EXHIBIT 10.15
EXECUTION COPY
INTERCREDITOR AGREEMENT
dated as of December 19, 2003
by and between
THE BANK OF NEW YORK,
as Note Collateral Agent
and
SUNTRUST BANK,
as Credit Agreement Agent
INTERCREDITOR
AGREEMENT
This INTERCREDITOR AGREEMENT, dated
as of December 19, 2003 (as the same may be amended, modified or
supplemented from time to time, this “ Agreement
”), is by and between: (i) THE BANK OF NEW YORK, as
Collateral Agent under the Indenture (as defined below) for the
benefit of the holders from time to time of the Note Obligations
(in such capacity, the “ Note Collateral Agent
”) and (ii) SUNTRUST BANK, as Administrative Agent (in such
capacity, the “ Credit Agreement Agent ”) under
the Credit Agreement (as defined below) for the benefit of the
holders from time to time of the Priority Lien Obligations. Except
as otherwise expressly provided herein, capitalized terms used but
not otherwise defined in this Agreement shall have the meanings set
forth in the Indenture.
RECITALS
WHEREAS, pursuant to a credit
agreement, dated as of December 29, 1999, entered into by El Pollo
Loco, Inc. (the “ Company ”) and EPL
Intermediate, Inc. (“ Parent ”) and led by the
Credit Agreement Agent, the Company and Parent (collectively, the
“ Grantors ”) have entered into, and may in the
future enter into, the Priority Lien Security Documents pursuant to
which the Grantors have granted, or will grant, the Credit
Agreement Agent a first priority security interest in the
Collateral;
WHEREAS, pursuant to an indenture,
dated of even date herewith (as the same may be amended, restated,
modified, supplemented, renewed, refunded, replaced or refinanced
from time to time, the “ Indenture ”), by and
between the Company, Parent and The Bank of New York as trustee (in
such capacity, the “ Trustee ”) for the benefit
of the holders of the Note Obligations, the Grantors have entered
into, and may in the future enter into, the Security Documents
pursuant to which the Grantors have granted, or will grant, the
Note Collateral Agent a security interest in the Collateral (other
than Excluded Assets) which security interest is subordinate to the
security interest of the Priority Lien;
WHEREAS, pursuant to Section 10.04
of the Indenture, by acceptance of its Notes, each Holder has
agreed to be bound by this Agreement;
WHEREAS, the parties hereto desire
to enter into this Agreement to confirm their relative rights with
respect to the Collateral as provided in this Agreement;
NOW THEREFORE, in consideration of
the premises, covenants and agreements as herein set forth and for
other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereto hereby agree as
follows:
AGREEMENT
ARTICLE 1.
DEFINITIONS
For purposes of this Agreement, the
terms listed in this Article 1 shall have the respective meanings
set forth in this Article 1:
“ Additional Notes
” means any Notes issued under the Indenture after the date
of the Indenture, as part of the same series as the Initial
Notes.
“ Affiliate ” of
any specified Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common
control with such specified Person. For purposes of this
definition, “control,” as used with respect to any
Person, means the possession, directly or indirectly, of the power
to direct or cause the direction of the management or policies of
such Person, whether through the ownership of voting securities, by
agreement or otherwise. For purposes of this definition, the terms
“controlling,” “controlled by” and
“under common control with” have correlative
meanings.
“ Asset Sale ”
means:
(1) the sale, lease, conveyance or
other disposition of any assets or rights; provided that the sale,
lease, conveyance or other disposition of all or substantially all
of the assets of the Company and its Subsidiaries taken as a whole
will be governed by the provisions of Section 4.15 of the Indenture
and/or the provisions of Section 5.01 of the Indenture and not by
the provisions of Section 4.10 of the Indenture; and
(2) the issuance or sale of Equity
Interests in any of the Company’s Restricted
Subsidiaries.
Notwithstanding the preceding, none
of the following items will be deemed to be an Asset
Sale:
(1) any single transaction or series
of related transactions that involves assets having a Fair Market
Value of less than $2.5 million;
(2) a transfer of assets between or
among the Company and its Restricted Subsidiaries;
(3) an issuance of Equity Interests
by a Restricted Subsidiary of the Company to the Company or to a
Wholly-Owned Restricted Subsidiary of the Company;
(4) the sale or lease of products,
services or accounts receivable in the ordinary course of business
and any sale or other disposition of damaged, worn-out or obsolete
assets in the ordinary course of business;
(5) the sale or other disposition of
cash or Cash Equivalents;
(6) a Restricted Payment that does
not violate Section 4.07 of the Indenture or a Permitted
Investment;
(7) dispositions of Investments or
receivables in connection with the compromise, settlement or
collection thereof in the ordinary course of business or in
bankruptcy or similar proceedings and exclusive of factoring or
similar arrangements;
(8) the licensing or sublicensing of
intellectual property or other general
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intangibles and licenses, leases or
subleases of other property in the ordinary course of business
which do not materially interfere with the business of the Company
and its Restricted Subsidiaries;
(9) the sale or other disposition of
restaurants in the ordinary course of business consistent with past
practice;
(10) the sale of Equity Interests of
an Unrestricted Subsidiary; and
(11) the sale of Permitted
Investments (other than sales of Equity Interests of any of the
Company’s Restricted Subsidiaries) made by the Company or any
Restricted Subsidiary after the date of the Indenture, if such
Permitted Investments were (a) received in exchange for, or
purchased out of the net cash proceeds of the substantially
concurrent sale (other than to a Subsidiary of the Company) of,
Equity Interests of the Company (other than Disqualified Stock) or
(b) received in the form of, or were purchased from the proceeds
of, a substantially concurrent contribution of common equity
capital to the Company.
“ Bankruptcy Law
” means Title 11, U.S. Code or any similar federal or state
law for the relief of debtors.
“ Business Day ”
means any day other than a Legal Holiday.
“ Capital Lease
Obligations ” means, at the time any determination is to
be made, the amount of the liability in respect of a capital lease
that would at that time be required to be capitalized on a balance
sheet prepared in accordance with GAAP, and the Stated Maturity
thereof shall be the date of the last payment of rent or any other
amount due under such lease prior to the first date upon which such
lease may be prepaid by the lessee without payment of a
penalty.
“ Capital Stock ”
means:
(1) in the case of a corporation,
corporate stock;
(2) in the case of an association or
business entity, any and all shares, interests, participations,
rights or other equivalents (however designated) of corporate
stock;
(3) in the case of a partnership or
limited liability company, partnership interests (whether general
or limited) or membership interests; and
(4) any other interest or
participation that confers on a Person the right to receive a share
of the profits and losses of, or distributions of assets of, the
issuing Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt
securities include any right of participation with Capital
Stock,
including, in each case, Preferred
Stock.
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“ Cash Equivalents
” means:
(1) United States
dollars;
(2) securities issued or directly
and fully guaranteed or insured by the United States government or
any agency or instrumentality of the United States government
(provided that the full faith and credit of the United States is
pledged in support of those securities) having maturities of not
more than six months from the date of acquisition;
(3) certificates of deposit and
eurodollar time deposits with maturities of six months or less from
the date of acquisition, bankers’ acceptances with maturities
not exceeding six months and overnight bank deposits, in each case,
with any lender party to a Credit Facility or with any domestic
commercial bank having capital and surplus in excess of $500.0
million and a Thomson Bank Watch Rating of “B” or
better;
(4) repurchase obligations with a
term of not more than seven days for underlying securities of the
types described in clauses (2) and (3) above entered into with any
financial institution meeting the qualifications specified in
clause (3) above;
(5) commercial paper having one of
the two highest ratings obtainable from Moody’s Investors
Service, Inc. or Standard & Poor’s Rating Services and in
each case maturing within six months after the date of acquisition;
and
(6) money market funds at least 95%
of the assets of which constitute Cash Equivalents of the kinds
described in clauses (1) through (5) of this definition.
“ Collateral ”
means all present and future properties and assets of the Company
or any other Obligor upon which a security interest is granted to
secure Note Obligations pursuant to the Security
Documents.
“ Credit Agreement
” means that certain Credit Agreement, dated December 29,
1999, by and among the Company, Parent, SunTrust Bank, as agent,
and the other lenders party thereto from time to time, including
any related notes, guarantees, collateral documents, instruments
and agreements executed in connection therewith, and in each case
as amended, restated, modified, renewed, refunded, replaced
(whether upon or after termination or otherwise) or refinanced
(including by means of sales of debt securities to institutional
investors) in whole or in part from time to time.
“ Credit Agreement
Agent ” means SunTrust Bank, in its capacity as
Collateral Agent under the Priority Lien Security Documents, and
any successor thereto in such capacity.
“ Credit Bid Rights
” means, in respect of any order relating to a sale of assets
in any Insolvency or Liquidation Proceeding, that:
(1) such order grants the Holders of
Notes (individually and in any combination) the right to bid at the
sale of such assets and the right to offset such holders’
claims secured by Note Liens upon such assets against the purchase
price of such assets if:
(a) the bid of such holders is the
highest bid or otherwise determined by the court to be the best
offer at the sale; and
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(b) the bid of such holders includes
a cash purchase price component payable at the closing of the sale
in an amount that would be sufficient on the date of the closing of
the sale, if such amount were applied to such payment on such date,
to pay all unpaid Priority Lien Obligations (except Unasserted
Contingent Obligations) and to satisfy all liens entitled to
priority over the Priority Liens that attach to the proceeds of the
sale, and such order requires or permits such amount to be so
applied; and
(2) such order allows the claims of
the Holders of Notes in such Insolvency or Liquidation proceeding
to the extent required for the grant of such rights.
“ Credit Facilities
” means, one or more debt facilities (including, without
limitation, the Credit Agreement) or commercial paper facilities,
in each case with banks or other institutional lenders providing
for revolving credit loans, term loans, receivables financing
(including through the sale of receivables to such lenders or to
special purpose entities formed to borrow from such lenders against
such receivables) or letters of credit, in each case, as amended,
restated, modified, renewed, refunded, replaced (whether upon or
after termination or otherwise) or refinanced (including by means
of sales of debt securities to institutional investors) in whole or
in part from time to time.
“ Default ” means
any event that is, or with the passage of time or the giving of
notice or both would be, an Event of Default.
“ Discharge of the Priority
Lien Obligations ” means termination of all commitments
to extend credit that would constitute Priority Lien Debt, payment
in full in cash of the principal of and interest and premium (if
any) on all Priority Lien Debt (except undrawn letters of credit),
discharge or cash collateralization (at the lower of (1) 108% of
the aggregate undrawn amount and (2) the percentage of the
aggregate undrawn amount required for release of liens under the
terms of the applicable Priority Lien Document) of all letters of
credit outstanding under any Priority Lien Debt, and payment in
full in cash of all other Priority Lien Obligations (except
Unasserted Contingent Obligations) that are outstanding and unpaid
at the time the Priority Lien Debt is paid in full in cash. “
Discharged ” shall have the correlative
meaning.
“ Disqualified Stock
” means any Capital Stock that, by its terms (or by the terms
of any security into which it is convertible, or for which it is
exchangeable, in each case at the option of the holder of the
Capital Stock), or upon the happening of any event, matures or is
mandatorily redeemable, pursuant to a sinking fund obligation or
otherwise, or redeemable at the option of the holder of the Capital
Stock, in whole or in part, on or prior to the date that is 91 days
after the date on which the Notes mature. Notwithstanding the
preceding sentence, any Capital Stock that would constitute
Disqualified Stock solely because the holders of the Capital Stock
have the right to require the Company to repurchase such Capital
Stock upon the occurrence of a change of control or an asset sale
shall not constitute Disqualified Stock if the asset sale or change
of control provisions applicable to such Capital Stock are not more
favorable to the holders of such Capital Stock than the provisions
of Sections 4.10 and 4.15 of the
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Indenture. The amount of Disqualified Stock
deemed to be outstanding at any time for purposes of the Indenture
will be the maximum amount that the Company and its Restricted
Subsidiaries may become obligated to pay upon the maturity of, or
pursuant to any mandatory redemption provisions of, such
Disqualified Stock, exclusive of accrued dividends.
“ Domestic Subsidiary
” means any Restricted Subsidiary of the Company that was
formed under the laws of the United States or any state of the
United States or the District of Columbia or that guarantees or
otherwise provides direct credit support for any Indebtedness of
the Company.
“ Equity Interests
” means Capital Stock and all warrants, options or other
rights to acquire Capital Stock (but excluding any debt security
that is convertible into, or exchangeable for, Capital
Stock).
“ Event of Default
” has the meaning set forth in Article 6 of the
Indenture.
“ Excluded Assets
” means:
(1) any lease, license, contract,
property right or agreement to which the Company or any Obligor is
a party or any of its rights or interests thereunder if and only
for so long as the grant of a security interest under the security
documents shall constitute or result in a breach, termination or
default under any such lease, license, contract, property right or
agreement (other than to the extent that any such term would be
rendered ineffective pursuant to Sections 9-406, 9-407, 9-408 or
9-409 of the Uniform Commercial Code of any relevant jurisdiction
or any other applicable law or principles of equity);
provided that such lease, license, contract, property right
or agreement shall be an Excluded Asset only to the extent and for
so long as the consequences specified above shall result and shall
cease to be an Excluded Asset and shall become subject to the
security interest granted under the security documents immediately
and automatically, at such time as such consequences shall no
longer result;
(2) any Equity Interests of any
future Foreign Subsidiary;
(3) any interests in real property
leased by the Company or any Restricted Subsidiary;
(4) assets subject to Liens
described in clauses (6) and (16)(b) of the definition of
“Permitted Liens” contained in the
Indenture;
(5) so long as any Priority Lien
Obligations exist that have not been Discharged, any other assets
or properties acquired by the Company or any Guarantor after the
date of the Indenture to the extent that the Company or any
Guarantor fails to grant a Priority Lien therein to secure the
Prior Lien Obligations; and
(6) any assets held directly by
Parent other than Capital Stock of the Company;
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(7) any assets or properties in
which the Note Collateral Agent is required to release its Note
Liens securing Note Obligations pursuant to Section 3.6 of this
Agreement
provided that any property in which the Company or any
Guarantor is required to grant a security interest in favor of the
Note Collateral Agent to secure the Note Obligations pursuant to
the third paragraph of Section 4.12 of the Indenture shall not be
an Excluded Asset.
“ Fair Market Value
” means the value that would be paid by a willing buyer to an
unaffiliated willing seller in a transaction not involving distress
or necessity of either party, determined in good faith by the Board
of Directors of the Company, which determination will be conclusive
(unless otherwise provided in the Indenture).
“ Foreign Subsidiary
” means any Restricted Subsidiary of the Company that is not
a Domestic Subsidiary.
“ GAAP ” means
generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board or
in such other statements by such other entity as have been approved
by a significant segment of the accounting profession, which are in
effect on the date of the Indenture.
“ Guarantee ”
means a guarantee other than by endorsement of negotiable
instruments for collection in the ordinary course of business,
direct or indirect, in any manner including, without limitation, by
way of a pledge of assets or through letters of credit or
reimbursement agreements in respect thereof, of all or any part of
any Indebtedness (whether arising by virtue of partnership
arrangements, or by agreements to keep-well, to purchase assets,
goods, securities or services, to take or pay or to maintain
financial statement conditions or otherwise).
“ Guarantors ”
means any Subsidiary of the Company that executes a Note Guarantee
in accordance with the provisions of the Indenture and their
respective successors and assigns, in each case, until the Note
Guarantee of such Person has been released in accordance with the
provisions of the Indenture.
“ Hedging Obligations
” means, with respect to any specified Person, the
obligations of such Person under:
(1) interest rate swap agreements
(whether from fixed to floating or from floating to fixed),
interest rate cap agreements and interest rate collar
agreements;
(2) other agreements or arrangements
designed to manage interest rates or interest rate risk;
and
(3) other agreements or arrangements
designed to protect such Person against fluctuations in currency
exchange rates or commodity prices.
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“ Holder ” means
a Person in whose name a Note is registered.
“ Indebtedness ”
means, with respect to any specified Person, any indebtedness of
such Person (excluding accrued expenses and trade payables),
whether or not contingent:
(1) in respect of borrowed
money;
(2) evidenced by bonds, notes,
debentures or similar instruments or letters of credit (or
reimbursement agreements in respect thereof);
(3) in respect of banker’s
acceptances;
(4) representing Capital Lease
Obligations;
(5) representing the balance
deferred and unpaid of the purchase price of any property or
services due more than six months after such property is acquired
or such services are completed; or
(6) representing any Hedging
Obligations,
if and to the extent any of the preceding items
(other than letters of credit and Hedging Obligations) would appear
as a liability upon a balance sheet of the specified Person
prepared in accordance with GAAP. In addition, the term
“Indebtedness” includes (a) all Indebtedness of others
secured by a Lien on any asset of the specified Person (whether or
not such Indebtedness is assumed by the specified Person), but only
to the extent of the lesser of (a) the Fair Market Value of the
assets subject to such Lien, or (b) the amount of the Indebtedness
secured by such Lien and (b) to the extent not otherwise included,
the Guarantee by the specified Person of any Indebtedness of any
other Person.
“ Initial Notes ”
means the first $110.0 million aggregate principal amount of Notes
issued under the Indenture on the date of the Indenture.
“ Insolvency or Liquidation
Proceeding ” means:
(1) any case commenced by or against
the Company or any other Obligor under any Bankruptcy Law, any
other proceeding for the reorganization, recapitalization or
adjustment or marshalling of the assets or liabilities of the
Company or any other Obligor, any receivership or assignment for
the benefit of creditors relating to the Company or any other
Obligor or any similar case or proceeding relative to the Company
or any other Obligor or its creditors, as such, in each case
whether or not voluntary;
(2) any liquidation, dissolution,
marshalling of assets or liabilities or other winding up of or
relating to the Company or any other Obligor, in each case whether
or not voluntary and whether or not involving bankruptcy or
insolvency; or
(3) any other proceeding of any type
or nature in which substantially all claims of creditors of the
Company or any other Obligor are determined and any payment or
distribution is or may be made on account of such
claims.
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“ Investments ”
means, with respect to any Person, all direct or indirect
investments by such Person in other Persons (including Affiliates)
in the forms of loans (including Guarantees or other obligations),
advances or capital contributions (excluding commission, travel and
similar advances to officers and employees made in the ordinary
course of business and advances to customers in the ordinary course
of business that are recorded as accounts receivable), purchases or
other acquisitions for consideration of Indebtedness, Equity
Interests or other securities, together with all items that are or
would be classified as investments on a balance sheet prepared in
accordance with GAAP. If the Company or any Subsidiary of the
Company sells or otherwise disposes of any Equity Interests of any
Restricted Subsidiary of the Company such that, after giving effect
to any such sale or disposition, such Person is no longer a
Restricted Subsidiary of the Company, the Company will be deemed to
have made an Investment on the date of any such sale or disposition
equal to the Fair Market Value of the Company’s Investments
in such Restricted Subsidiary that were not sold or disposed of in
an amount determined as provided in Section 4.07(d) of the
Indenture. The acquisition by the Company or any Subsidiary of the
Company of a Person that holds an Investment in a third Person will
be deemed to be an Investment by the Company or such Subsidiary in
such third Person in an amount equal to the Fair Market Value of
the Investments held by the acquired Person in such third Person in
an amount determined as provided in Section 4.07(d) of the
Indenture. Except as otherwise provided in the Indenture, the
amount of an Investment will be determined at the time the
Investment is made and without giving effect to subsequent changes
in value.
“ Legal Holiday ”
means a Saturday, a Sunday or a day on which banking institutions
are authorized by law, regulation or executive order to remain
closed (1) in the City of New York, (2) in the city in which the
Corporate Trust Office of the Trustee is located, (3) at a place of
payment or (4) at any other location identified in the definition
of “Business Day” (or the equivalent thereof) in the
applicable Priority Lien Document; provided that the Trustee
and the Note Collateral Agent have previously been advised of such
location in writing; and provided , further , that,
for purposes of the Credit Agreement, such location shall be
Atlanta, Georgia, unless and until the Trustee and the Note
Collateral Agent are notified in writing of any substitute or
additional location. If a payment date is a Legal Holiday at a
place of payment, payment may be made at that place on the next
succeeding day that is not a Legal Holiday, and no interest shall
accrue on such payment for the intervening period.
“ Lenders ”
means, at any time, the parties then holding (or committed to
provide) loans, letters of credit or other extensions of credit or
obligations that constitute (or when provided will constitute)
Priority Lien Obligations.
“ Lien ” means,
with respect to any asset, any mortgage, lien, pledge, charge,
security interest or encumbrance of any kind in respect of such
asset, whether or not filed, recorded or otherwise perfected under
applicable law, including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any
filing of or agreement to give any financing statement under the
Uniform Commercial Code (or equivalent statutes) of any
jurisdiction.
“ Liquidated Damages
” means all liquidated damages then owing pursuant to the
Registration Rights Agreement.
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“ Net Proceeds ”
means the aggregate cash proceeds received by the Company or any of
its Restricted Subsidiaries in respect of any Asset Sale
(including, without limitation, any cash received upon the sale or
other disposition of any non-cash consideration received in any
Asset Sale), net of the direct costs relating to such Asset Sale,
including, without limitation, legal, accounting and investment
banking fees and discounts, and sales commissions, and any other
fees and expenses, including without limitation relocation expenses
incurred as a result of the Asset Sale, taxes paid or payable as a
result of the Asset Sale, in each case, after taking into account
any available tax credits or deductions and any tax sharing
arrangements, amounts required to be applied to the repayment of
Indebtedness, other than Indebtedness under a Credit Facility,
secured by a Lien on the asset or assets that were the subject of
such Asset Sale and any reserve for adjustment in respect of the
sale price of such asset or assets established in accordance with
GAAP.
“ Note Collateral Agent
” means The Bank of New York, a New York banking corporation,
in its capacity as collateral agent under the Security Documents,
together with its successors in such capacity.
“ Note Debt ”
means:
(1) the Initial Notes;
and
(2) any Additional Notes that are
permitted to be incurred under Section 4.09 of the
Indenture
provided , that the satisfaction of the requirement in
clause (2) shall be conclusively established, for purposes of
entitling the holders of Additional Notes to share equally and
ratably with the other holders of Note Obligations in the benefits
and proceeds of the Note Collateral Agent’s security
interests in the Collateral, if the Company delivers to the Note
Collateral Agent an Officers’ Certificate stating that such
requirement has been satisfied and that the Additional Notes
constitute “Note Obligations”, and the holders of such
Additional Notes and Obligations in respect thereof will be
entitled to rely conclusively thereon.
“ Note Documents
” means, collectively, the Indenture, the Notes (including
any Additional Notes), the Note Guarantees, the Security Documents,
the Intercreditor Agreement and all agreements binding on any
Obligor related thereto.
“ Note Lien ”
means a Lien granted pursuant to a Security Document by the Company
or any other Obligor to the Note Collateral Agent (or any other
holder, or representative of holders, of Note Obligations) upon any
property or assets of the Company or such Obligor to secure Note
Obligations.
“ Note Obligations
” means Note Debt and all other Obligations in respect
thereof, including, without limitation, any fees, indemnification
or reimbursement obligations owing to the Note Holders, the Trustee
or the Note Collateral Agent, as applicable.
“ Notes ” means
the 9 ¼% Senior Secured Notes due 2009 (including, without
limitation, Additional Notes).
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“ Obligations ”
means:
(1) any principal (including
reimbursement obligations with respect to letters of credit whether
or not drawings have been made thereon), interest (including any
interest accruing at the then applicable rate provided in any
applicable Secured Debt Document after the maturity of the
Indebtedness thereunder and any reimbursement obligations therein
and interest accruing at the then applicable rate provided in any
applicable Secured Debt Document after the filing of any petition
in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, whether or not a claim for
post-filing or post-petition interest is allowed in such
proceeding), penalties, fees, indemnifications, reimbursements,
damages and other liabilities payable under the documentation
governing any Indebtedness;
(2) the obligation to pay an amount
equal to all damages that a court shall determine any holder of the
applicable Secured Debt has suffered by reason of a breach by the
applicable obligor thereunder of any obligation, covenant or
undertaking with respect to any applicable Secured Debt Document;
and
(3) any net obligations of the
obligor under any applicable Secured Debt Document to any holder of
Secured Debt (or any representative on its behalf) or any Affiliate
thereof under any interest hedge agreement or foreign exchange
agreement.
“ Obligor ” means
the Company, Parent and each Restricted Subsidiary of the Company
(if any) that at any time guarantees or provides collateral
security or credit support for any Note Obligations.
“ Officer ”
means, with respect to any Person, the Chairman of the Board, the
Chief Executive Officer, the President, the Chief Operating
Officer, the Chief Financial Officer, the Treasurer, any Assistant
Treasurer, the Controller, the Secretary or any Vice-President of
such Person.
“ Officers’
Certificate ” means a certificate signed on behalf of the
Company by two Officers of the Company, one of whom must be the
principal executive officer, the principal financial officer, the
treasurer or the principal accounting officer of the Company, that
meets the requirements of Section 13.05 of the
Indenture.
“ Opinion of Counsel
” means an opinion from legal counsel who is reasonably
acceptable to the Trustee, that meets the requirements of Section
13.05 of the Indenture. The counsel may be an employee of or
counsel to the Company, any Subsidiary of the Company or the
Trustee.
“ Permitted Investments
” means:
(1) any Investment in the Company or
in a Restricted Subsidiary of the Company that is a
Guarantor;
(2) any Investment in Cash
Equivalents;
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(3) any Investment by the Company or
any Restricted Subsidiary of the Company in a Person, if as a
result of such Investment:
(a) such Person becomes a Restricted
Subsidiary of the Company and a Guarantor; or
(b) such Person is merged,
consolidated or amalgamated with or into, or transfers or conveys
substantially all of its assets to, or is liquidated into, the
Company or a Restricted Subsidiary of the Company that is a
Guarantor;
(4) any Investment made prior to the
date of the Indenture;
(5) any Investment made as a result
of the receipt of non-cash consideration from an Asset Sale that
was made pursuant to and in compliance with Section 4.10 of the
Indenture;
(6) any acquisition of assets or
Capital Stock solely in exchange for, or out of the net cash
proceeds received from, the issuance of Equity Interests (other
than Disqualified Stock) of the Company; provided that the amount
of any such net cash proceeds that are utilized for any such
Investment pursuant to this clause (6) will be excluded from clause
(3)(b) of Section 4.07(a) of the Indenture;
(7) any Investments received in
compromise or resolution of (A) obligations of trade creditors,
franchisees or customers that are accounts receivable of the
Company or any of its Restricted Subsidiaries, including pursuant
to any plan of reorganization or similar arrangement upon the
bankruptcy or insolvency of any trade creditor, franchisee or
customer; or (B) litigation, arbitration or other disputes with
Persons who are not Affiliates;
(8) Investments represented by
Hedging Obligations;
(9) endorsements of negotiable
instruments and documents in the ordinary course of
business;
(10) pledges or deposits permitted
under clause (9) of the definition of “Permitted Liens”
contained in the Indenture;
(11) repurchases of the
Notes;
(12) payroll, travel and similar
advances to cover matters that are expected at the time of such
advances ultimately to be treated as expenses for accounting
purposes and that are made in the ordinary course of
business;
(13) loans or advances to employees
made in the ordinary course of business of the Company or such
Restricted Subsidiary;
(14) receivables owing to the
Company or any Restricted Subsidiary if created or acquired in the
ordinary course of business and payable or dischargeable in
accordance
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with customary trade terms as the
Company or such Restricted Subsidiary deems reasonable under the
circumstances; and
(15) other Investments in any Person
other than an Affiliate of the Company having an aggregate Fair
Market Value (measured on the date each such Investment was made
and without giving effect to subsequent changes in value), when
taken together with all other Investments made pursuant to this
clause (15) that are at the time outstanding not to exceed $5.0
million.
“ Person ” means
any individual, corporation, partnership, joint venture,
association, joint-stock company, trust, unincorporated
organization, limited liability company or government or other
entity.
“ Pledged Collateral
” shall mean any tangible property in the possession of the
Priority Lien Collateral Agent (or its agents or bailees) in which
a security interest is perfected by such possession, including,
without limitation, any investment property, cash collateral
account, deposit account, electronic chattel paper or letter of
credit rights or other Collateral as to which the Priority Lien
Collateral Agent (or its agents or bailees) has control and in
which a security interest is perfected by such control. For
purposes hereof, the terms “investment property”,
“deposit account”, “electronic chattel
paper” and “letter of credit rights” shall have
the meanings given such terms in the New York Uniform Commercial
Code, as in effect on the date hereof.
“ Preferred Stock
” means any Equity Interest with preferential right of
payment (1) of dividends, or (2) upon liquidation, dissolution or
winding up of the issuer of such Equity Interest.
“ Priority Lien ”
means a Lien granted pursuant to a Priority Lien Security Document
by the Company or any other Obligor to any holder, or
representative of holders, of Priority Lien Obligations upon any
property or assets of the Company or such Obligor to secure
Priority Lien Obligations.
“ Priority Lien Collateral
Agent ” means the Credit Agreement Agent or, after all
Priority Lien Obligations in respect of the Credit Agreement have
been repaid in full, a single representative of all holders of
Priority Liens most recently designated by the Company in an
Officers’ Certificate delivered to the Trustee and the Note
Collateral Agent or the successor of such representative in its
capacity as such.
“ Priority Lien Debt
” means the principal amount of any Indebtedness which, when
incurred (or, in the case of any reimbursement obligation for a
letter of credit issued under any Credit Facility, when such letter
of credit was issued), either (a) was permitted to be secured by
Liens permitted by clause (1), (16)(a) or (18) of the definition of
“Permitted Liens” contained in the Indenture or (b) was
incurred (or, in the case of any such reimbursement obligation,
relates to a letter of credit that was issued) upon delivery to the
Priority Lien Collateral Agent and the Note Collateral Agent of an
Officers’ Certificate to the effect that, at the time of such
incurrence, such Indebtedness was permitted to be secured by Liens
permitted by clause (1), (16)(a) or (18) of the definition of
“Permitted Liens” contained in the Indenture, including
without limitation
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any such Indebtedness incurred in any insolvency
or liquidation proceeding to the extent constituting Indebtedness
permitted to be secured by Liens permitted by clause (1), (16)(a)
or (18) of the definition of “Permitted Liens”
contained in the Indenture (it being agreed that, for purposes of
qualifying as “Priority Lien Debt,” any loan advanced
or letter of credit issued under a line of credit will be deemed
“incurred” at the time the Credit Facility governing
such Indebtedness is entered into); provided that any holder of
Priority Lien Debt and the Priority Lien Collateral Agent shall be
conclusively entitled to rely on an Officers’ Certificate
from the Company addressed to any such holder or the Priority Lien
Collateral Agent (a copy of which Officers’ Certificate is
provided substantially concurrently to the Note Collateral Agent
and the Trustee) that any borrowings, issuances of letters of
credit or other extensions of credit under any Credit Facility were
incurred, and are permitted to be incurred, under the terms of the
Indenture.
“ Priority Lien
Documents ” means the Credit Agreement, the Priority Lien
Security Documents and all other agreements governing, securing or
relating to any Priority Lien Obligations.
“ Priority Lien
Obligations ” means the Priority Lien Debt and all other
Obligations of the Company or any Obligor under the Priority Lien
Documents.
“ Priority Lien Security
Documents ” means one or more security agreements, pledge
agreements, collateral assignments, mortgages, deeds of trust or
other grants or transfers for security executed and delivered by
the Company or any other Obligor creating (or purporting to create)
a Lien upon property owned or to be acquired by the Company or any
other Obligor in favor of any holder or holders of Priority Lien
Debt, or any trustee, agent or representative acting for any such
holders, as security for any Priority Lien Obligations.
“ Registration Rights
Agreement ” means the Registration Rights Agreement,
dated as of December 19, 2003, between the Company and Jefferies
& Company, Inc., as such agreement may be amended, modified or
supplemented from time to time and, with respect to any Additional
Notes, one or more registration rights agreements among the Company
and the other parties thereto, as such agreement(s) may be amended,
modified or supplemented from time to time, relating to rights
given by the Company to the purchasers of Additional Notes to
register such Additional Notes under the Securities Act of 1933, as
amended.
“ Restricted Subsidiary
” of a Person means any Subsidiary of the referent Person
that is not an Unrestricted Subsidiary.
“ Secured Debt ”
means Note Debt and Priority Lien Debt.
“ Secured Debt Document
” means the Note Documents and the Priority Lien
Documents.
“ Security Documents
” means one or more security agreements, pledge agreements,
collateral assignments, mortgages, collateral agency agreements,
control agreements, deeds of trust or other grants or transfers for
security executed and delivered by the Company or any other Obligor
creating (or purporting to create) a Note Lien upon Collateral, in
each case, as amended, modified, renewed, restated or replaced, in
whole or in part, from time to time, in accordance with its
terms.
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“ Stated Maturity
” means, with respect to any installment of interest or
principal on any series of Indebtedness, the date on which the
payment of interest or principal was scheduled to be paid in the
documentation governing such Indebtedness as of the date of the
Indenture, and will not include any contingent obligations to
repay, redeem or repurchase any such interest or principal prior to
the date originally scheduled for the payment thereof.
“ Unasserted Contingent
Obligations ” means, at any time, Obligations for taxes,
costs, indemnifications, reimbursements, damages and other
liabilities (except (i) the principal of and interest and premium
(if any) on, and fees relating to, any Indebtedness, (ii)
contingent obligations to reimburse the issuer of an outstanding
letter of credit for amounts that may be drawn or paid thereunder
and (iii) any such contingent claims or demands as to which the
Priority Lien Collateral Agent or any holder of Priority Lien
Obligations has then notified the Company) in respect of which no
claim or demand for payment has been made at such time.
“ Wholly-Owned Restricted
Subsidiary ” of any specified Person means a Subsidiary
of such Person all of the outstanding Capital Stock or other
ownership interests of which (other than directors’
qualifying shares) will at the time be owned by such Person or by
one or more Wholly-Owned Restricted Subsidiaries of such Person and
one or more Wholly-Owned Restricted Subsidiaries of such
Person.
ARTICLE 2.
REPRESENTATIONS AND
WARRANTIES
Section 2.1 Representations and
Warranties of Note Collateral Agent . The Note Collateral Agent
represents and warrants on behalf of itself and any holders of the
Note Obligations on the date hereof that (1) it is authorized to
enter into this Agreement on behalf of itself and each holder of
Note Obligations, and (2) it has the corporate power and authority
and the legal right to execute and deliver and perform its
obligations under this Agreement and has taken all necessary
corporate action to authorize its execution, delivery and
performance of this Agreement.
Section 2.2 Representations and
Warranties of Credit Agreement Agent . The Credit Agreement
Agent represents and warrants on behalf of itself and the lenders
under the Credit Agreement on the date hereof that (1) it is
authorized to enter into this Agreement on behalf of itself and
such lenders, and (2) it has the corporate power and authority and
the legal right to execute and deliver and perform its obligations
under this Agreement and has taken all necessary corporate action
to authorize its execution, delivery and performance of this
Agreement.
ARTICLE 3.
INTERCREDITOR
RELATIONS
Section 3.1 Agreement for the
Benefit of Holders of Priority Liens . The Trustee and the Note
Collateral Agent agree, and each Holder of Notes by accepting a
Note agrees, that (1) the Note Liens are, to the extent and in the
manner provided in this Article 3, junior and subordinate in
ranking to all Priority Liens, whenever granted, upon any present
or future Collateral and (2) the Priority Liens, whenever granted,
upon any present or future Collateral, will be prior and senior to
the Note Liens.
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Section 3.2 Ranking .
Notwithstanding (a) anything to the contrary contained in the
Security Documents, (b) the time of incurrence of any Secured Debt,
(c) the time, order or method of attachment of the Note Liens or
the Priority Liens, (d) the time or order of filing or recording of
financing statements or other documents filed or recorded to
perfect any Lien upon any Collateral, (e) the time of taking
possession or control over any Collateral, (f) the rules for
determining priority under the Uniform Commercial Code or any other
law governing relative priorities of secured creditors, (g) that
any Priority Lien may not have been perfected, (h) that any
Priority Lien may be or have become subordinated, by equitable
subordination or otherwise, to any other Lien, or (i) any other
circumstance of any kind or nature whatsoever, whether similar or
dissimilar to any of the foregoing, the Note Liens will in all
circumstances be junior and subordinate in rank
