct as determined by a court
of competent jurisdiction by final nonappealable judgment. The Administrative Agent shall be deemed
not to have knowledge of any Default unless and until notice describing such Default is given to
the Administrative Agent by the Borrower, a Lender or the Issuing Lender.
The Administrative Agent shall not be responsible for or have any duty to ascertain or inquire
into (i) any statement, warranty or representation made in or in connection with this Agreement or
any other Loan Document, (ii) the contents of any certificate, report or other document delivered
hereunder or thereunder or in connection herewith or therewith, (iii) the performance or observance
of any of the covenants, agreements or other terms or conditions set forth herein or therein or the
occurrence of any Default, (iv) the validity, enforceability, effectiveness or genuineness of this
Agreement, any other Loan Document or any other agreement, instrument or document or (v) the
satisfaction of any condition set forth in Article VI or elsewhere herein, other than to
confirm receipt of items expressly required to be delivered to the Administrative Agent.
SECTION 13.4. Reliance by the Administrative Agent. The Administrative Agent shall be
entitled to rely upon, and shall not incur any liability for relying upon, any notice, request,
certificate, consent, statement, instrument, document or other writing (including any electronic
message, Internet or intranet website posting or other distribution) believed by it to be genuine
and to have been signed, sent or otherwise authenticated by the proper Person. The Administrative
Agent also may rely upon any statement made to it orally or by telephone and believed by it to have
been made by the proper Person, and shall not incur any liability for relying thereon. In
determining compliance with any condition hereunder to the making of a Loan, or the issuance of a
Letter of Credit, that by its terms must be fulfilled to the satisfaction of a Lender or the
Issuing Lender, the Administrative Agent may presume that such condition is satisfactory to such
Lender or the Issuing Lender unless the Administrative Agent shall have received notice to the
contrary from such Lender or the Issuing Lender prior to the making of such Loan or the issuance of
such Letter of Credit. The Administrative Agent may consult with legal counsel (who may be counsel
for the Borrower), independent accountants and other experts selected by it, and shall not be
liable for any action taken or not taken by it in accordance with the advice of any such counsel,
accountants or experts.
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SECTION 13.5. Delegation of Duties. The Administrative Agent may perform any and all
of its duties and exercise its rights and powers hereunder or under any other Loan Document by or
through any one or more sub-agents appointed by the Administrative Agent. The Administrative Agent
and any such sub-agent may perform any and all of its duties and exercise its rights and powers by
or through their respective Related Parties. The exculpatory provisions of this Article shall apply
to any such sub-agent and to the Related Parties of the Administrative Agent and any such
sub-agent, and shall apply to their respective activities in connection with the syndication of the
credit facilities provided for herein as well as activities as Administrative Agent.
SECTION 13.6. Resignation of Administrative Agent.
(a) The Administrative Agent may at any time give notice of its resignation to the Lenders,
the Issuing Lender and the Borrower. Upon receipt of any such notice of resignation, the Required
Lenders shall have the right, in consultation with the Borrower, to appoint a successor, which
shall be a bank with an office in the United States, or an Affiliate of any such bank with an
office in the United States. If no such successor shall have been so appointed by the Required
Lenders and shall have accepted such appointment within 30 days after the retiring Administrative
Agent gives notice of its resignation, then the retiring Administrative Agent may on behalf of the
Lenders and the Issuing Lender, appoint a successor Administrative Agent meeting the qualifications
set forth above provided that if the Administrative Agent shall notify the Borrower and the Lenders
that no qualifying Person has accepted such appointment, then such resignation shall nonetheless
become effective in accordance with such notice and (i) the retiring Administrative Agent shall be
discharged from its duties and obligations hereunder and under the other Loan Documents (except
that in the case of any collateral security held by the Administrative Agent on behalf of the
Lenders or the Issuing Lender under any of the Loan Documents, the retiring Administrative Agent
shall continue to hold such collateral security until such time as a successor Administrative Agent
is appointed) and (ii) all payments, communications and determinations provided to be made by, to
or through the Administrative Agent shall instead be made by or to each Lender and the Issuing
Lender directly, until such time as the Required Lenders appoint a successor Administrative Agent
as provided for above in this paragraph. Upon the acceptance of a successors appointment as
Administrative Agent hereunder, such successor shall succeed to and become vested with all of the
rights, powers, privileges and duties of the retiring (or retired) Administrative Agent, and the
retiring Administrative Agent shall be discharged from all of its duties and obligations hereunder
or under the other Loan Documents (if not already discharged therefrom as provided above in this
paragraph). The fees payable by the Borrower to a successor Administrative Agent shall be the same
as those payable to its predecessor unless otherwise agreed between the Borrower and such
successor. After the retiring Administrative Agents resignation hereunder and under the other Loan
Documents, the provisions of this Article and Section 14.2 shall continue in effect for the
benefit of such retiring Administrative Agent, its sub-agents and their respective Related Parties
in respect of any actions taken or omitted to be taken by any of them while the retiring
Administrative Agent was acting as Administrative Agent.
(b) Any resignation by Wells Fargo as Administrative Agent pursuant to this Section shall also
constitute its resignation as Issuing Lender and Swingline Lender. Upon the
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acceptance of a successors appointment as Administrative Agent hereunder, (a) such successor
shall succeed to and become vested with all of the rights, powers, privileges and duties of the
retiring Issuing Lender and Swingline Lender, (b) the retiring Issuing Lender and Swingline Lender
shall be discharged from all of their respective duties and obligations hereunder or under the
other Loan Documents, and (c) the successor Issuing Lender shall issue letters of credit in
substitution for the Letters of Credit, if any, outstanding at the time of such succession or make
other arrangement satisfactory to the retiring Issuing Lender to effectively assume the obligations
of the retiring Issuing Lender with respect to such Letters of Credit.
SECTION 13.7. Non-Reliance on Administrative Agent and Other Lenders. Each Lender and
the Issuing Lender acknowledges that it has, independently and without reliance upon the
Administrative Agent or any other Lender or any of their Related Parties and based on such
documents and information as it has deemed appropriate, made its own credit analysis and decision
to enter into this Agreement. Each Lender and the Issuing Lender also acknowledges that it will,
independently and without reliance upon the Administrative Agent or any other Lender or any of
their Related Parties and based on such documents and information as it shall from time to time
deem appropriate, continue to make its own decisions in taking or not taking action under or based
upon this Agreement, any other Loan Document or any related agreement or any document furnished
hereunder or thereunder.
SECTION 13.8. No Other Duties, etc. Anything herein to the contrary notwithstanding,
none of the documentation agents, syndication agents, book managers or arrangers listed on the
cover page or signature pages hereof shall have any powers, duties or responsibilities under this
Agreement or any of the other Loan Documents, except in its capacity, as applicable, as the
Administrative Agent, a Lender or the Issuing Lender hereunder.
SECTION 13.9. Collateral and Guaranty Matters. The Lenders irrevocably authorize the
Administrative Agent, at its option and in its discretion (without notice to, or vote of consent
of, any counterparty to a Hedging Agreement that was a Lender or an Affiliate of a Lender at the
time such agreement was executed),
(a) to release any Lien on any Collateral granted to or held by the Administrative Agent, for
the ratable benefit of itself and the Secured Parties, under any Loan Document (i) upon repayment
of the outstanding principal of and all accrued interest on the Loans and Reimbursement
Obligations, payment of all outstanding indemnities, fees and expenses hereunder (other than those
Obligations which survive pursuant to Section 14.15), the termination of the Revolving
Credit Commitment and the expiration or termination of all Letters of Credit, (ii) that is sold or
to be sold as part of or in connection with any sale permitted hereunder or under any other Loan
Document, or (iii) subject to Section 14.11, if approved, authorized or ratified in writing
by the Required Lenders;
(b) to subordinate or release any Lien on any Collateral granted to or held by the
Administrative Agent under any Loan Document to the holder of any Permitted Lien; and
(c) to release any Guarantor from its obligations under the Guaranty Agreement, the Collateral
Agreement and any other Loan Documents if such Person ceases to be a Restricted Subsidiary as a
result of a transaction permitted hereunder.
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Without limiting the authority of the Administrative Agent under the Loan Documents, upon
request by the Administrative Agent at any time, the Required Lenders will confirm in writing the
Administrative Agents authority to release or subordinate its interest in particular types or
items of property, or to release any Guarantor from its obligations under the Guaranty Agreement
pursuant to this Section.
SECTION 13.10. Hedging Obligations. No Lender or Affiliate thereof party to a Hedging
Agreement, as applicable, that obtains the benefits of Section 12.4 or any Collateral by
virtue of the provisions hereof or of any Security Document shall have any right to notice of any
action or to consent to, direct or object to any action hereunder or under any other Loan Document
or otherwise in respect of the Collateral (including the release or impairment of any Collateral)
other than in its capacity as a Lender and, in such case, only to the extent expressly provided in
the Loan Documents.
ARTICLE XIV
MISCELLANEOUS
SECTION 14.1. Notices.
(a) Method of Communication. Except as otherwise provided in this Agreement, all
notices and communications hereunder shall be in writing (for purposes hereof, the term writing
shall include information in electronic format such as electronic mail and internet web pages), or
by telephone subsequently confirmed in writing. Any notice shall be effective if delivered by hand
delivery, telecopy, recognized overnight courier service or certified mail, return receipt
requested. Notices sent by hand or overnight courier service, or mailed by certified or registered
mail, shall be deemed to have been given when received; notices sent by telecopier shall be deemed
to have been given when sent (except that, if not given during normal business hours for the
recipient, shall be deemed to have been given at the opening of business on the next business day
for the recipient). A telephonic notice to the Administrative Agent as understood by the
Administrative Agent will be deemed to be the controlling and proper notice in the event of a
discrepancy with or failure to receive a confirming written notice. Notices delivered through
electronic communications to the extent provided in paragraph (c) below, shall be effective as
provided in said paragraph (c).
(b) Addresses for Notices. Notices to any party shall be sent to it at the following
addresses, or any other address as to which all the other parties are notified in writing.
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If to the Borrower: |
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Jack in the Box Inc. |
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9330 Balboa Avenue |
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San Diego, California 92123-1516 |
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Attention: Paul D. Melancon |
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Telephone No.: (858) 571-2248 |
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Telecopy No.: (858) 694-1533 |
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With copies to: |
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Gibson, Dunn & Crutcher LLP |
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333 South Grand Avenue |
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Los Angeles, California 90071-3197 |
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Attention: Linda L. Curtis |
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Telephone No.: (213) 229-7582 |
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Telecopy No.: (213) 229-7520 |
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If to Wells Fargo as |
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Wells Fargo Bank, National Association |
Administrative Agent: |
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MAC D 1109-019 |
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1525 West W.T. Harris Blvd. |
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Charlotte, North Carolina 28262 |
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Attention: Syndication Agency Services |
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Telephone No.: (704) 590-2730 |
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Telecopy No.: (704) 590-3481 |
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Electronic Mail: rufus.kearney@wellsfargo.com |
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With copies to: |
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Wells Fargo Bank, National Association |
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101 Federal Street, 20th Floor |
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Boston, Massachusetts 02110 |
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Attention: Meghan Hinds |
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Telephone No.: (617) 574-6337 |
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Telecopy No.: (617) 574-6370 |
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Electronic Mail: Meghan.Hinds@wellsfargo.com |
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If to any Lender: |
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To the address set forth in the Register |
(c) Electronic Communications. Notices and other communications to the Lenders and the
Issuing Lender hereunder may be delivered or furnished by electronic communication (including
e-mail and internet or intranet websites) pursuant to procedures approved by the Administrative
Agent, provided that the foregoing shall not apply to notices to any Lender or the Issuing
Lender pursuant to Article II if such Lender or the Issuing Lender, as applicable, has
notified the Administrative Agent that is incapable of receiving notices under such Article by
electronic communication. The Administrative Agent or the Borrower may, in its discretion, agree to
accept notices and other communications to it hereunder by electronic communications pursuant to
procedures approved by it, provided that approval of such procedures may be limited to
particular notices or communications.
Unless the Administrative Agent otherwise prescribes, (i) notices and other communications
sent to an e-mail address shall be deemed received upon the senders receipt of an acknowledgement
from the intended recipient (such as by the return receipt requested function, as available,
return e-mail or other written acknowledgement), provided that if such notice or other
communication is not sent during the normal business hours of the recipient, such notice or
communication shall be deemed to have been sent at the opening of business on the next business day
for the recipient, and (ii) notices or communications posted to an Internet or intranet website
shall be deemed received upon the deemed receipt by the intended recipient at its e-mail address as
described in the foregoing clause (i) of notification that such notice or communication is
available and identifying the website address therefor.
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(d) Administrative Agents Office. The Administrative Agent hereby designates its
office located at the address set forth above, or any subsequent office which shall have been
specified for such purpose by written notice to the Borrower and Lenders, as the Administrative
Agents Office referred to herein, to which payments due are to be made and at which Loans will be
disbursed and Letters of Credit requested.
(e) Change of Address, Etc. Any party hereto may change its address or telecopier
number for notices and other communications hereunder by notice to the other parties hereto.
SECTION 14.2. Expenses; Indemnity.
(a) Costs and Expenses. The Borrower and each other Credit Party, jointly and
severally, shall pay (i) all reasonable and invoiced out-of-pocket expenses incurred by each
Arranger, the Administrative Agent and their respective Affiliates (including the reasonable fees,
charges and disbursements of counsel for the Administrative Agent), in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents or any amendments,
modifications or waivers of the provisions hereof or thereof (whether or not the transactions
contemplated hereby or thereby shall be consummated), (ii) all reasonable and invoiced
out-of-pocket expenses incurred by the Issuing Lender in connection with the issuance, amendment,
renewal or extension of any Letter of Credit or any demand for payment thereunder and (iii) all
out-of- pocket expenses incurred by the Administrative Agent, any Lender or the Issuing Lender
(including the fees, charges and disbursements of any counsel for the Administrative Agent, any
Lender or the Issuing Lender), in connection with the enforcement or protection of its rights (A)
in connection with this Agreement and the other Loan Documents, including its rights under this
Section, or (B) in connection with the Loans made or Letters of Credit issued hereunder, including
all such out-of-pocket expenses incurred during any workout, restructuring or negotiations in
respect of such Loans or Letters of Credit.
(b) Indemnification by the Borrower. The Borrower shall indemnify the Administrative
Agent (and any sub-agent thereof), each Lender and the Issuing Lender, and each Related Party of
any of the foregoing Persons (each such Person being called an Indemnitee) against, and
hold each Indemnitee harmless from, and shall pay or reimburse any such Indemnitee for, any and all
losses, claims (including, without limitation, any Environmental Claims or civil penalties or fines
assessed by OFAC), damages, liabilities and related expenses (including the fees, charges and
disbursements of any counsel for any Indemnitee), incurred by any Indemnitee or asserted against
any Indemnitee by any third party or by the Borrower or any other Credit Party arising out of, in
connection with, or as a result of (i) the execution or delivery of this Agreement, any other Loan
Document or any agreement or instrument contemplated hereby or thereby, the performance by the
parties hereto of their respective obligations hereunder or thereunder or the consummation of the
transactions contemplated hereby or thereby, (ii) any Loan or Letter of Credit or the use or
proposed use of the proceeds therefrom (including any refusal by the Issuing Lender to honor a
demand for payment under a Letter of Credit if the documents presented in connection with such
demand do not strictly comply with the terms of such Letter of Credit), (iii) any actual or alleged
presence or Release of Hazardous Materials on or from any property owned or operated by the
Borrower
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or any of its Subsidiaries, or any Environmental Claim related in any way to the Borrower or
any of its Subsidiaries, (iv) any actual or prospective claim, litigation, investigation or
proceeding relating to any of the foregoing, whether based on contract, tort or any other theory,
whether brought by a third party or by the Borrower or any of its Subsidiaries, and regardless of
whether any Indemnitee is a party thereto, or (v) any claim (including, without limitation, any
Environmental Claims or civil penalties or fines assessed by OFAC), investigation, litigation or
other proceeding (whether or not the Administrative Agent or any Lender is a party thereto) and the
prosecution and defense thereof, arising out of or in any way connected with the Loans, this
Agreement, any other Loan Document, or any documents contemplated by or referred to herein or
therein or the transactions contemplated hereby or thereby, including without limitation,
reasonable attorneys and consultants fees, provided that such indemnity shall not, as to
any Indemnitee, be available to the extent that such losses, claims, damages, liabilities or
related expenses are determined by a court of competent jurisdiction by final and nonappealable
judgment to have resulted from a breach by such Indemnitee of its material obligations under the
Loan Documents or the gross negligence or willful misconduct of such Indemnitee; provided
further that such indemnity shall not require the Borrower or any Credit Party to reimburse any
Indemnitee (other than the Arrangers, the Administrative Agent and their respective Affiliates as
provided for in subsection (a) of this Section) for costs and expenses in connection with the
syndication of the credit facilities provided for herein, the preparation, negotiation, execution,
delivery and administration of this Agreement and the other Loan Documents.
(c) Reimbursement by Lenders. To the extent that the Borrower for any reason fails to
indefeasibly pay any amount required under clause (a) or (b) of this Section to be paid by it to
the Administrative Agent (or any sub-agent thereof), the Issuing Lender, the Swingline Lender or
any Related Party of any of the foregoing, each Lender severally agrees to pay to the
Administrative Agent (or any such sub-agent), the Issuing Lender or such Related Party, as the case
may be, such Lenders applicable percentage (determined as of the time that the applicable
unreimbursed expense or indemnity payment is sought) of such unpaid amount, provided that
the unreimbursed expense or indemnified loss, claim, damage, liability or related expense, as the
case may be, was incurred by or asserted against the Administrative Agent (or any such sub-agent),
the Issuing Lender or the Swingline Lender in its capacity as such, or against any Related Party of
any of the foregoing acting for the Administrative Agent (or any such sub-agent), Issuing Lender or
the Swingline Lender in connection with such capacity. The obligations of the Lenders under this
clause (c) are subject to the provisions of Section 5.7.
(d) Waiver of Consequential Damages, Etc. To the fullest extent permitted by
Applicable Law, the Borrower shall not assert, and hereby waives, any claim against any Indemnitee,
on any theory of liability, for special, indirect, consequential or punitive damages (as opposed to
direct or actual damages) arising out of, in connection with, or as a result of, this Agreement,
any other Loan Document or any agreement or instrument contemplated hereby, the transactions
contemplated hereby or thereby, any Loan or Letter of Credit or the use of the proceeds thereof. No
Indemnitee referred to in clause (b) above shall be liable for any damages arising from the use by
unintended recipients of any information or other materials distributed by it through
telecommunications, electronic or other information transmission systems in connection with this
Agreement or the other Loan Documents or the transactions contemplated hereby or thereby.
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(e) Payments. All amounts due under this Section shall be payable promptly after
demand therefor.
SECTION 14.3. Right of Set-off. If an Event of Default shall have occurred and be
continuing, each Lender, the Issuing Lender, the Swingline Lender and each of their respective
Affiliates is hereby authorized at any time and from time to time, to the fullest extent permitted
by Applicable Law, to set off and apply any and all deposits (general or special, time or demand,
provisional or final, in whatever currency) at any time held and other obligations (in whatever
currency) at any time owing by such Lender, the Issuing Lender, the Swingline Lender or any such
Affiliate to or for the credit or the account of the Borrower or any other Credit Party against any
and all of the obligations of the Borrower or such Credit Party now or hereafter existing under
this Agreement or any other Loan Document to such Lender, the Issuing Lender or the Swingline
Lender, irrespective of whether or not such Lender, the Issuing Lender or the Swingline Lender
shall have made any demand under this Agreement or any other Loan Document and although such
obligations of the Borrower or such Credit Party may be contingent or unmatured or are owed to a
branch or office of such Lender, the Issuing Lender or the Swingline Lender different from the
branch or office holding such deposit or obligated on such indebtedness. The rights of each Lender,
the Issuing Lender, the Swingline Lender and their respective Affiliates under this Section are in
addition to other rights and remedies (including other rights of setoff) that such Lender, the
Issuing Lender, the Swingline Lender or their respective Affiliates may have. Each Lender, the
Issuing Lender and the Swingline Lender agrees to notify the Borrower and the Administrative Agent
promptly after any such setoff and application; provided that the failure to give such
notice shall not affect the validity of such setoff and application.
SECTION 14.4. Governing Law. This Agreement and the other Loan Documents, unless
expressly set forth therein, shall be governed by, and construed in accordance with, the law of the
State of New York (including Section 5-1401 and Section 5-1402 of the General Obligations Law of
the State of New York), without reference to the conflicts of law principles thereof.
SECTION 14.5. Jurisdiction and Venue.
(a) Submission to Jurisdiction. The Borrower and each other Credit Party irrevocably
and unconditionally submits, for itself and its property, to the nonexclusive jurisdiction of the
state and federal courts located in New York, New York, and any appellate court from any thereof,
in any action or proceeding arising out of or relating to this Agreement or any other Loan
Document, or for recognition or enforcement of any judgment, and each of the parties hereto
irrevocably and unconditionally agrees that all claims in respect of any such action or proceeding
may be heard and determined in such New York state court or, to the fullest extent permitted by
Applicable Law, in such Federal court. Each of the parties hereto agrees that a final judgment in
any such action or proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this Agreement or in any
other Loan Document shall affect any right that the Administrative Agent, any Lender or the Issuing
Lender may otherwise have to bring any action or proceeding relating to this Agreement or any other
Loan Document against the Borrower or any other Credit Party or its properties in the courts of any
jurisdiction.
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(b) Waiver of Venue. The Borrower and each other Credit Party irrevocably and
unconditionally waives, to the fullest extent permitted by Applicable Law, any objection that it
may now or hereafter have to the laying of venue of any action or proceeding arising out of or
relating to this Agreement or any other Loan Document in any court referred to in paragraph (a) of
this Section. Each of the parties hereto hereby irrevocably waives, to the fullest extent permitted
by Applicable Law, the defense of an inconvenient forum to the maintenance of such action or
proceeding in any such court.
(c) Service of Process. Each party hereto irrevocably consents to service of process
in the manner provided for notices in Section 14.1. Nothing in this Agreement will affect
the right of any party hereto to serve process in any other manner permitted by Applicable Law.
SECTION 14.6. Waiver of Jury Trial. EACH PARTY HERETO HEREBY IRREVOCABLY WAIVES, TO
THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY
LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY OR THEREBY (WHETHER BASED ON CONTRACT, TORT
OR ANY OTHER THEORY). EACH PARTY HERETO (A) CERTIFIES THAT NO REPRESENTATIVE, AGENT OR ATTORNEY OF
ANY OTHER PERSON HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PERSON WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER AND (B) ACKNOWLEDGES THAT IT AND THE
OTHER PARTIES HERETO HAVE BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE OTHER LOAN DOCUMENTS
BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION.
SECTION 14.7. Reversal of Payments. To the extent the Borrower or any other Credit
Party makes a payment or payments to the Administrative Agent for the ratable benefit of the
Lenders or the Administrative Agent receives any payment or proceeds of the collateral which
payments or proceeds 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, state or federal law, common law or equitable cause, then, to the extent
of such payment or proceeds repaid, the Obligations or part thereof intended to be satisfied shall
be revived and continued in full force and effect as if such payment or proceeds had not been
received by the Administrative Agent.
SECTION 14.8. Injunctive Relief. The Borrower recognizes that, in the event the
Borrower fails to perform, observe or discharge any of its obligations or liabilities under this
Agreement, any remedy of law may prove to be inadequate relief to the Lenders. Therefore, the
Borrower agrees that the Lenders, at the Lenders option, shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving actual damages.
SECTION 14.9. Accounting Matters. If at any time any change in GAAP would affect the
computation of any financial ratio or requirement set forth in any Loan Document, and either the
Borrower or the Required Lenders shall so request, the Administrative Agent, the Lenders
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and the Borrower shall negotiate in good faith to amend such ratio or requirement to preserve
the original intent thereof in light of such change in GAAP (subject to the approval of the
Required Lenders); provided that, until so amended, (i) such ratio or requirement shall
continue to be computed in accordance with GAAP prior to such change therein and (ii) the Borrower
shall provide to the Administrative Agent and the Lenders financial statements and other documents
required under this Agreement or as reasonably requested hereunder setting forth a reconciliation
between calculations of such ratio or requirement made before and after giving effect to such
change in GAAP.
SECTION 14.10. Successors and Assigns; Participations.
(a) Successors and Assigns Generally. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective successors and
assigns permitted hereby, except that neither the Borrower nor any other Credit Party may assign or
otherwise transfer any of its rights or obligations hereunder without the prior written consent of
the Administrative Agent and each Lender and no Lender may assign or otherwise transfer any of its
rights or obligations hereunder except (i) to an assignee in accordance with the provisions of
paragraph (b) of this Section, (ii) by way of participation in accordance with the provisions of
paragraph (d) of this Section or (iii) by way of pledge or assignment of a security interest
subject to the restrictions of paragraph (f) of this Section (and any other attempted assignment or
transfer by any party hereto shall be null and void). Nothing in this Agreement, expressed or
implied, shall be construed to confer upon any Person (other than the parties hereto, their
respective successors and assigns permitted hereby, Participants to the extent provided in
paragraph (d) of this Section and, to the extent expressly contemplated hereby, the Related Parties
of each of the Administrative Agent and the Lenders) any legal or equitable right, remedy or claim
under or by reason of this Agreement.
(b) Assignments by Lenders. Any Lender may at any time assign to one or more assignees
all or a portion of its rights and obligations under this Agreement (including all or a portion of
its Revolving Credit Commitment and the Loans at the time owing to it); provided that any
such assignment shall be subject to the following conditions:
(i) Minimum Amounts.
(A) in the case of an assignment of the entire remaining amount of the
assigning Lenders Revolving Credit Commitment and the Loans at the time
owing to it or in the case of an assignment to a Lender, an Affiliate of a
Lender or an Approved Fund, no minimum amount need be assigned; and
(B) in any case not described in paragraph (b)(i)(A) of this Section,
the aggregate amount of the Revolving Credit Commitment (which for this
purpose includes Loans outstanding thereunder) or, if the applicable
Revolving Credit Commitment is not then in effect, the principal outstanding
balance of the Loans of the assigning Lender subject to each such assignment
(determined as of the date the Assignment and Assumption with respect to
such assignment is delivered to the
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Administrative Agent or, if Trade Date is specified in the Assignment
and Assumption, as of the Trade Date) shall not be less than $5,000,000, in
the case of any assignment in respect of the Revolving Credit Facility, or
$1,000,000, in the case of any assignment in respect of the Term Loan
Facility, unless each of the Administrative Agent and, so long as no Default
or Event of Default has occurred and is continuing, the Borrower otherwise
consents (each such consent not to be unreasonably withheld or delayed);
(ii) Proportionate Amounts. Each partial assignment shall be made as an
assignment of a proportionate part of all the assigning Lenders rights and
obligations under this Agreement with respect to the Loan or the Revolving Credit
Commitment assigned;
(iii) Required Consents. No consent shall be required for any
assignment except to the extent required by paragraph (b)(i)(B) of this Section and,
in addition:
(A) the consent of the Borrower (such consent not to be unreasonably
withheld or delayed) shall be required unless (x) an Event of Default has
occurred and is continuing at the time of such assignment or (y) such
assignment is to a Lender, an Affiliate of a Lender or an Approved Fund;
(B) the consent of the Administrative Agent (such consent not to be
unreasonably withheld or delayed) shall be required for assignments in
respect of (x) the Revolving Credit Facility if such assignment is to a
Person that is not a Lender with a Revolving Credit Commitment, an Affiliate
of such Lender or an Approved Fund with respect to such Lender or (y) the
Term Loan Facility to a Person who is not a Lender, an Affiliate of a Lender
or an Approved Fund; and
(C) the consents of the Issuing Lender and the Swingline Lender (such
consents not to be unreasonably withheld or delayed) shall be required for
any assignment that increases the obligation of the assignee to participate
in exposure under one or more Letters of Credit (whether or not then
outstanding) or for any assignment in respect of the Revolving Credit
Facility.
(iv) Assignment and Assumption. The parties to each assignment shall
execute and deliver to the Administrative Agent an Assignment and Assumption,
together with a processing and recordation fee of $3,500 for each assignment, and
the assignee, if it is not a Lender, shall deliver to the Administrative Agent an
Administrative Questionnaire.
(v) No Assignment to Borrower. No such assignment shall be made to the
Borrower or any of the Borrowers Affiliates or Subsidiaries.
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(vi) No Assignment to Natural Persons. No such assignment shall be made
to a natural person.
Subject to acceptance and recording thereof by the Administrative Agent pursuant to paragraph
(c) of this Section, from and after the effective date specified in each Assignment and Assumption,
the assignee thereunder shall be a party to this Agreement and, to the extent of the interest
assigned by such Assignment and Assumption, have the rights and obligations of a Lender under this
Agreement, and the assigning Lender thereunder shall, to the extent of the interest assigned by
such Assignment and Assumption, be released from its obligations under this Agreement (and, in the
case of an Assignment and Assumption covering all of the assigning Lenders rights and obligations
under this Agreement, such Lender shall cease to be a party hereto) but shall continue to be
entitled to the benefits of Sections 5.8, 5.9, 5.10, 5.11 and
14.2 with respect to facts and circumstances occurring prior to the effective date of such
assignment. Any assignment or transfer by a Lender of rights or obligations under this Agreement
that does not comply with this paragraph shall be treated for purposes of this Agreement as a sale
by such Lender of a participation in such rights and obligations in accordance with paragraph (d)
of this Section.
(c) Register. The Administrative Agent, acting solely for this purpose as an agent of
the Borrower, shall maintain at one of its offices in Charlotte, North Carolina, a copy of each
Assignment and Assumption delivered to it and a register for the recordation of the names and
addresses of the Lenders, and the Revolving Credit Commitment of, and principal amounts of the
Loans owing to, each Lender pursuant to the terms hereof from time to time (the
Register). The entries in the Register shall be conclusive, and the Borrower, the
Administrative Agent and the Lenders may treat each Person whose name is recorded in the Register
pursuant to the terms hereof as a Lender hereunder for all purposes of this Agreement,
notwithstanding notice to the contrary. The Register shall be available for inspection by the
Borrower and any Lender (but only to the extent of entries in the Register that are applicable to
such Lender), at any reasonable time and from time to time upon reasonable prior notice.
(d) Participations.
(i) Any Lender may at any time, without the consent of, or notice to, the Borrower or
the Administrative Agent, sell participations to any Person (other than a natural person or
the Borrower or any of the Borrowers Affiliates or Subsidiaries) (each, a
Participant) in all or a portion of such Lenders rights and/or obligations under
this Agreement (including all or a portion of its Revolving Credit Commitment and/or the
Loans owing to it); provided that (A) such Lenders obligations under this Agreement
shall remain unchanged, (B) such Lender shall remain solely responsible to the other parties
hereto for the performance of such obligations and (C) the Borrower, the Administrative
Agent, Issuing Lender, Swingline Lender and the other Lenders shall continue to deal solely
and directly with such Lender in connection with such Lenders rights and obligations under
this Agreement.
(ii) Any agreement or instrument pursuant to which a Lender sells such a participation
shall provide that such Lender shall retain the sole right to enforce this Agreement and to
approve any amendment, modification or waiver of any provision of
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this Agreement; provided that such agreement or instrument may provide that
such Lender will not, without the consent of the Participant, agree to any amendment,
modification or waiver or modification described in Section 14.11 that directly
affects such Participant and could not be affected by a vote of the Required Lenders.
Subject to paragraph (e) of this Section, the Borrower agrees that each Participant shall be
entitled to the benefits of Sections 5.8, 5.9, 5.10 and 5.11
to the same extent as if it were a Lender and had acquired its interest by assignment
pursuant to paragraph (b) of this Section. To the extent permitted by law, each Participant
also shall be entitled to the benefits of Section 14.3 as though it were a Lender,
provided such Participant agrees to be subject to Section 5.6 as though it were a
Lender.
(iii) Each Lender that sells a participation, acting as a non-fiduciary agent of the
Borrower solely for purposes of applicable United States federal income tax law and Treasury
regulations promulgated thereunder, shall maintain a book entry register on which it
records the name and address of the applicable Participant and the principal amounts of such
Participants interest in the Loans and Commitments (each such register, a Participant
Register). The entries in the Participant Register shall be conclusive absent manifest
error, and the applicable Lender, the Borrower and the Administrative Agent shall treat each
Person whose name is recorded in the Participant Register pursuant to the terms hereof as
having ownership of an interest in such Loans and Commitments for all purposes of this
Agreement, notwithstanding any notice to the contrary. Upon request by the Borrower, such
Lender shall make the Participant Register available to the Borrower.
(e) Limitations upon Participant Rights. A Participant shall not be entitled to
receive any greater payment under Sections 5.10 and 5.11 than the applicable Lender
would have been entitled to receive with respect to the participation sold to such Participant,
unless the sale of the participation to such Participant is made with the Borrowers prior written
consent. A Participant shall not be entitled to the benefits of Section 5.11 unless the
Borrower is notified of the participation sold to such Participant and such Participant agrees, for
the benefit of the Borrower, to comply with Section 5.11(e) as though it were a Lender.
(f) Certain Pledges. Any Lender may at any time pledge or assign a security interest
in all or any portion of its rights under this Agreement to secure obligations of such Lender,
including without limitation any pledge or assignment to secure obligations to a Federal Reserve
Bank; provided that no such pledge or assignment shall release such Lender from any of its
obligations hereunder or substitute any such pledgee or assignee for such Lender as a party hereto.
SECTION 14.11. Amendments, Waivers and Consents. Except as set forth below or as
specifically provided in any Loan Document, any term, covenant, agreement or condition of this
Agreement or any of the other Loan Documents may be amended or waived by the Lenders, and any
consent given by the Lenders, if, but only if, such amendment, waiver or consent is in writing
signed by the Required Lenders (or by the Administrative Agent with the consent of the Required
Lenders) and delivered to the Administrative Agent and, in the case of an amendment, signed by the
Borrower; provided, that no amendment, waiver or consent shall:
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(a) (i) waive any condition set forth in Section 6.1 without the written consent of
each Lender directly and adversely affected thereby; or
(ii) without the prior written consent of the Required Revolving Credit Lenders, amend, modify
or waive (A) Section 6.2 or any other provision of this Agreement if the effect of such
amendment, modification or waiver is to require the Revolving Credit Lenders (pursuant to, in the
case of any such amendment to a provision hereof other than Section 6.2, any substantially
concurrent request by the Borrower for a borrowing of Revolving Credit Loans) to make Revolving
Credit Loans when such Revolving Credit Lenders would not otherwise be required to do so, (B) the
amount of the Swingline Commitment or (C) the amount of the L/C Commitment;
(b) extend or increase the Revolving Credit Commitment of any Lender (or reinstate any
Revolving Credit Commitment terminated pursuant to Section 12.2) or the amount of Loans of
any Lender without the written consent of such Lender;
(c) postpone any date fixed by this Agreement or any other Loan Document for any payment
(excluding mandatory prepayments or commitment reductions) of principal, interest, fees or other
amounts due to the Lenders (or any of them) hereunder or under any other Loan Document without the
written consent of each Lender directly affected thereby;
(d) reduce the principal of, or the rate of interest specified herein on, any Loan or
Reimbursement Obligation, or (subject to clauses (iv) and (v) of the second proviso to this
Section) any fees or other amounts payable hereunder or under any other Loan Document without the
written consent of each Lender directly and adversely affected thereby; provided that only
the consent of the Required Lenders shall be necessary to (i) amend any financial covenant
hereunder (or any defined term used therein) even if the effect of such amendment would be to
reduce the rate of interest on any Loan or Letter of Credit or to reduce any fee payable hereunder
or (ii) waive any obligation of the Borrower to pay interest at the rate set forth in Section
5.1(c) during the continuance of an Event of Default;
(e) change Section 5.6 or Section 12.4 in a manner that would alter the pro
rata sharing of payments required thereby without the written consent of each Lender directly and
adversely affected thereby;
(f) change Section 4.4(b)(v) in a manner that would alter the order of application of
amounts prepaid pursuant thereto without the written consent of each Lender directly and adversely
affected thereby;
(g) change any provision of this Section or the definition of Required Lenders or any other
provision hereof specifying the number or percentage of Lenders required to amend, waive or
otherwise modify any rights hereunder or make any determination or grant any consent hereunder,
without the written consent of each Lender directly and adversely affected thereby;
(h) release all or substantially all of the value of Collateral or release any Security
Document without the written consent of each Lender (other than as authorized in
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Section 13.9 or as otherwise specifically permitted or contemplated in this Agreement
or the applicable Security Document); or
(i) release all or substantially all of the value of the Guarantees without the written
consent of each Lender (other than as authorized in Section 13.9 or as otherwise
specifically permitted or contemplated in this Agreement or the applicable Security Document);
provided further, that (i) no amendment, waiver or consent shall, unless in writing
and signed by the Issuing Lender in addition to the Lenders required above, affect the rights or
duties of the Issuing Lender under this Agreement or any Application relating to any Letter of
Credit issued or to be issued by it; (ii) no amendment, waiver or consent shall, unless in writing
and signed by the Swingline Lender in addition to the Lenders required above, affect the rights or
duties of the Swingline Lender under this Agreement; (iii) no amendment, waiver or consent shall,
unless in writing and signed by the Administrative Agent in addition to the Lenders required above,
affect the rights or duties of the Administrative Agent under this Agreement or any other Loan
Document; (iv) the Administrative Agents Fee Letter may be amended, or rights or privileges
thereunder waived, in a writing executed only by the parties thereto and (v) the Joint Fee Letter
may be amended, or rights or privileges thereunder waived, in a writing executed only by the
parties thereto. Notwithstanding anything to the contrary herein, no Defaulting Lender shall have
any right to approve or disapprove any amendment, waiver or consent hereunder, except that the
Revolving Credit Commitment of such Lender may not be increased or extended without the consent of
such Lender.
SECTION 14.12. Confidentiality. Each of the Administrative Agent, the Issuing Lender
and the Lenders agrees to maintain the confidentiality of the Information (as defined below),
except that Information may be disclosed (a) to its Affiliates and to its and its Affiliates
respective partners, directors, officers, employees, advisors, agents and other representatives,
including accountants, legal counsel and other advisors (it being understood that the Persons to
whom such disclosure is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential), (b) to the extent requested by, or required to
be disclosed to, any rating agency, or regulatory or similar authority purporting to have
jurisdiction over it (including any self-regulatory authority, such as the National Association of
Insurance Commissioners), (c) to the extent required by Applicable Laws or regulations or by any
subpoena or similar legal process, (d) to any other party hereto, (e) in connection with the
exercise of any remedies under this Agreement or under any other Loan Document (or any Hedging
Agreement with a Lender or the Administrative Agent) or any action or proceeding relating to this
Agreement or any other Loan Document (or any Hedging Agreement with a Lender or the Administrative
Agent) or the enforcement of rights hereunder or thereunder, (f) subject to an agreement containing
provisions substantially the same as those of this Section, to (i) any assignee of or Participant
in, or any prospective assignee of or Participant in, any of its rights or obligations under this
Agreement, Participant or proposed Participant or (ii) any actual or prospective counterparty (or
its advisors) to any swap or derivative transaction relating to the Borrower and its obligations,
(g) with the consent of the Borrower, (h) to Gold Sheets and other similar bank trade publications,
such information to consist of deal terms and other information customarily found in such
publications, or (i) to the extent such Information (x) becomes publicly available other than as a
result of a breach of this Section or (y) becomes available to the Administrative Agent, the
Issuing Lender or any Lender or any of their respective Affiliates on a
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nonconfidential basis from a source other than the Borrower or (j) to governmental regulatory
authorities in connection with any regulatory examination of the Administrative Agent or any Lender
or in accordance with the Administrative Agents or any Lenders regulatory compliance policy if
the Administrative Agent or such Lender deems necessary for the mitigation of claims by those
authorities against the Administrative Agent or such Lender or any of its subsidiaries or
affiliates. For purposes of this Section, Information means all information received from
any Credit Party relating to any Credit Party or any of their respective businesses, other than any
such information that is available to the Administrative Agent, the Issuing Lender or any Lender on
a nonconfidential basis prior to disclosure by any Credit Party; provided that, in the case
of written information received from a Credit Party after the date hereof, such information is
clearly identified at the time of delivery as confidential. Any Person required to maintain the
confidentiality of Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own confidential
information.
SECTION 14.13. Performance of Duties. The Borrowers obligations under this Agreement
and each of the other Loan Documents shall be performed by the Borrower at its sole cost and
expense.
SECTION 14.14. All Powers Coupled with Interest. All powers of attorney and other
authorizations granted to the Lenders, the Administrative Agent and any Persons designated by the
Administrative Agent or any Lender pursuant to any provisions of this Agreement or any of the other
Loan Documents shall be deemed coupled with an interest and shall be irrevocable so long as any of
the Obligations remain unpaid or unsatisfied, any of the Commitments remain in effect or the Credit
Facility has not been terminated.
SECTION 14.15. Survival of Indemnities. Notwithstanding any termination of this
Agreement, the indemnities to which the Administrative Agent and the Lenders are entitled under the
provisions of this Article XIV and any other provision of this Agreement and the other Loan
Documents shall continue in full force and effect and shall protect the Administrative Agent and
the Lenders against events arising after such termination as well as before.
SECTION 14.16. Titles and Captions. Titles and captions of Articles, Sections and
subsections in, and the table of contents of, this Agreement or any other Loan Document are for
convenience only, and neither limit nor amplify the provisions of this Agreement or any other Loan
Document.
SECTION 14.17. Severability of Provisions. Any provision of this Agreement or any
other Loan Document which is prohibited or unenforceable in any jurisdiction shall, as to such
jurisdiction, be ineffective only to the extent of such prohibition or unenforceability without
invalidating the remainder of such provision or the remaining provisions hereof or thereof or
affecting the validity or enforceability of such provision in any other jurisdiction.
SECTION 14.18. Counterparts; Integration; Effectiveness. This Agreement may be
executed in counterparts (and by different parties hereto in different counterparts), each of which
shall constitute an original, but all of which when taken together shall constitute a single
113
contract. Delivery of an executed signature page of this Agreement by facsimile transmission
or electronic mail shall be effective as delivery of a manually executed counterparty hereof. This
Agreement and the other Loan Documents, and any separate letter agreements with respect to fees
payable to the Administrative Agent, constitute the entire contract among the parties relating to
the subject matter hereof and supersede any and all previous agreements and understandings, oral or
written, relating to the subject matter hereof. In the event of any conflict between the provisions
of this Agreement and those of any other Loan Document, the provisions of this Agreement shall
control; provided that the inclusion of supplemental rights or remedies in favor of the
Administrative Agent or the Lenders in any other Loan Document shall not be deemed a conflict with
this Agreement. Each Loan Document was drafted with the joint participation of the respective
parties thereto and shall be construed neither against nor in favor of any party, but rather in
accordance with the fair meaning thereof. Except as provided in Section 6.1, this Agreement
shall become effective when it shall have been executed by the Administrative Agent and when the
Administrative Agent shall have received counterparts hereof that, when taken together, bear the
signatures of each of the other parties hereto.
SECTION 14.19. Electronic Execution of Assignments. The words execution, signed,
signature, and words of like import in any Assignment and Assumption shall be deemed to include
electronic signatures or the keeping of records in electronic form, each of which shall be of the
same legal effect, validity or enforceability as a manually executed signature or the use of a
paper-based recordkeeping system, as the case may be, to the extent and as provided for in any
applicable law, including the Federal Electronic Signatures in Global and National Commerce Act,
the New York State Electronic Signatures and Records Act, or any other similar state laws based on
the Uniform Electronic Transactions Act.
SECTION 14.20. Term of Agreement. This Agreement shall remain in effect from the
Closing Date through and including the date upon which all Obligations arising hereunder or under
any other Loan Document (other than (a) contingent indemnification obligations not then due and (b)
the Hedging Obligations) shall have been indefeasibly and irrevocably paid and satisfied in full
and all Revolving Credit Commitments have been terminated. The Administrative Agent is hereby
permitted to release all Liens on the Collateral in favor of the Administrative Agent, for the
ratable benefit of itself and the Lenders, upon repayment of the outstanding principal of and all
accrued interest on the Loans, payment of all outstanding fees and expenses hereunder and the
termination of the Lenders Revolving Credit Commitment. No termination of this Agreement shall
affect the rights and obligations of the parties hereto arising prior to such termination or in
respect of any provision of this Agreement which survives such termination.
SECTION 14.21. Advice of Counsel. Each of the parties represents to each other party
hereto that it has discussed this Agreement with its counsel.
SECTION 14.22. USA Patriot Act. The Administrative Agent and each Lender hereby
notifies the Borrower that pursuant to the requirements of the Patriot Act, it is required to
obtain, verify and record information that identifies the Borrower and Guarantors, which
information includes the name and address of each Borrower and Guarantor and other information that
will allow such Lender to identify such Borrower or Guarantor in accordance with the Act.
114
SECTION 14.23. Independent Effect of Covenants. The Borrower expressly acknowledges
and agrees that each covenant contained in Articles IX, X, or XI hereof
shall be given independent effect. Accordingly, the Borrower shall not engage in any transaction or
other act otherwise permitted under any covenant contained in Articles IX, X, or
XI if, before or after giving effect to such transaction or act, if as a result of such
transaction or act, the Borrower shall or would be in breach of any other covenant contained in
Articles IX, X, or XI.
SECTION 14.24. Collateral. Each of the parties hereto represents to each of the other
parties hereto that it in good faith is not relying upon any Margin Stock as collateral in the
extension or maintenance of the credit provided for in this Agreement.
[Signature pages to follow]
115
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed under seal by
their duly authorized officers, all as of the day and year first written above.
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JACK IN THE BOX INC., as Borrower
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By: |
/s/ Paul D. Melancon
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Name: |
Paul D. Melancon |
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Title: |
Vice President, Finance, Controller & Treasurer |
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WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Administrative Agent,
Swingline Lender, Issuing Lender and Lender
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By: |
/s/ Meghan Hinds
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Name: |
Meghan Hinds |
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Title: |
Vice President |
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BANK OF AMERICA, N.A., as Lender
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By: |
/s/ Angelo Maragos
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Name: |
Angelo Maragos |
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Title: |
Vice President |
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MORGAN STANLEY SENIOR FUNDING, INC., as Lender
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By: |
/s/ Paul Fossati
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Name: |
Paul Fossati |
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Title: |
Vice President |
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MORGAN STANLEY BANK, N.A.,
as Lender
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By: |
/s/ Emily Johnson |
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Name: |
Emily Johnson |
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Title: |
Vice President |
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COÖPERATIEVE CENTRALE RAIFFEISEN-BOERENLEENBANK B.A.
RABOBANK NEDERLAND NEW YORK BRANCH, as a Lender
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By: |
/s/ Steven Cashiola
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Name: |
Steven Cashiola |
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Title: |
Vice President |
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By: |
/s/ Rebecca O. Morrow
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Name: |
Rebecca O. Morrow |
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Title: |
Executive Director |
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Fifth Third Bank
as Lender
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By: |
/s/ Gary S. Losey
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Name: |
Gary S. Losey |
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Title: |
Vice President/Lender |
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Manufacturers Bank,
as Lender
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By: |
/s/ Charles C. Jou
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Name: |
Charles C. Jou |
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Title: |
Vice President |
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RAYMOND JAMES BANK, FSB,
as Lender
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By: |
/s/ Joseph A. Ciccolini
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Name: |
Joseph A. Ciccolini |
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Title: |
Vice President Senior Corporate Banker |
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U.S. Bank National Association,
as Lender
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By: |
/s/ John I. Paul
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Name: |
John I. Paul |
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Title: |
Portfolio Manager |
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UNION BANK, N.A.,
as Lender
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By: |
/s/ Glenn Fortin
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Name: |
Glenn Fortin |
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Title: |
Vice President |
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CRÉDIT INDUSTRIEL ET COMMERCIAL,
as Lender
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By: |
/s/ Brian OLeary
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Name: |
Brian OLeary |
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Title: |
Managing Director |
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By: |
/s/ Anthony Rock
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Name: |
Anthony Rock |
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Title: |
Managing Director |
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CITY NATIONAL BANK,
a national banking association,
as Lender
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By: |
/s/ Scott Johnson
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Name: |
Scott Johnson |
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Title: |
Vice President |
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Bank of the West,
as Lender
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By: |
/s/ Jason Antrim
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Name: |
Jason Antrim |
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Title: |
Assistant Vice President |
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HSBC Bank USA, National Association,
as Lender
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By: |
/s/ James Mazza
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Name: |
James Mazza |
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Title: |
Assistant Vice President (SC#18328) |
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Comerica Bank,
as Lender
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By: |
/s/ Don R. Carruth
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Name: |
Don R. Carruth |
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Title: |
Vice President |
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First Tennessee Bank National Association,
as Lender
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By: |
/s/ Matthew A. Wages
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Name: |
Matthew A. Wages |
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Title: |
Vice President |
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PNC Bank, National Association,
as Lender
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By: |
/s/ Dale A. Stein
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Name: |
Dale A. Stein |
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Title: |
Senior Vice President |
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1st Farm Credit Services, PCA,
as Lender
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By: |
/s/ Corey J. Waldinger
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Name: |
Corey J. Waldinger |
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Title: |
VP, Illinois Capital Markets Group |
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Badgerland Financial FLCA, as Lender
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By: |
/s/ Kenneth H. Rue
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Name: |
Kenneth H. Rue |
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Title: |
VP Loan Participations & Capital Markets |
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STATE BANK OF INDIA,
as Lender
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By: |
/s/ Prabodh Parikh
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Name: |
Prabodh Parikh |
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Title: |
Vice President & Head (Credit) |
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The Bank of East Asia, Limited, Los Angeles Branch,
as Lender
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By: |
/s/ Chong Tan
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Name: |
Chong Tan |
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Title: |
VP & Credit Manager |
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By: |
/s/ David Loh
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Name: |
David Loh |
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Title: |
Chief Lending Officer |
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EXHIBIT A-1
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF REVOLVING CREDIT NOTE
REVOLVING CREDIT NOTE
FOR VALUE RECEIVED, the undersigned, JACK IN THE BOX INC., a corporation organized under the
laws of Delaware (the Borrower), promises to pay to the order of (the
Lender), at the place and times provided in the Credit Agreement referred to below, the
principal sum of DOLLARS ($ ) or, if less, the principal amount of all
Revolving Credit Loans made by the Lender from time to time pursuant to that certain Credit
Agreement, dated as of June 29, 2010 (as amended, restated, supplemented or otherwise modified, the
Credit Agreement), by and among the Borrower, the financial institutions who are or may
become a party thereto, as Lenders, and Wells Fargo Bank, National Association, as Administrative
Agent. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
The unpaid principal amount of this Revolving Credit Note from time to time outstanding is
subject to mandatory repayment from time to time as provided in the Credit Agreement and shall bear
interest as provided in Section 5.1 of the Credit Agreement. All payments of principal and
interest on this Revolving Credit Note shall be payable in lawful currency of the United States in
immediately available funds to the account designated in the Credit Agreement.
This Revolving Credit Note is entitled to the benefits of, and evidences Obligations incurred
under the Credit Agreement, to which reference is made for a description of the security for this
Revolving Credit Note and for a statement of the terms and conditions on which the Borrower is
permitted and required to make prepayments and repayments of principal of the Obligations evidenced
by this Revolving Credit Note and on which such Obligations may be declared to be immediately due
and payable.
THIS REVOLVING CREDIT NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF
THE STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
The Obligations evidenced by this Revolving Credit Note are senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
The Borrower hereby waives all requirements as to diligence, presentment, demand of payment,
protest and (except as required by the Credit Agreement) notice of any kind with respect to this
Revolving Credit Note.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Revolving Credit Note under seal as of
the day and year first above written.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT A-2
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF SWINGLINE NOTE
SWINGLINE NOTE
FOR VALUE RECEIVED, the undersigned, JACK IN THE BOX INC., a corporation organized under the
laws of Delaware (the Borrower), promises to pay to the order of WELLS FARGO BANK,
NATIONAL ASSOCIATION (the Lender), at the place and times provided in the Credit
Agreement referred to below, the principal sum of TWENTY MILLION DOLLARS ($20,000,000) or, if less,
the principal amount of all Swingline Loans made by the Lender from time to time pursuant to that
certain Credit Agreement, dated as of June 29, 2010 (as amended, restated, supplemented or
otherwise modified, the Credit Agreement), by and among the Borrower, the financial
institutions who are or may become a party thereto, as Lenders, and Wells Fargo Bank, National
Association, as Administrative Agent. Capitalized terms used herein and not defined herein shall
have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Swingline Note from time to time outstanding is subject to
mandatory repayment from time to time as provided in the Credit Agreement and shall bear interest
as provided in Section 5.1 of the Credit Agreement. Swingline Loans refunded as Revolving
Credit Loans in accordance with Section 2.2(b) of the Credit Agreement shall be payable by
the Borrower as Revolving Credit Loans pursuant to the Revolving Credit Notes, and shall not be
payable under this Swingline Note as Swingline Loans. All payments of principal and interest on
this Swingline Note shall be payable in lawful currency of the United States in immediately
available funds to the account designated in the Credit Agreement.
This Swingline Note is entitled to the benefits of, and evidences Obligations incurred under,
the Credit Agreement, to which reference is made for a description of the security for this
Swingline Note and for a statement of the terms and conditions on which the Borrower is permitted
and required to make prepayments and repayments of principal of the Obligations evidenced by this
Swingline Note and on which such Obligations may be declared to be immediately due and payable.
THIS SWINGLINE NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE
STATE OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF
THE STATE OF NEW YORK), WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
The Obligations evidenced by this Swingline Note are senior in right of payment to all
Subordinated Debt referred to in the Credit Agreement.
The Borrower hereby waives all requirements as to diligence, presentment, demand of payment,
protest and (except as required by the Credit Agreement) notice of any kind with respect to this
Swingline Note.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Swingline Note under seal as of the day
and year first above written.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT A-3
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF TERM NOTE
TERM NOTE
FOR VALUE RECEIVED, the undersigned, JACK IN THE BOX INC., a corporation organized under the
laws of Delaware (the Borrower), promises to pay to the order of (the
Lender), at the place and times provided in the Credit Agreement referred to below, the
principal sum of DOLLARS ($ ) or, if less, the principal amount of all
Term Loans made by the Lender pursuant to that certain Credit Agreement, dated as of June 29, 2010
(as amended, restated, supplemented or otherwise modified, the Credit Agreement), by and
among the Borrower, the financial institutions who are or may become a party thereto, as Lenders,
and Wells Fargo Bank, National Association, as Administrative Agent. Capitalized terms used herein
and not defined herein shall have the meanings assigned thereto in the Credit Agreement.
The unpaid principal amount of this Term Note from time to time outstanding is subject to
mandatory repayment from time to time as provided in the Credit Agreement and shall bear interest
as provided in Section 5.1 of the Credit Agreement. All payments of principal and interest
on this Term Note shall be payable in lawful currency of the United States in immediately available
funds to the account designated in the Credit Agreement.
This Term Note is entitled to the benefits of, and evidences Obligations incurred under, the
Credit Agreement, to which reference is made for a description of the security for this Term Note
and for a statement of the terms and conditions on which the Borrower is permitted and required to
make prepayments and repayments of principal of the Obligations evidenced by this Term Note and on
which such Obligations may be declared to be immediately due and payable.
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE
OF NEW YORK (INCLUDING SECTION 5-1401 AND SECTION 5-1402 OF THE GENERAL OBLIGATIONS LAW OF THE
STATE OF NEW YORK), WITHOUT REFERENCE TO THE CONFLICTS OF LAW PRINCIPLES THEREOF.
The Obligations evidenced by this Term Note are senior in right of payment to all Subordinated
Debt referred to in the Credit Agreement.
The Borrower hereby waives all requirements as to diligence, presentment, demand of payment,
protest and (except as required by the Credit Agreement) notice of any kind with respect to this
Term Note.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Term Note under seal as of the day and
year first above written.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT B
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF BORROWING
NOTICE OF BORROWING
Dated as of:
Wells Fargo Bank, National Association,
as Administrative Agent
MAC D 1109-019
1525 West W.T. Harris Blvd.
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Borrowing is delivered to you pursuant to Section [2.3] of
the Credit Agreement dated as of June 29, 2010 (as amended, restated, supplemented or otherwise
modified, the Credit Agreement), by and among Jack in the Box Inc., a corporation
organized under the laws of Delaware (the Borrower), the lenders who are or may become
party thereto, as Lenders (the Lenders), and Wells Fargo Bank, National Association, as
Administrative Agent (in such capacity, the Administrative Agent).
1. The Borrower hereby requests that the Lenders make a [Revolving Credit Loan] [Swingline
Loan] to the Borrower in the aggregate principal amount of $ . (Complete with an amount
in accordance with Section 2.3(a) or Section 4.2 of the Credit Agreement).
2. The Borrower hereby requests that such Loan be made on the following Business Day:
. (Complete with a Business Day in accordance with Section 2.3(a) of the
Credit Agreement for Revolving Credit Loans or Swingline Loans.)
3. The Borrower hereby requests that such Loan bear interest at the following interest rate,
plus the Applicable Margin, as set forth below:
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Interest Period |
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Termination Date for |
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(LIBOR |
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Interest Period |
Component of Loan |
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Interest Rate |
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Rate only) |
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(if applicable) |
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[Base Rate or LIBOR
Rate]1 |
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4. The principal amount of all Loans and L/C Obligations outstanding as of the date hereof
(including the Loan requested herein) does not exceed the maximum amount permitted to be
outstanding pursuant to the terms of the Credit Agreement.
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1 |
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Complete with (i) the Base Rate or the LIBOR Rate for
Revolving Credit Loans and (ii) the Base Rate for Swingline Loans. |
5. All of the conditions applicable to the Loan requested herein as set forth in the Credit
Agreement have been satisfied as of the date hereof and will remain satisfied to the date of such
Loan.
6. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Borrowing as of the date first
written above.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT C
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF ACCOUNT DESIGNATION
NOTICE OF ACCOUNT DESIGNATION
Dated as of:
Wells Fargo Bank, National Association,
as Administrative Agent
MAC D 1109-019
1525 West W.T. Harris Blvd.
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Ladies and Gentlemen:
This Notice of Account Designation is delivered to you pursuant to Section 2.3(b) of
the Credit Agreement dated as of June 29, 2010 (as amended, restated, supplemented or otherwise
modified, the Credit Agreement), by and among Jack in the Box Inc., a corporation
organized under the laws of Delaware (the Borrower), the lenders who are or may become
party thereto, as Lenders (the Lenders), and Wells Fargo Bank, National Association, as
Administrative Agent (in such capacity, the Administrative Agent).
1. The Administrative Agent is hereby authorized to disburse all Loan proceeds into the
following account(s):
ABA Routing Number: _______
Account Number: ___________
2. This authorization shall remain in effect until revoked or until a subsequent Notice of
Account Designation is provided to the Administrative Agent.
3. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Account Designation as of the
date first written above.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT D
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF PREPAYMENT
NOTICE OF PREPAYMENT
Dated as of:
Wells Fargo Bank, National Association,
as Administrative Agent
MAC D 1109-019
1525 West W.T. Harris Blvd.
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Prepayment is delivered to you pursuant to Section [2.4(c)]
[4.4] of the Credit Agreement dated as of June 29, 2010 (as amended, restated, supplemented or
otherwise modified, the Credit Agreement), by and among Jack in the Box Inc., a
corporation organized under the laws of Delaware (the Borrower), the lenders who are or
may become party thereto, as Lenders (the Lenders), and Wells Fargo Bank, National
Association, as Administrative Agent (in such capacity, the Administrative Agent).
1. The Borrower hereby provides notice to the Administrative Agent that it shall repay the
following [Base Rate Loans] and/or [LIBOR Rate Loans]: . (Complete with an amount
in accordance with Section 2.4 or Section 4.4 of the Credit Agreement.)
2. The Loan to be prepaid is a [check each applicable box]
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Swingline Loan |
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Revolving Credit Loan |
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Term Loan |
3. The Borrower shall repay the above-referenced Loans on the following Business Day:
. (Complete with a Business Day at least one (1) Business Day subsequent to the date
of this Notice of Prepayment with respect to any Base Rate Loan (other than a Swingline Loan), the
same day as the date of this Notice of Prepayment with respect to any Swingline Loan and three (3)
Business Days subsequent to date of this Notice of Prepayment with respect to any LIBOR Rate Loan.)
4. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed this Notice of Prepayment as of the date
first written above.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT E
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF NOTICE OF CONVERSION/CONTINUATION
NOTICE OF CONVERSION/CONTINUATION
Dated as of:
Wells Fargo Bank, National Association,
as Administrative Agent
MAC D 1109-019
1525 West W.T. Harris Blvd.
Charlotte, North Carolina 28262
Attention: Syndication Agency Services
Ladies and Gentlemen:
This irrevocable Notice of Conversion/Continuation (this Notice) is delivered to you
pursuant to Section 5.2 of the Credit Agreement dated as of June 29, 2010 (as amended,
restated, supplemented or otherwise modified, the Credit Agreement), by and among Jack in
the Box Inc., a corporation organized under the laws of Delaware (the Borrower), the
lenders who are or may become party thereto, as Lenders (the Lenders), and Wells Fargo
Bank, National Association, as Administrative Agent (in such capacity, the Administrative
Agent).
1. The Loan to which this Notice relates is a [Revolving Credit Loan] [Term Loan]. (Delete as
applicable.)
2. This Notice is submitted for the purpose of: (Check one and complete applicable
information in accordance with the Credit Agreement.)
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Converting all or a portion of a Base Rate Loan into a LIBOR Rate Loan |
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(a) |
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The aggregate outstanding principal balance of such Loan is $ . |
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(b) |
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The principal amount of such Loan to be converted is $ . |
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(c) |
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The requested effective date of the conversion of such Loan is . |
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(d) |
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The requested Interest Period applicable to the converted Loan is . |
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Converting a portion of LIBOR Rate Loan into a Base Rate Loan |
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(a) |
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The aggregate outstanding principal balance of such Loan is $ . |
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(b) |
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The last day of the current Interest Period for such Loan is . |
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(c) |
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The principal amount of such Loan to be converted is $ . |
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(d) |
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The requested effective date of the conversion of such Loan is . |
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Continuing all or a portion of a LIBOR Rate Loan as a LIBOR Rate Loan |
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(a) |
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The aggregate outstanding principal balance of such Loan is $ . |
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(b) |
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The last day of the current Interest Period for such Loan is . |
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(c) |
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The principal amount of such Loan to be continued is $ . |
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(d) |
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The requested effective date of the continuation of such Loan is . |
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(e) |
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The requested Interest Period applicable to the continued Loan is . |
3. All of the conditions applicable to the conversion or continuation of the Loan requested
herein as set forth in the Credit Agreement have been satisfied as of the date hereof and will
remain satisfied to the date of such Loan.
4. Capitalized terms used herein and not defined herein shall have the meanings assigned
thereto in the Credit Agreement.
[Signature Page Follows]
22
IN WITNESS WHEREOF, the undersigned has executed this Notice of Conversion/Continuation as of
the date first written above.
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JACK IN THE BOX INC.
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By: |
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Name: |
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Title: |
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EXHIBIT F
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF OFFICERS COMPLIANCE CERTIFICATE
OFFICERS COMPLIANCE CERTIFICATE
The undersigned, on behalf of Jack in the Box Inc., a corporation organized under the laws of
Delaware (the Borrower), hereby certifies to the Administrative Agent and the Lenders,
each as defined in the Credit Agreement referred to below, as follows:
1. This certificate is delivered to you pursuant to Section 8.2 of the Credit
Agreement dated as of June 29, 2010 (as amended, restated, supplemented or otherwise modified, the
Credit Agreement), by and among the Borrower, the lenders who are or may become party
thereto, as Lenders (the Lenders), and Wells Fargo Bank, National Association, as
Administrative Agent (in such capacity, the Administrative Agent). Capitalized terms used
herein and not defined herein shall have the meanings assigned thereto in the Credit Agreement.
2. I have reviewed the financial statements of the Borrower and its Subsidiaries dated as of
_____
and for the
_____
period[s] then ended and such statements fairly present
in all material respects the financial condition of the Borrower and its Subsidiaries as of the
dates indicated and the results of their operations and cash flows for the period[s] indicated.
3. I have reviewed the terms of the Credit Agreement, and the related Loan Documents and have
made, or caused to be made under my supervision, a review in reasonable detail of the transactions
and the condition of the Borrower and its Subsidiaries during the accounting period covered by the
financial statements referred to in Paragraph 2 above. Such review has not disclosed the existence
during or at the end of such accounting period of any condition or event that constitutes a Default
or an Event of Default, nor do I have any knowledge of the existence of any such condition or event
as at the date of this certificate [except, if such condition or event existed or exists, describe
the nature and period of existence thereof and what action the Borrower has taken, is taking and
proposes to take with respect thereto].
4. The Borrower and its Subsidiaries are in compliance with the financial covenants contained
in Article X of the Credit Agreement as shown on Schedule 1 attached hereto.
5. As of the most recent fiscal quarter end, the percentage of Consolidated EBITDA of the
Borrower and its Subsidiaries that is represented by (a) all of the Unrestricted Subsidiaries taken
as a whole and (b) each individual Unrestricted Subsidiary are each set forth on the attached
Schedule 1.
6. As of the most recent fiscal quarter end, the percentage of the Consolidated assets of the
Borrower and its Subsidiaries that is represented by (a) all of the Unrestricted Subsidiaries taken
as a whole and (b) each individual Unrestricted Subsidiary are each set forth on the attached
Schedule 1.
7. The Applicable Margin and calculations determining the same are set forth on the attached
Schedule 1.
[Signature Page Follows]
WITNESS the following signature as of the day of , 201 .
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JACK IN THE BOX INC.
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By. |
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Name: |
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Title: |
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Schedule 1
to
Officers Compliance Certificate
[Template to be separately provided]
EXHIBIT G
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF ASSIGNMENT AND ASSUMPTION
ASSIGNMENT AND ASSUMPTION
This Assignment and Assumption (the Assignment and Assumption) is dated as of the
Effective Date set forth below and is entered into by and between [the] [each]1 Assignor
identified on the Schedules hereto as Assignor or Assignors (collectively, the
Assignors and each an Assignor) and [the] [each]2 Assignee
identified on the Schedules hereto as Assignee or Assignees (collectively, the
Assignees and each an Assignee). [It is understood and agreed that the rights
and obligations of [the Assignors] [the Assignees]3 hereunder are several and not
joint.]4 Capitalized terms used but not defined herein shall have the meanings given to
them in the Credit Agreement identified below (the Credit Agreement), receipt of a copy
of which is hereby acknowledged by [the] [each] Assignee. The Standard Terms and Conditions set
forth in Annex 1 attached hereto are hereby agreed to and incorporated herein by reference
and made a part of this Assignment and Assumption as if set forth herein in full.
For an agreed consideration, [the] [each] Assignor hereby irrevocably sells and assigns to
[the Assignee] [the respective Assignees], and [the] [each] Assignee hereby irrevocably purchases
and assumes from [the Assignor] [the respective Assignors], subject to and in accordance with the
Standard Terms and Conditions and the Credit Agreement, as of the Effective Date inserted by the
Administrative Agent as contemplated below (i) all of [the Assignors] [the respective Assignors]
rights and obligations in [its capacity as a Lender] [their respective capacities as Lenders] under
the Credit Agreement and any other documents or instruments delivered pursuant thereto to the
extent related to the amount and percentage interest identified below of all of such outstanding
rights and obligations of [the Assignor] [the respective Assignors] under the respective facilities
identified below (including without limitation any letters of credit, guarantees, and swingline
loans included in such facilities) and (ii) to the extent permitted to be assigned under applicable
law, all claims, suits, causes of action and any other right of [the Assignor (in its capacity as a
Lender)] [the respective Assignors (in their respective capacities as Lenders)] against any Person,
whether known or unknown, arising under or in connection with the Credit Agreement, any other
documents or instruments delivered pursuant thereto or the loan transactions governed thereby or in
any way based on or related to any of the foregoing, including, but not limited to, contract
claims, tort claims, malpractice claims, statutory claims and all other claims at law or in equity
related to the rights and obligations sold and assigned pursuant to clause (i) above (the rights
and obligations sold and assigned by [the] [any] Assignor to [the] [any] Assignee pursuant to
clauses (i) and (ii) above being referred to herein collectively as, the Assigned
Interest). Each such sale and assignment is without recourse to [the] [any] Assignor and,
except as expressly provided in this Assignment and Assumption, without representation or warranty
by [the] [any] Assignor.
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1 |
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For bracketed language here and elsewhere in this form
relating to the Assignor(s), if the assignment is from a single Assignor,
choose the first bracketed language. If the assignment is from multiple
Assignors, choose the second bracketed language. |
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For bracketed language here and elsewhere in this form
relating to the Assignee(s), if the assignment is to a single Assignee, choose
the first bracketed language. If the assignment is to multiple Assignees,
choose the second bracketed language. |
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Select as appropriate. |
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Include bracketed language if there are either multiple
Assignors or multiple Assignees. |
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1.
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Assignor:
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See Schedules attached hereto |
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2.
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Assignees:
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See Schedules attached hereto |
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3.
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Borrower:
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Jack in the Box Inc., a Delaware corporation |
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4.
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Administrative Agent:
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Wells Fargo Bank, National
Association, as
the administrative agent under the Credit
Agreement |
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5.
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Credit Agreement:
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The Credit Agreement dated as of June 29,
2010 by and among Jack in the Box Inc., as
Borrower, the Lenders party thereto and
Wells Fargo Bank, National Association, as
Administrative Agent (as amended, restated,
supplemented or otherwise modified) |
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6.
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Assigned Interest:
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See Schedules attached hereto |
[7.
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Trade Date:
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]5 |
[Remainder of Page Intentionally Left Blank]
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5 |
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To be completed if the Assignor(s) and the Assignee(s) intend that the minimum assignment amount is to be determined as of the Trade Date. |
Effective Date: , 20 [TO BE INSERTED BY THE ADMINISTRATIVE AGENT AND WHICH
SHALL BE THE EFFECTIVE DATE OF RECORDATION OF TRANSFER IN THE REGISTER THEREFOR.]
The terms set forth in this Assignment and Assumption are hereby agreed to:
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ASSIGNOR(S)
[NAME OF ASSIGNOR]6
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By: |
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Title: |
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ASSIGNEES(S)
See Schedules attached hereto
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6 |
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Add additional signature blocks as needed. |
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[Consented to and]7 Accepted:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Administrative Agent
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By: |
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Title: |
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Consented to:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Swingline Lender and Issuing Lender
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By: |
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Title: |
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[Consented to:]8
JACK IN THE BOX INC.
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By: |
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Title: |
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7 |
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To be added only if the consent of the Administrative
Agent is required by the terms of the Credit Agreement. |
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To be added only if the consent of the Borrower is
required by the terms of the Credit Agreement. |
SCHEDULE 1
To Assignment and Assumption
By its execution of this Schedule, the Assignee agrees to the terms set forth in the attached
Assignment and Assumption.
Assigned Interests:
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Aggregate |
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Amount of |
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Percentage |
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Commitment/ |
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Amount of |
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Assigned of |
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Loans for all |
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Commitment/Loans |
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Commitment/ |
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Facility Assigned9 |
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Lenders10 |
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Assigned11 |
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Loans12 |
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CUSIP Number |
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$
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$
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% |
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$
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$
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% |
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$
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$
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% |
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[NAME OF ASSIGNEE]13
[and is an Affiliate/Approved Fund of [identify
Lender]14]
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By: |
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Title: |
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9 |
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Fill in the appropriate terminology for the types of
facilities under the Credit Agreement that are being assigned under this
Assignment (e.g., Revolving Credit Commitment, Term Loan, etc.). |
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Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date. |
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Amount to be adjusted by the counterparties to take
into account any payments or prepayments made between the Trade Date and the
Effective Date. |
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Set forth, to at least 9 decimals, as a percentage of
the Commitment/Loans of all Lenders thereunder. |
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Add additional signature blocks, as needed. |
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14 |
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Select as applicable. |
ANNEX 1
to Assignment and Assumption
STANDARD TERMS AND CONDITIONS FOR
ASSIGNMENT AND ASSUMPTION
1. Representations and Warranties.
1.1 Assignor[s]. [The] [Each] Assignor (a) represents and warrants that (i) it is the
legal and beneficial owner of the Assigned Interest, (ii) the Assigned Interest is free and clear
of any lien, encumbrance or other adverse claim and (iii) it has full power and authority, and has
taken all action necessary, to execute and deliver this Assignment and Assumption and to consummate
the transactions contemplated hereby; and (b) assumes no responsibility with respect to (i) any
statements, warranties or representations made in or in connection with the Credit Agreement or any
other Loan Document, (ii) the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Loan Documents or any collateral thereunder, (iii) the financial
condition of the Borrower, any of its Subsidiaries or Affiliates or any other Person obligated in
respect of any Loan Document or (iv) the performance or observance by the Borrower, any of its
Subsidiaries or Affiliates or any other Person of any of their respective obligations under any
Loan Document.
1.2. Assignee[s]. [The] [Each] Assignee (a) represents and warrants that (i) it has
full power and authority, and has taken all action necessary, to execute and deliver this
Assignment and Assumption and to consummate the transactions contemplated hereby and to become a
Lender under the Credit Agreement, (ii) it meets all the requirements to be an assignee under
Section 14.10 of the Credit Agreement (subject to receipt of such consents, if any, as may
be required under Section 14.10(b) of the Credit Agreement), (iii) from and after the
Effective Date, it shall be bound by the provisions of the Credit Agreement as a Lender thereunder
and, to the extent of the Assigned Interest, shall have the obligations of a Lender thereunder,
(iv) it is sophisticated with respect to decisions to acquire assets of the type represented by the
Assigned Interest and either it, or the person exercising discretion in making its decision to
acquire the Assigned Interest, is experienced in acquiring assets of such type, (v) it has received
a copy of the Credit Agreement, and has received or has been accorded the opportunity to receive
copies of the most recent financial statements delivered pursuant to Section 8.1 thereof,
as applicable, and such other documents and information as it deems appropriate to make its own
credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest, (vi) it has, independently and without reliance upon the Administrative Agent or
any other Lender and based on such documents and information as it has deemed appropriate, made its
own credit analysis and decision to enter into this Assignment and Assumption and to purchase the
Assigned Interest, and (vii) if it is a Foreign Lender, attached to the Assignment and Assumption
is any documentation required to be delivered by it pursuant to the terms of the Credit Agreement,
duly completed and executed by [the] [such] Assignee; and (b) agrees that (i) it will,
independently and without reliance on the Administrative Agent, [the] [any] Assignor or any other
Lender, and based on such documents and information as it shall deem appropriate at the time,
continue to make its own credit decisions in taking or not taking action under the Loan Documents,
and (ii) it will perform in accordance with their terms all of the obligations which by the terms
of the Loan Documents are required to be performed by it as a Lender.
2. Payments. From and after the Effective Date, the Administrative Agent shall make
all payments in respect of [the] [each] Assigned Interest (including payments of principal,
interest, fees and other amounts) to [the] [the relevant] Assignor for amounts which have accrued
to but excluding the Effective Date and to [the] [the relevant] Assignee for amounts which have
accrued from and after the Effective Date.
3. General Provisions. This Assignment and Assumption shall be binding upon, and
inure to the benefit of the parties hereto and their respective successors and assigns. This
Assignment and Assumption may be executed in any number of counterparts, which together shall
constitute one instrument. Delivery of an executed counterpart of a signature page of this
Assignment and Assumption by telecopy shall be effective as delivery of a manually executed
counterpart of this Assignment and Assumption. This Assignment and Assumption shall be governed by,
and construed in accordance with, the law of the State of New York.
EXHIBIT H
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF GUARANTY AGREEMENT
Filed Separately as Exhibit 10.2
EXHIBIT I
to
Credit Agreement
dated as of June 29, 2010
by and among
Jack in the Box Inc.,
as Borrower,
the Lenders party thereto,
as Lenders
and
Wells Fargo Bank, National Association,
as Administrative Agent
FORM OF COLLATERAL AGREEMENT
Filed Separately as Exhibit 10.3
SCHEDULE 1.1(a) EXISTING LETTERS OF CREDIT
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L/C Number |
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Face Amount |
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Beneficiary |
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Expiration |
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Issuing Bank |
SM221815W |
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$ |
21,500,000 |
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Ace American Insurance |
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9/10/10 |
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Wells Fargo Bank, N.A. |
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Company |
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(fka Wachovia Bank, N.A.) |
SM201759W |
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$ |
13,416,000 |
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Transportation Insurance |
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10/31/10 |
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Wells Fargo Bank, N.A. |
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Company (CNA) |
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(fka Wachovia Bank, N.A.) |
SM236686 |
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$ |
24,816,000 |
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The Board of County |
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9/1/10 |
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Wells Fargo Bank, N.A. |
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Commissioners of Douglas County |
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(fka Wachovia Bank, N.A.) |
1
SCHEDULE 1.1(b) UNRESTRICTED SUBSIDIARIES
1. |
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Foodmaker Inc., a Delaware corporation |
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2. |
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Foodmaker International Franchising, Inc., a Delaware corporation |
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3. |
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Stored Value Card, Inc., a Colorado corporation |
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4. |
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JIB Stored Value Cards, LLC, a Virginia limited liability company |
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5. |
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ZRC Operations Company, Inc., a Colorado corporation |
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6. |
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QMG Stored Value Cards, LLC, a Virginia limited liability company |
2
SCHEDULE 1.1(c) RESTAURANT UNITS HELD FOR RESALE
As of Period Ended June 28, 2010
Completed Sites:
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JIB Site No. |
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Address / Cross Street |
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Open Date |
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90
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1619 Pacific Hwy.
San Diego, CA
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12/8/2009 |
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1579
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Waddell Rd. & Reems Rd.
Surprise, AZ
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4/4/2009 |
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3403
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1075 S. Main Street
Red Bluff, CA
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12/20/1991 |
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3905
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3595 S Loop 336 E.
Conroe, TX
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9/29/2008 |
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3936
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3601 N Main St.
Baytown, TX
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8/5/2008 |
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4367
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10390 Twin Cities Blvd.
Galt, CA
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10/9/2004 |
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4368
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2010 Arvy Way
Anderson, CA
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7/7/2004 |
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4394
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Crows Landing & Whitmore Ave.
Modesto, CA
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11/23/2009 |
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4399
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Balfour Rd. & Fairview Ave.
Brentwood, CA
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4/5/2010 |
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4712
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2395 Texas Ave.
Bridge City, TX
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9/30/2007 |
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4730
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8513 S. Hulen St. & W. Risinger Rd.
Fort Worth, TX
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11/24/2008 |
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4734
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FM 1464 & Orchid Ridge Lane
Richmond, TX
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6/1/2009 |
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3
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JIB Site No. |
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Address / Cross Street |
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Open Date |
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4744
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Hwy 380 & 2nd St.
Princeton, TX
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1/12/2009 |
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4764
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Hwy 59 Business & Azalea St.
Victoria, TX
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1/12/2009 |
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4774
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College Ave. & Austin St.
South Houston, TX
|
|
4/12/2009 |
|
|
|
|
|
4776
|
|
I Hwy 10 & Martin Luther King Blvd.
Beaumont, TX
|
|
9/9/2009 |
|
|
|
|
|
4777
|
|
Everhart Rd. & Saratoga Blvd.
Corpus Christi, TX
|
|
11/16/2009 |
|
|
|
|
|
4778
|
|
Hwy 327 & Hwy 96 Business
Silsbee, TX
|
|
9/28/2009 |
|
|
|
|
|
4779
|
|
Camp Wisdom Rd. & I Hwy 35E.
Fort Worth, TX
|
|
10/29/2009 |
|
|
|
|
|
4780
|
|
North Navarro St. & E. Magruder Dr.
Victoria, TX
|
|
5/18/2009 |
|
|
|
|
|
4781
|
|
E 8th St & I Hwy 45
Ferris, TX
|
|
5/4/2009 |
|
|
|
|
|
4783
|
|
Highway 80 & FM 548
Forney, TX
|
|
8/10/2009 |
|
|
|
|
|
4784
|
|
Luna Rd. & Valley View Ln.
Carrollton, TX
|
|
6/1/2009 |
|
|
|
|
|
4786
|
|
W University Ave. & Railroad St.
Georgetown, TX
|
|
8/24/2009 |
|
|
|
|
|
4792
|
|
Oakmont Blvd. & Harris Pkwy.
Fort Worth, TX
|
|
10/5/2009 |
|
|
|
|
|
4796
|
|
Legacy Dr. & Main St.
Frisco, TX
|
|
10/12/2009 |
|
|
|
|
|
4798
|
|
Stacy Rd & Hwy 5
Allen, TX
|
|
4/26/2010 |
|
|
|
|
|
6139
|
|
W Kenosha St & Aspen Ave
Broken Arrow, OK
|
|
4/5/2010 |
|
|
|
|
|
6141
|
|
12th Ave. NE & Main St.
Norman, OK
|
|
5/10/2010 |
4
|
|
|
|
|
JIB Site No. |
|
Address / Cross Street |
|
Open Date |
|
|
|
|
|
7169
|
|
37115 Hwy 26
Sandy, OR
|
|
2/25/2010 |
|
|
|
|
|
8128
|
|
Interstate Hwy 70 & Chambers Rd
Aurora, CO
|
|
9/8/2009 |
|
|
|
|
|
8138
|
|
Sheridan Ave & 72nd Ave.
Westminster, CO
|
|
8/3/2009 |
|
|
|
|
|
8140
|
|
136th Ave & Zuni St.
Broomfield, CO
|
|
11/9/2009 |
|
|
|
|
|
8149
|
|
Hwy 287 & 17th Ave.
Longmont, CO
|
|
3/15/2010 |
|
|
|
|
|
8367
|
|
3179 156th Ave. SE
Bellevue, WA
|
|
4/3/2006 |
|
|
|
|
|
8386
|
|
20407 Mountain Hwy E.
Spanaway, WA
|
|
2/12/2010 |
Sites Under Construction or Pre-construction:
|
|
|
|
|
JIB Site No. |
|
Address / Cross Street |
|
Open Date |
|
4401
|
|
Hwy 17 & Scotts Valley Dr.
Scotts Valley, CA
|
|
8/30/2010 |
|
|
|
|
|
4736
|
|
Cullen Blvd. & Beltway 8
Houston, TX
|
|
8/29/2010 |
|
|
|
|
|
4797
|
|
Hwy 365 & Hwy 347
Port Arthur, TX
|
|
9/5/2010 |
|
|
|
|
|
4807
|
|
Hwy 96 & Hwy 190
Jasper, TX
|
|
8/15/2010 |
|
|
|
|
|
4809
|
|
Loop 1604 & Huebner Rd.
San Antonio, TX
|
|
9/26/2010 |
|
|
|
|
|
4811
|
|
I Hwy 35 & Loop 337
New Braunfels, TX
|
|
9/26/2010 |
|
|
|
|
|
4812
|
|
2395 Texas Ave.
Bastrop, TX
|
|
9/19/2010 |
|
|
|
|
|
6143
|
|
McArthur Blvd. & Hwy 40
Oklahoma City, OK
|
|
8/30/2010 |
5
|
|
|
|
|
JIB Site No. |
|
Address / Cross Street |
|
Open Date |
|
|
|
|
|
6144
|
|
SW 19th St & Fritts Blvd.
Moore, OK
|
|
7/26/2010 |
|
|
|
|
|
6145
|
|
E. 41st. St. & Highway 169
Tulsa, OK
|
|
12/6/2010 |
|
|
|
|
|
8147
|
|
Coalton Rd., & Summit Blvd.
Broomfield, CO
|
|
9/27/2010 |
|
|
|
|
|
8372
|
|
W. Bakerview Rd & Northwest Rd.
Bellingham, WA
|
|
7/26/10 |
6
SCHEDULE 7.1(a) JURISDICTION OF ORGANIZATION AND QUALIFICATION
Jack in the Box Inc.
|
|
|
State of Organization:
|
|
Delaware |
States of Qualification:
|
|
Arizona |
|
|
California |
|
|
Colorado |
|
|
Hawaii |
|
|
Idaho |
|
|
Illinois |
|
|
Louisiana |
|
|
Minnesota |
|
|
Nevada |
|
|
New Mexico |
|
|
North Carolina |
|
|
Oklahoma |
|
|
Oregon |
|
|
South Carolina |
|
|
Texas |
|
|
Utah |
|
|
Washington |
Jack in the Box Eastern Division L.P.
|
|
|
State of Organization:
|
|
Texas |
States of Qualification:
|
|
Arkansas |
|
|
Illinois |
|
|
Indiana |
|
|
Kentucky |
|
|
Louisiana |
|
|
Michigan |
|
|
Missouri |
|
|
North Carolina |
|
|
Ohio |
|
|
Oklahoma |
|
|
South Carolina |
|
|
Tennessee |
JBX General Partner LLC
|
|
|
State of Organization:
|
|
Delaware |
States of Qualification:
|
|
Georgia |
|
|
Illinois |
|
|
South Carolina |
|
|
Texas |
7
JBX Limited Partner, LLC
|
|
|
State of Organization:
|
|
Delaware |
States of Qualification:
|
|
None |
Stored Value Card, Inc.
|
|
|
State of Organization:
|
|
Colorado |
States of Qualification:
|
|
None |
Foodmaker Inc.
|
|
|
State of Organization:
|
|
Delaware |
States of Qualification:
|
|
None |
Foodmaker International Franchising, Inc.
|
|
|
State of Organization:
|
|
Delaware |
States of Qualification:
|
|
California |
Qdoba Restaurant Corporation
|
|
|
State of Organization:
|
|
Delaware |
States of Qualification:
|
|
California |
|
|
Colorado |
|
|
Missouri |
|
|
Texas |
|
|
Washington |
ZRC Operations Company, Inc.
|
|
|
State of Organization:
|
|
Colorado |
State of Qualification:
|
|
California |
|
|
Illinois |
|
|
Michigan |
|
|
Minnesota |
|
|
Missouri |
|
|
New Jersey |
|
|
New York |
|
|
Ohio |
|
|
Pennsylvania |
|
|
Washington |
JIB Stored Value Cards, LLC
|
|
|
State of Organization:
|
|
Virginia |
States of Qualification:
|
|
None |
8
QMG Stored Value Cards, LLC
|
|
|
State of Organization:
|
|
Virginia |
States of Qualification:
|
|
None |
9
SCHEDULE 7.1(b) SUBSIDIARIES AND CAPITALIZATION
1. |
|
Jack in the Box Eastern Division L.P., a Texas limited partnership |
|
|
|
JBX General Partner LLC owns a 1% general partnership interest |
|
|
|
|
JBX Limited Partner LLC owns a 99% limited partnership interest |
2. |
|
JBX General Partner LLC, a Delaware limited liability company |
|
|
|
Jack in the Box Inc. owns 100% of the membership interests |
3. |
|
JBX Limited Partner LLC, a Delaware limited liability company |
|
|
|
Jack in the Box Inc. owns 100% of the membership interests |
4. |
|
Foodmaker Inc., a Delaware corporation |
|
|
|
Jack in the Box Inc. owns 100% of the issued and outstanding shares
(1,000 shares) with $0.01 par value |
5. |
|
Foodmaker International Franchising, Inc., a Delaware corporation |
|
|
|
Jack in the Box Inc. owns 100% of the issued and outstanding shares
(10,000 shares) with $0.10 par value |
6. |
|
JIB Stored Value Cards, LLC, a Virginia limited liability company |
|
|
|
Jack in the Box Inc. owns 100% of the membership interests |
7. |
|
Qdoba Restaurant Corporation, a Delaware corporation |
|
|
|
Jack in the Box Inc. owns 100% of the issued and outstanding shares
(1,000 shares) with $0.01 par value |
8. |
|
ZRC Operations Company, Inc., a Colorado corporation |
|
|
|
Qdoba Restaurant Corporation owns 100% of the issued and outstanding
shares (100 shares) with $0.01 par value |
9. |
|
QMG Stored Value Cards, LLC, a Virginia limited liability company |
|
|
|
Qdoba Restaurant Corporation owns 100% of the membership interests |
10. |
|
Stored Value Card, Inc., a Colorado corporation |
|
|
|
Jack in the Box Inc. owns 100% of the issued and outstanding shares
(1,000 shares) with $0.01 par value |
10
SCHEDULE 7.1(i) ERISA PLANS
Pension Plans
Jack in the Box Inc. Retirement Plan
401(k) Plan
Jack in the Box Inc. Easy$aver Plus Plan
Vacation Plan
Jack in the Box Inc. Employee Vacation Benefit Plan
Health & Welfare Plans
Jack in the Box Inc. Executive Health and Welfare Benefits Plan
Jack in the Box Inc. Administrative Employees Health and Welfare Benefits Plan
Jack in the Box Inc. Shift Leaders Health and Welfare Benefits Plan
Jack in the Box Inc. Crew Employees Health and Welfare Benefits Plan
Jack in the Box Inc. Hawaiian Employees Health and Welfare Benefits Plan
Jack in the Box Inc. Flexible Spending Plan
11
SCHEDULE 7.1(t) DEBT AND GUARANTY OBLIGATIONS*
Obligations under the Loan Documents
|
|
|
|
|
Transportation Insurance Company Letter of Credit |
|
$ |
13,416,000 |
|
Ace American Insurance Company Letter of Credit |
|
$ |
21,500,000 |
|
Capitalized lease obligations, 9.97% average interest rate |
|
$ |
9,252,000 |
* |
The Board of County Commissioners of Douglas County Letter of Credit |
|
$ |
24,816,000 |
|
From time to time in connection with certain sale/leaseback and other third party lease
transactions, Jack in the Box Inc. has executed one or more written guarantees of the leasehold
obligations of Jack in the Box Eastern Division L.P.
|
|
|
* |
|
Estimated as of June 6, 2010 |
12
SCHEDULE 7.1(u) LITIGATION
None.
13
SCHEDULE 11.1(c) PERMITTED DEBT
None.
14
SCHEDULE 11.2 EXISTING LIENS
Collateral Description
A = Accounts
E(S) = Equipment (specified items only)
E(C) = Equipment (all items sold, leased or financed under specific contract)
E(A) = Equipment (all equipment)
B = Blanket
O = Other
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
Jack in the Box Inc. |
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, |
|
11643035 |
|
|
|
|
|
|
Suite 800 |
|
12/07/01 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
Continuation |
|
|
|
|
|
|
|
|
63304482 |
|
|
|
|
|
|
|
|
09/25/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Banc of America Leasing & Capital, LLC |
|
Initial |
|
E(S) |
|
|
|
|
One Financial Plaza |
|
23198219 |
|
|
|
|
|
|
Providence, RI 02903 |
|
12/06/02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2007 3106589 |
|
|
|
|
|
|
|
|
08/15/07 |
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2007 3201745 |
|
|
|
|
|
|
|
|
08/22/07 |
|
|
15
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Banc of America Leasing & Capital, LLC |
|
Initial |
|
E(S) |
|
|
|
|
One Financial Plaza |
|
23198243 |
|
|
|
|
|
|
Providence, RI 02903 |
|
12/06/02 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2007 3106944 |
|
|
|
|
|
|
|
|
08/15/07 |
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2007 3201620 |
|
|
|
|
|
|
|
|
08/22/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, Suite 800 |
|
30046519 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
01/07/03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2007 3710307 |
|
|
|
|
|
|
|
|
10/02/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, Suite 800 |
|
30046675 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
01/07/03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2007 3710331 |
|
|
|
|
|
|
|
|
10/02/07 |
|
|
16
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Charter One Vendor Finance, LLC |
|
Initial |
|
E(S) |
|
|
|
|
2300 Cabot Drive |
|
30399892 |
|
|
|
|
|
|
Suite 355 |
|
01/24/03 |
|
|
|
|
|
|
Lisle, IL 60532 |
|
Assignment |
|
|
|
|
|
|
|
|
31776387 |
|
|
|
|
|
|
|
|
06/04/03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2007 4229224 |
|
|
|
|
|
|
|
|
11/06/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, |
|
32278722 |
|
|
|
|
|
|
Suite 800 |
|
09/03/03 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
Continuation |
|
|
|
|
|
|
|
|
2008 1673589 |
|
|
|
|
|
|
|
|
05/14/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Siemens Financial Services, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
170 Wood Avenue South |
|
32554213 |
|
|
|
|
|
|
Iselin, NJ 08830 |
|
09/22/03 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
40850539 |
|
|
|
|
|
|
|
|
03/25/04 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
40850547 |
|
|
|
|
|
|
|
|
03/25/04 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2008 2682969 |
|
|
|
|
|
|
|
|
08/05/08 |
|
|
17
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, |
|
32912783 |
|
|
|
|
|
|
Suite 800 |
|
11/05/03 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
Continuation |
|
|
|
|
|
|
|
|
2008 2371332 |
|
|
|
|
|
|
|
|
07/10/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, |
|
40227258 |
|
|
|
|
|
|
Suite 800 |
|
01/27/04 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
Continuation |
|
|
|
|
|
|
|
|
2008 3618186 |
|
|
|
|
|
|
|
|
10/28/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Fleet Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
One Financial Plaza, 5th Floor |
|
42942128 |
|
|
|
|
|
|
Providence, RI 02903 |
|
10/13/04 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2009 2532346 |
|
|
|
|
|
|
|
|
08/07/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Fleet Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
One Financial Plaza, 5th Floor |
|
42942151 |
|
|
|
|
|
|
Providence, RI 02903 |
|
10/13/04 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2009 2532254 |
|
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|
|
|
|
|
|
08/07/09 |
|
|
18
|
|
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|
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|
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|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Wachovia Bank, National Association |
|
Initial |
|
A |
|
|
|
|
301 S. College Street |
|
43168764 |
|
|
|
|
|
|
Charlotte, NC 28288 |
|
11/05/04 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Continuation |
|
|
|
|
|
|
|
|
2009 2435318 |
|
|
|
|
|
|
|
|
07/30/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Crown Credit Company |
|
Initial |
|
E(S) |
|
|
|
|
40 S. Washington Street |
|
51895490 |
|
|
|
|
|
|
New Bremen, OH 45869 |
|
06/21/051 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Crown Credit Company |
|
Initial |
|
E(S) |
|
|
|
|
40 S. Washington Street |
|
53048890 |
|
|
|
|
|
|
New Bremen, OH 45869 |
|
10/03/05 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, Suite 800 |
|
53404481 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
11/01/05 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Crown Credit Company |
|
Initial |
|
E(S) |
|
|
|
|
40 S. Washington Street |
|
53685725 |
|
|
|
|
|
|
New Bremen, OH 45869 |
|
11/30/05 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, Suite 800 |
|
60231266 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
01/13/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
2400 East Katella, Suite 800 |
|
60451617 |
|
|
|
|
|
|
Anaheim, CA 92806 |
|
01/26/06 |
|
|
|
|
|
1 |
|
This filing was scheduled to lapse on June 21, 2010. To our
knowledge, it has not been continued. |
19
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
De Lage Landen Financial Services, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
111 Old Eagle School Road |
|
60886184 |
|
|
|
|
|
|
Wayne, PA 19087 |
|
03/15/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
National City Commercial Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
995 Dalton Ave. |
|
63011046 |
|
|
|
|
|
|
Cincinnati, OH 45203 |
|
08/29/06 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
IOS Capital |
|
Initial |
|
E(S) |
|
|
|
|
1738 Bass Rd. |
|
2007 |
|
|
|
|
|
|
Macon, GA 31210-1043 |
|
1225134 |
|
|
|
|
|
|
|
|
04/02/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
National City Commercial Capital Company, LLC |
|
Initial |
|
E(S) |
|
|
|
|
995 Dalton Ave. |
|
2007 |
|
|
|
|
|
|
Cincinnati, OH 45203 |
|
1324333 |
|
|
|
|
|
|
|
|
04/10/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
Equipment |
|
|
|
|
10 Riverview Drive |
|
2007 |
|
|
|
|
|
|
Dansbury, CT 06810 |
|
1949469 |
|
|
|
|
|
|
|
|
05/23/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Banc of America Leasing & Capital, LLC |
|
Initial |
|
E(S) |
|
|
|
|
One Financial Plaza |
|
2007 |
|
|
|
|
|
|
Providence, RI 02903 |
|
3636411 |
|
|
|
|
|
|
|
|
09/26/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
Equipment |
|
|
|
|
44 Old Ridgebury Rd. |
|
2007 |
|
|
|
|
|
|
Danbury, CT 06810 |
|
3653333 |
|
|
|
|
|
|
|
|
09/27/07 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Banc of America Leasing & Capital, LLC |
|
Initial |
|
E(S) |
|
|
|
|
231 South LaSalle Street, 8th Floor |
|
2007 |
|
|
|
|
|
|
Chicago, IL 60697 |
|
4724737 |
|
|
|
|
|
|
|
|
12/14/07 |
|
|
20
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(C) |
|
|
|
|
44 Old Ridgebury Rd. |
|
2008 |
|
|
|
|
|
|
Danbury, CT 06810 |
|
0691400 |
|
|
|
|
|
|
|
|
02/26/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
NCR Corporation |
|
Initial |
|
Products acquired |
|
|
|
|
1700 South Patterson Blvd. |
|
2008 |
|
from SP or financed |
|
|
|
|
Dayton, OH 45479 |
|
1678455 |
|
by SP |
|
|
|
|
|
|
05/15/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
First Bank of Highland Park |
|
Initial |
|
E(C) |
|
|
|
|
1835 First Street |
|
2008 |
|
|
|
|
|
|
Highland Park, IL 60035 |
|
1831658 |
|
|
|
|
|
|
|
|
05/29/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2008 |
|
|
|
|
|
|
|
|
3533815 |
|
|
|
|
|
|
|
|
10/14/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
2008 3533831 |
|
|
|
|
|
|
|
|
10/14/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
First Bank of Highland Park |
|
Initial |
|
E(S) |
|
|
|
|
1835 First Street |
|
2008 |
|
|
|
|
|
|
Highland Park, IL 60035 |
|
1842358 |
|
|
|
|
|
|
|
|
05/29/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2008 |
|
|
|
|
|
|
|
|
2910204 |
|
|
|
|
|
|
|
|
08/26/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
2008 |
|
|
|
|
|
|
|
|
2910378 |
|
|
|
|
|
|
|
|
08/26/08 |
|
|
21
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
First Bank of Highland Park |
|
Initial |
|
E(S) |
|
|
|
|
1835 First Street |
|
2008 |
|
|
|
|
|
|
Highland Park, IL 60035 |
|
2385993 |
|
|
|
|
|
|
|
|
07/11/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2008 3533849 |
|
|
|
|
|
|
|
|
10/14/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
2008 3533989 |
|
|
|
|
|
|
|
|
10/14/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
CSI Leasing, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
9990 Old Olive Street Road |
|
2008 |
|
|
|
|
|
|
Suite 101 |
|
2386157 |
|
|
|
|
|
|
St. Louis, MO 63141 |
|
07/11/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2008 3920632 |
|
|
|
|
|
|
|
|
11/24/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
CSI Leasing, Inc. |
|
Initial |
|
E(C) |
|
|
|
|
9990 Old Olive Street Road |
|
2008 |
|
|
|
|
|
|
Suite 101 |
|
2950614 |
|
|
|
|
|
|
St. Louis, MO 63141 |
|
08/29/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
CSI Leasing, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
9990 Old Olive Street Road |
|
2008 |
|
|
|
|
|
|
Suite 101 |
|
2950689 |
|
|
|
|
|
|
St. Louis, MO 63141 |
|
08/29/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2009 0531167 |
|
|
|
|
|
|
|
|
02/18/09 |
|
|
22
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Bank of the West |
|
Initial |
|
E(S) |
|
|
|
|
475 Sansome Street |
|
2008 |
|
|
|
|
|
|
San Francisco, CA 94111 |
|
2950804 |
|
|
|
|
|
|
|
|
08/29/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2009 0718186 |
|
|
|
|
|
|
|
|
02/20/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
2009 0723665 |
|
|
|
|
|
|
|
|
02/20/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Bank of the West |
|
Initial |
|
E(S) |
|
|
|
|
475 Sansome Street |
|
2008 |
|
|
|
|
|
|
San Francisco, CA 94111 |
|
2950887 |
|
|
|
|
|
|
|
|
08/29/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2009 1386496 |
|
|
|
|
|
|
|
|
04/24/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
2009 1390480 |
|
|
|
|
|
|
|
|
04/27/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
4 Park Plaza, Suite 1400 |
|
2008 |
|
|
|
|
|
|
Irvine, CA 92614 |
|
3168679 |
|
|
|
|
|
|
|
|
09/18/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Banc of America Leasing & Capital, LLC |
|
Initial |
|
E(S) |
|
|
|
|
231 South LaSalle Street, 8th Floor |
|
2008 |
|
|
|
|
|
|
Chicago, IL 60697 |
|
4025761 |
|
|
|
|
|
|
|
|
12/04/08 |
|
|
23
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
General Electric Capital Corporation |
|
Initial |
|
E(S) |
|
|
|
|
4 Park Plaza, Suite 1400 |
|
2008 |
|
|
|
|
|
|
Irvine, CA 92614 |
|
4333140 |
|
|
|
|
|
|
|
|
12/31/08 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
Bank of the West |
|
Initial |
|
E(S) |
|
|
|
|
475 Sansome Street |
|
2009 |
|
|
|
|
|
|
San Francisco, CA 94111 |
|
0264066 |
|
|
|
|
|
|
|
|
01/27/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2009 |
|
|
|
|
|
|
|
|
1452801 |
|
|
|
|
|
|
|
|
04/29/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Assignment |
|
|
|
|
|
|
|
|
2009 1459210 |
|
|
|
|
|
|
|
|
04/30/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
CSI Leasing, Inc. |
|
Initial |
|
E(C) |
|
|
|
|
9990 Old Olive Street Road |
|
2009 |
|
|
|
|
|
|
Suite 101 |
|
0805587 |
|
|
|
|
|
|
St. Louis, MO 63141 |
|
03/13/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
CSI Leasing, Inc. |
|
Initial |
|
E(C) |
|
|
|
|
9990 Old Olive Street Road |
|
2009 |
|
|
|
|
|
|
Suite 101 |
|
1170817 |
|
|
|
|
|
|
St. Louis, MO 63141 |
|
04/13/09 |
|
|
24
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir |
|
2009 |
|
|
|
|
|
|
Larkspur, CA 94939 |
|
2189584 |
|
|
|
|
|
|
|
|
07/08/09 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Amendment |
|
|
|
|
|
|
|
|
2009 3066450 |
|
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09/24/09 |
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Amendment |
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2009 3066799 |
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09/24/09 |
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Amendment |
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2009 3066989 |
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09/24/09 |
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25
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JURISDICTION |
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FILE NO./ |
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COLLATERAL |
DEBTOR(S) |
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SEARCHED |
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SECURED PARTY OR PLAINTIFF |
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FILE DATE |
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DESCRIPTION |
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|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir |
|
2009 |
|
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Larkspur, CA 94939 |
|
2189618 |
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07/08/09 |
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Amendment |
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2009 4097504 |
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12/22/09 |
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Amendment |
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2009 4100761 |
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12/22/09 |
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Amendment |
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2009 4105232 |
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12/22/09 |
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Amendment |
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2009 4117575 |
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12/23/09 |
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|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(C) |
|
|
|
|
801 Larkspur Landing Cir |
|
2009 |
|
|
|
|
|
|
Larkspur, CA 94939 |
|
3024129 |
|
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09/22/09 |
|
|
26
|
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|
JURISDICTION |
|
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|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir |
|
2009 |
|
|
|
|
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|
Larkspur, CA 94939 |
|
3024202 |
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09/22/09 |
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|
Amendment |
|
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|
2010 1184757 |
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|
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|
04/06/10 |
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|
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|
|
|
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|
Amendment |
|
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|
2010 1281892 |
|
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|
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|
04/13/10 |
|
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|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir |
|
2009 |
|
|
|
|
|
|
Larkspur, CA 94939 |
|
3034599 |
|
|
|
|
|
|
|
|
09/22/09 |
|
|
|
|
|
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|
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|
Amendment |
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|
2010 1184740 |
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04/06/10 |
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|
Amendment |
|
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|
2010 1190804 |
|
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04/06/10 |
|
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|
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|
Amendment |
|
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|
2010 1190812 |
|
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|
04/06/10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(C) |
|
|
|
|
801 Larkspur Landing Cir |
|
2009 |
|
|
|
|
|
|
Larkspur, CA 94939 |
|
3035059 |
|
|
|
|
|
|
|
|
09/22/09 |
|
|
27
|
|
|
|
|
|
|
|
|
|
|
JURISDICTION |
|
|
|
FILE NO./ |
|
COLLATERAL |
DEBTOR(S) |
|
SEARCHED |
|
SECURED PARTY OR PLAINTIFF |
|
FILE DATE |
|
DESCRIPTION |
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir |
|
2010 |
|
|
|
|
|
|
Larkspur, CA 94939 |
|
2112476 |
|
|
|
|
|
|
|
|
6/17/10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir Larkspur, CA 94939 |
|
2010 2112484 |
|
|
|
|
|
|
|
|
6/17/10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir |
|
2010 |
|
|
|
|
|
|
Larkspur, CA 94939 |
|
2112500 |
|
|
|
|
|
|
|
|
6/17/10 |
|
|
|
|
|
|
|
|
|
|
|
|
|
Delaware SOS |
|
US Bancorp Equipment Finance, Inc. |
|
Initial |
|
E(S) |
|
|
|
|
801 Larkspur Landing Cir Larkspur, CA 94939 |
|
2010 2120107 |
|
|
|
|
|
|
|
|
6/17/10 |
|
|
28
SCHEDULE 11.3 EXISTING LOANS, ADVANCES AND INVESTMENTS
Notes Receivable
|
|
|
|
|
Description |
|
Existing Balance 06/06/2010 |
|
|
Sedrack |
|
|
160,073 |
|
Lucian Gray |
|
|
135,000 |
|
Sood, Nematzadeh SBF Foods, LLC |
|
|
2,255,390 |
|
Flores/Yadav Central Coast Restaurants |
|
|
410,338 |
|
Yadav/Flores Central Coast Restaurants |
|
|
400,000 |
|
Ibrahim |
|
|
300,000 |
|
Keshani |
|
|
2,000,000 |
|
Mehta |
|
|
1,700,000 |
|
Sood |
|
|
370,714 |
|
Sood |
|
|
308,170 |
|
Flores |
|
|
218,005 |
|
Scanlan Other LT Rec |
|
|
95,000 |
|
Franchisee XP Install |
|
|
357,913 |
|
|
Total: |
|
$ |
8,710,603 |
|
Joint Ventures
Jack In the Box Inc. holds a 12.21% interest in Woodway Joint Venture, a Florida joint venture.
Jack In the Box Inc. holds a 16.7% interest in San Antonio #849 Joint Venture, a Florida joint
venture.
29