TABLE OF CONTENTS
Page
ARTICLE
I.
DEFINITIONS;
CONSTRUCTION.................................................................................................................
1
Section 1.1............
Definitions.
......................................................................................................................................
1
Section 1.2............ Terms
Generally
..............................................................................................................................
8
ARTICLE II. AMOUNT AND
TERMS OF THE
COMMITMENTS........................................................................................
9
Section 2.1............ Revolving
Loans and Revolving Credit
Note
9
Section 2.2............ Procedure
for Revolving Loans
9
Section 2.3............ Interest
Elections............................................................................................................................
10
Section 2.4............ Optional
Reduction and Termination of
Commitments
10
Section 2.5............ Repayment
of Revolving
Loans
10
Section 2.6. ..........
Prepayments....................................................................................................................................
10
Section 2.7. .......... Interest
on
Loans............................................................................................................................
11
Section 2.8. ..........
Fees...................................................................................................................................................
11
Section 2.9. ..........
Computation of Interest and
Fees
12
Section 2.10. ........ Inability
to Determine Interest
Rates
12
Section 2.11. ........
Illegality............................................................................................................................................
13
Section 2.12. ........ Increased
Costs..............................................................................................................................
13
Section 2.13. ........ Funding
Indemnity.........................................................................................................................
14
Section 2.14. ........ Payments
Generally........................................................................................................................
14
Section 2.15. ........
Taxes.................................................................................................................................................
14
Section 2.16. ........ Letters of
Credit..............................................................................................................................
15
Section 2.17. ........
International as Agent for the
Borrower
17
Section 2.18. ........ Currency
Provisions.......................................................................................................................
17
ARTICLE III. CONDITIONS PRECEDENT
TO REVOLVING LOANS AND LETTERS OF
CREDIT................................ 18
Section 3.1............
Conditions to
Effectiveness
18
Section 3.2............ Each
Credit
Event...........................................................................................................................
18
ARTICLE IV. REPRESENTATIONS AND
WARRANTIES.....................................................................................................
19
Section 4.1. ..........
Existence;
Power.............................................................................................................................
19
Section 4.2............
Organizational Power;
Authorization
19
Section 4.3............ Binding
Effect..................................................................................................................................
19
Section 4.4............
Compliance with Laws and
Agreements
19
ARTICLE V.
COVENANTS..........................................................................................................................................................
20
Section 5.1............ Notice of
Default.............................................................................................................................
20
Section 5.2............
Existence; Conduct of
Business
20
Section 5.3............
Compliance with Laws,
Etc.
20
Section 5.4............ Use of
Proceeds and Letters of
Credit.
20
Section 5.5............
Additional
Indebtedness.
20
Section 5.6............ Negative
Pledge..............................................................................................................................
20
Section 5.7............ Tax
Filling with Japanese Government
Authorities
20
-i-
ARTICLE VI. EVENTS OF
DEFAULT........................................................................................................................................
21
Section 6.1............ Events of
Default............................................................................................................................
21
ARTICLE VII.
MISCELLANEOUS..............................................................................................................................................
22
Section 7.1............
Notices.............................................................................................................................................
22
Section 7.2............ Waiver;
Amendments....................................................................................................................
23
Section 7.3............ Expenses;
Indemnification
24
Section 7.4............
Successors and
Assigns.
25
Section 7.5............ Governing
Law; Jurisdiction; Consent to Service of
Process
25
Section 7.6............ Waiver of
Jury
Trail........................................................................................................................
26
Section 7.7............
Counterparts;
Integration
26
Section 7.8............
Severability......................................................................................................................................
26
Schedules
Schedule
I
-
Existing Letters of Credit
Exhibits
Exhibit
A
-
Revolving Credit Note
Exhibit
2.2
-
Form of Notice of Borrowing
Exhibit
2.3
-
Form of Notice of Continuation
Exhibit
B
-
Guaranty Agreement
-ii-
REVOLVING CREDIT AGREEMENT
THIS REVOLVING CREDIT
AGREEMENT (this "
Agreement ")is made and entered into as of December __,
2003, between OUTBACK STEAKHOUSE JAPAN, KK, a Japanese
company (the “ Borrower ”), and SUNTRUST
BANK, a Georgia banking corporation (the " Lender
").
W I T N E S S E T H:
WHEREAS,
the Borrower has requested that the
Lender establish a $10,000,000 revolving credit facility for
multicurrency advances and letters of credit to the Borrower;
and
WHEREAS
, Outback Steakhouse, Inc., the
ultimate parent of the Borrower, and various domestic subsidiaries
of Outback Steakhouse, Inc. have agreed to guaranty the obligations
of the Borrower under this Agreement; and
WHEREAS
, subject to the terms and
conditions of this Agreement, the Lender is willing to establish
the requested revolving credit facility.
NOW, THEREFORE
, in consideration of the premises
and the mutual covenants herein contained, the Borrower and the
Lender agree as follows:
ARTICLE I
DEFINITIONS; CONSTRUCTION
Section 1.1.
Definitions . In
addition to the other terms defined herein, the following terms
used herein shall have the meanings herein specified (to be equally
applicable to both the singular and plural forms of the terms
defined):
“ Adjusted
LIBO Rate ” shall mean, with respect to each Interest
Period for a Eurocurrency Loan, the rate per annum obtained by
dividing (i) LIBOR for such Interest Period by (ii) a
percentage equal to 1.00 minus the Eurocurrency Reserve
Percentage.
“ Alternative
Currency ” shall mean (a) Yen and (b) with the prior
written consent of the Lender, any other currency (other than
Dollars) that is dealt with in the London interbank deposit market
and is freely transferable and convertible into Dollars in the
United States foreign exchange market.
“ Applicable Margin” shall mean, on any
date, the following percentages per annum determined by reference
to the applicable Consolidated Total Debt/EBITDA Ratio of the
Parent in effect on such date:
Pricing
Consolidated
Level
Total Debt/EBITDA
Ratio Eurocurrency
Loans Base Rate
Loans
And Letters of Credit
I
Less than or equal to
1.0
0.70%
0.0%
II
Greater than 1.0
But equal to or less than
1.5
0.825%
0.0%
III
Greater than
1.5
1.075%
0.0%
On the Closing Date, the Applicable Margin shall be Pricing Level
I. Thereafter, the Applicable Margin shall be determined in
accordance with Section 2.06 of the Parent Credit Agreement, which
Section is hereby incorporated by reference into this Agreement
(including all terms defined within such Section).
“ Applicable Facility Fee Rate” shall
mean, on any date, the following percentages per annum determined
by reference to the applicable Consolidated Total Debt/EBITDA Ratio
of the Parent in effect on such date:
Pricing
Consolidated
Level
Total Debt/EBITDA
Ratio
Facility Fee
I
Less than or equal to
1.0
0.145%
II
Greater than 1.0
But equal to or less than
1.5
0.17%
III
Greater than
1.5
0.22%
On the Closing Date, the Applicable Facility Fee Rate shall be
Pricing Level I. Thereafter, the Applicable Facility Fee Rate shall
be determined in accordance with Section 2.07 of the Parent Credit
Agreement, which Section is hereby incorporated by reference into
this Agreement (including all terms defined within such
Section).
“ Availability Period” shall mean the
period from the Closing Date to the Commitment Termination
Date.
“ Bank’s
Correspondent ” means, with respect to the
distribution and payment of Eurocurrency Loans in Alternative
Currencies, the financial institution in corresponding country
designated by the Lender to act as its correspondent
hereunder.
“ Base Rate” shall mean the higher
of (i) the per annum rate which the Lender publicly announces
from time to time to be its prime lending rate, as in effect from
time to time, and (ii) the
Federal Funds Rate, as in effect
from time to time, plus one-half of one percent (0.50%). The
Lender's prime lending rate is a reference rate and does not
necessarily represent the lowest or best rate charged to
customers. The Lender may make commercial loans or other
loans at rates of interest at, above or below
2
the Lender's prime lending
rate. Each change in the Lender’s prime lending rate shall be
effective from and including the date such change is publicly
announced as being effective.
“ Business Day ” means (a) for all
purposes other than as set forth in clause (b) and (c) below, any
day other than a Saturday, Sunday or legal holiday on which banks
in Atlanta, Georgia are open for the conduct of their domestic and
international commercial banking business, (b) with respect to all
notices and determinations in connection with, and payments of
principal and interest on, any Eurocurrency Loan, any day (i) that
is a Business Day described in clause (a) and that is also a day
for trading by and between banks in deposits for the currency
(whether Dollars or an Alternative Currency) in which such
Eurocurrency Loan is made in the London interbank market and (ii)
in the case of Eurrocurrency Loans in an Alternative Currency, on
which banks are open for the conduct of their domestic and
international banking business in the place where Bank’s
Correspondent is located.
“ Change in Control” shall mean
the occurrence of one or more of the following events: (a) Parent
shall own at any time less than 100% of the voting capital stock of
OSI International, Inc. or any other general partner of Outback
Steakhouse International, L. P., (b) Parent shall own at any time
less than a majority of the voting capital stock of Outback
Steakhouse International, Inc. or any other limited partner of
Outback Steakhouse International, L.P., (c) Outback Steakhouse
International, Inc. or another Subsidiary of the Parent shall
own at any time less than a majority of the limited partnership
interests of Outback Steakhouse International, L. P., (d) OSI
International, Inc. or another wholly-owned Subsidiary of the
Parent shall cease to be the general partner of Outback Steakhouse
International, L.P., or (e) Outback Steakhouse International L. P.
shall own at any time less than a majority of the voting capital
stock or other ownership interest in the Borrower.
“ Change in Law” shall mean (i) the
adoption of any applicable law, rule or regulation after the date
of this Agreement, (ii) any change in any applicable law, rule or
regulation, or any change in the interpretation or application
thereof, by any Governmental Authority after the date of this
Agreement, or (iii) compliance by the Lender (or for purposes of
Section 2.12 ( b ), by the Lender’s holding
company, if applicable) with any request, guideline or directive
(whether or not having the force of law) of any Governmental
Authority made or issued after the date of this
Agreement.
“ Closing Date” shall mean the date on
which the conditions precedent set forth in Section 3.1 and
Section 3.2 have been satisfied or waived in accordance with
Section 7.2 .
“
Commitment” shall mean the obligation of the
Lender to make Revolving Loans (in Dollars or an Alternative
Currency) to, and to issue Letters of Credit (in Dollars or an
Alternative Currency) for the account of, the Borrower in an
aggregate principal amount not exceeding the Dollar Equivalent of
$10,000,000.
“ Commitment
Termination Date” shall mean the earliest of (i)
December__, 2006, (ii) the date on which the Commitment is
terminated pursuant to Section 2.4 and (iii) the date on
which all amounts outstanding under this Agreement have been
declared or have automatically become due and payable (whether by
acceleration or otherwise).
“ Consolidated Total Debt ” shall have
the meaning set forth in the Parent Credit Agreement.
“
Default” shall mean any condition or event
that, with the giving of notice or the lapse of time or both, would
constitute an Event of Default.
3
" Default Interest
" shall have the meaning set forth in Section 2.7 ( b
).
“ Dollar
Equivalent ” shall mean on any date of determination
(a) with respect to any amount expressed in an Alternative
Currency, the equivalent in Dollars of such amount, determined by
the Lender using the Exchange Rate and (b) with respect to any
amount expressed in Dollars, such amount.
“
Dollar(s)” and the sign " $ "
shall mean lawful money of the United States of America.
“ Domestic
Subsidiary” shall mean any Subsidiary that is
organized under the laws of any state or territory of the United
States of America.
“
EBITDA” shall have the meaning set forth in the
Parent Credit Agreement.
“
Eurocurrency” when used in reference to any Revolving Loan,
means that such Loan bears interest at a rate determined by
reference to the Adjusted LIBO Rate.
" Eurocurrency Reserve
Percentage " shall
mean the aggregate of the maximum reserve percentages (including,
without limitation, any emergency, supplemental, special or other
marginal reserves) expressed as a decimal (rounded upwards to the
next 1/100 th of 1%) in effect on any day to which the
Lender is subject with respect to the Adjusted LIBO Rate pursuant
to regulations issued by the Board of Governors of the Federal
Reserve System (or any Governmental Authority succeeding to any of
its principal functions) with respect to eurocurrency funding
(currently referred to as "eurocurrency liabilities" under
Regulation D). Eurocurrency Loans shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to the Lender under
Regulation D. The Eurocurrency Reserve Percentage shall be
adjusted automatically on and as of the effective date of any
change in any reserve percentage.
“ Event of
Default” shall have the meaning provided in
Article VI.
“ Excluded
Taxes” shall
mean with respect to the Lender or any other recipient of any
payment to be made by or on account of any obligation of the
Borrower hereunder, (a) income or franchise taxes imposed on (or
measured by) its net income by the United States of America, or by
the jurisdiction under the laws of which such recipient is
organized or in which its principal office is located or, in the
case of the Lender, in which its applicable lending office is
located and (b) any branch profits taxes imposed by the United
States of America or any similar tax imposed by any other
jurisdiction in which the Borrower is located.
“ Exchange
Rate” shall mean, on any day with respect to an
Alternative Currency, the rate at which such Alternative Currency
may be exchanged into Dollars based upon the spot selling rate at
which the Lender offers to sell such Alternative Currency in the
New York foreign exchange market at approximately 11:00 a. m. for
delivery two Business Days later.
“ Existing Letters of
Credit” shall mean the Letters of Credit issued by
the Lender that are set forth in Schedule I attached
hereto.
“ Federal
Funds Rate” shall mean, for any day, the rate per
annum (rounded upwards, if
4
necessary, to the next 1/100
th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with member banks of the
Federal Reserve System arranged by Federal funds brokers, as
published by the Federal Reserve Bank of New York on the next
succeeding Business Day or if such rate is not so published for any
Business Day, the Federal Funds Rate for such day shall be the
average rounded upwards, if necessary, to the next 1/100th of 1% of
the quotations for such day on such transactions received by the
Lender from three Federal funds brokers of recognized standing
selected by the
Lender.
“ Governmental Authority ” shall mean the
government of the United States of America, any other nation or any
political subdivision thereof, whether state or local, and any
agency, authority, instrumentality, regulatory body, court, central
bank or other entity exercising executive, legislative, judicial,
taxing, regulatory or administrative powers or functions of or
pertaining to government.
“ Guarantee
” by any Person shall mean any obligation, contingent or
otherwise, of
such
Person directly or
indirectly guaranteeing any Indebtedness or other obligation
of any other Person and without limiting the generality of the
foregoing any obligation, direct or indirect, contingent or
otherwise, of each Person (i) to secure purchase or pay (or
advance or supply funds for the purchase or payment of) such
Indebtedness or other obligation (whether arising by virtue of
partnership arrangements, by agreement to keep-well, to purchase
assets, goods, securities or services, to provide collateral
security, to take-or-pay, or to maintain financial statement
conditions or otherwise), or (ii) entered into for the
purpose of assuring in any other manner the obligee of such
Indebtedness 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 "Guarantee" shall not
include endorsements for collection or deposits in the ordinary
course of business. The term “Guarantee” used as a verb
has a corresponding meaning.
“ Guarantors
” shall mean, collectively, (a) the Parent, (b) Outback
Steakhouse International, Inc. and (c) Outback Steakhouse
International, L. P.
“ Guaranty
” shall mean the Guaranty Agreement executed by each of the
Guarantors substantially in the form of Exhibit B hereto,
either as originally executed or as it may be from time to time
supplemented, modified, amended, renewed, extended or
restated.
“ Hedging
Agreements ” shall mean interest rate swap, cap
or collar agreements, interest rate future or option contracts,
currency swap agreements, currency future or option contracts,
commodity agreements and other similar agreements or arrangements
designed to protect against fluctuations in interest rates,
currency values or commodity values.
“ Indebtedness ” of any Person shall
mean, without duplication (i) all obligations of such
Person for borrowed money, (ii) all obligations of such Person
evidenced by bonds, debentures, notes or other similar instruments,
(iii) all obligations of such Person to pay the deferred purchase
price of property or services (other than trade payables incurred
in the ordinary course of business, (iv) all obligations of such
Person under any conditional sale or other title retention
agreement(s) relating
to
property acquired by such Person,
(v) all obligations of such Person as lessee under capital
leases, (vi) all obligations, contingent or otherwise, of such
Person in respect of letters of credit, bankers' acceptances or
similar extensions of credit, (vii) all Indebtedness of others
Guaranteed by such Person, (viii) all Indebtedness of
others secured by any Lien on any asset of such Person, whether or
not such Indebtedness is assumed by such Person, (ix) all
obligations of such Person, contingent or otherwise, to purchase,
redeem, retire or otherwise acquire for value any common stock of
such Person, (x) Off-
5
Balance Sheet Liabilities, and
(xi) all obligations of such Person with respect to Hedging
Agreements (valued as the termination value thereof computed in
accordance with a method approved by the International Swap Dealers
Association and agreed to by such Person in the applicable Hedging
Agreement) .The Indebtedness of any Person shall include the
Indebtedness of any partnership or joint venture in which such
Person is a general partner or a joint venturer, except to the
extent that the terms of such Indebtedness provide that such Person
is not liable therefor.
“ Indemnified Taxes ” shall mean Taxes
other than Excluded
Taxes.
“ Interest Period” shall mean, with
respect to any Eurocurrency Loan, a period of one, two, three or
six months, as the Borrower may request; provided,
that:
(i) the initial
Interest Period for any such Loan shall commence on the date of
such Loan and each Interest Period occurring thereafter in respect
of such Loan shall commence on the day on which the next preceding
Interest Period expires;
(ii) if any Interest
Period would otherwise end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding
Business Day, unless such Business Day falls in another calendar
month, in which case such Interest Period would end on the next
preceding Business Day;
(iii) any Interest Period which
begins on the last Business Day of a calendar month or on a day for
which there is no numerically corresponding day in the
calendar month at the end of such Interest Period shall end on the
last Business Day of such calendar month; and
(iv) no Interest Period may
extend beyond the Commitment Termination Date.
“ LC
Disbursement ” shall mean a payment made by the
Lender pursuant to a Letter of Credit.
" LC Documents " shall mean the Letters of Credit and
all applications, agreements and instruments relating to the
Letters of Credit.
“ LC Exposure
” shall mean, at any time, the sum of (i) the Dollar
Equivalent of the aggregate undrawn amount of all outstanding
Letters of Credit at such time, plus (ii) the Dollar
Equivalent of the aggregate amount of all LC Disbursements that
have not been reimbursed by or on behalf of the Borrower at such
time.
“ Letters of
Credit ” shall mean (i) all Existing Letters of
Credit and (ii) any letter of credit issued pursuant to Section
2.16 by the Lender for the account of any Borrower pursuant to
the
Commitment.
“ LIBOR
” shall mean, for any applicable Interest Period with respect
to any Eurocurrency Loan, the rate per annum for deposits in
Dollars or an Alternative Currency, as the case may be, for a
period equal to such Interest Period on that page of the
Telerate Screen, Reuters or Bloombergs which displays the British
Bankers’ Association Interest Settlement Rates for deposits
in Dollars or an Alternative Currency, as the case may be as of
11:00 a.m. (London, England time) on the day that is
two
6
Business Days prior to the first
day of the Interest Period, or if such page or service shall cease
to be available, such other page or such other service (as the case
may be) for the purpose of displaying British Bankers’
Association Interest Settlement Rates for Dollars or any
Alternative Currency as the Lender, in its discretion, shall
select; provided , that if the Lender determines that the
relevant foregoing sources are unavailable for the relevant
Interest Period, LIBOR shall mean the rate of interest determined
by the Lender to be the average (rounded upward, if necessary, to
the nearest 1/100 th of 1%) of the rates per annum at
which deposits in Dollars or an Alternative Currency, as the case
may be, are offered to the Lender two (2) Business Days preceding
the first day of such Interest Period by leading banks in the
London interbank market as of 10:00 a. m. for delivery on the first
day of such Interest Period and for the number of days comprised
therein.
" Loan Documents " shall mean, collectively, this
Agreement, the Revolving Note, the LC Documents, the Notice of
Borrowing, the Guaranty, any Hedging Agreement entered into with
the Lender in connection with the Revolving Loans, and any and all
other instruments, agreements, documents and writings executed in
connection with any of the foregoing.
“ Loan
Parties ” shall mean collectively the Borrower and
the Guarantors.
“ Notice of
Continuation ”shall mean the notice given by the
Borrower to the Lender in respect of the continuation of an
outstanding Eurocurrency Loan as provided in Section 2.3 (a)
hereof.
“ Notice of
Borrowing ” shall have the meaning as set forth in
Section 2.2 .
“ Off-Balance Sheet
Liabilities ” of any Person shall mean (i) any repurchase
obligation or liability of such Person with respect to accounts or
notes receivable sold by such Person, (ii) any liability of such
Person under any sale and leaseback transactions which do not
create a liability on the balance sheet of such Person, (iii) any
liability of such Person under any so-called "synthetic" lease
transaction or (iv) any obligation arising with respect to any
other transaction which is the functional equivalent of or takes
the place of borrowing but which does not constitute a liability on
the balance sheet of such Person.
“ Obligations
” shall mean all amounts owing by the Borrower to the Lender
pursuant to or in connection with this Agreement or any other Loan
Document, including without limitation, all principal, interest
(including any interest accruing after the filing of any petition
in bankruptcy or the commencement of any insolvency, reorganization
or like proceeding relating to the Borrower, whether or not a claim
for post-filing or post-petition interest is allowed in such
proceeding), all reimbursement obligations, fees, expenses,
indemnification and reimbursement payments, costs and expenses
(including all fees and expenses of counsel to the Lender incurred
pursuant to this Agreement or any other Loan Document), whether
direct or indirect, absolute or contingent, liquidated or
unliquidated, now existing or hereafter arising hereunder or
thereunder, together with all renewals, extensions,
modifications or refinancings thereof.
“ Other
Taxes ” shall mean any and all present or future
stamp or documentary taxes or any other excise or property taxes,
charges or similar levies arising from any payment made hereunder
or from the execution, delivery or enforcement of, or otherwise
with respect to, this Agreement or any other Loan
Document.
“
Parent” shall mean Outback Steakhouse, Inc., a
Delaware corporation.
7
“ Parent Credit
Agreement” shall mean the Credit Agreement dated as
of December 21, 1999, among Parent, the Banks Listed Therein,
Wachovia Bank, N. A., as Agent, and the Lender, as Syndication
Agent.
“ Participant
” shall have the meaning set forth in Section 7.4 (
c ).
“ Payment
Office ” shall mean the office of the Lender located
at 303 Peachtree Street, N.E., Atlanta, Georgia 30308, or such
other location as to which the Lender shall have given written
notice to the Borrower.
“
Person ” shall mean any individual,
partnership, firm, corporation, association, joint venture, limited
liability company, trust or other entity, or any Governmental
Authority.
“
Regulation D ” shall mean
Regulation D of the Board of Governors of the Federal Reserve
System, as the same may be in effect from time to time, and any
successor regulations.
“ Revolving Credit Note ” shall mean a
promissory note of the Borrower payable to the order of the Lender
in the principal amount of the Commitment, in substantially the
form of Exhibit A .
“ Revolving Loan ” shall mean a loan made
by the Lender to the Borrower under the Commitment, which shall be
a Eurocurrency Loan except for Base Rate Loans made pursuant to
Section2.11 hereof.
“ Subsidiary ” shall mean, with respect
to any Person (the “ parent ”), any
corporation, partnership, joint venture, limited liability
company, association or other entity the accounts of which would be
consolidated with those of the parent in the parent's consolidated
financial statements if such financial statements were prepared in
accordance with GAAP as of such date, as well as any other
corporation, partnership, joint venture, limited liability
company, association or other entity (i) of which securities
or other ownership interests representing more than 50% of the
equity or more than 50% of
the ordinary voting power, or in
the case of a partnership, more than 50% of the general partnership
interests are, as of such date, owned, Controlled or held, or (ii)
that is, as of such date, otherwise Controlled, by the parent or
one or more subsidiaries of the parent or by the parent and one or
more subsidiaries of the parent. Unless otherwise indicated, all
references to "Subsidiary" hereunder shall mean a Subsidiary of the
Borrower.
“ Taxes ” shall mean any and all present
or future taxes, levies, imposts, duties, deductions, charges or
withholdings imposed by any Governmental Authority.
“ Yen” shall mean the lawful currency of
Japan.
“ Wachovia Credit Agreement” shall mean
that certain credit agreement between the Borrower and Wachovia
Bank, N. A. entered into substantially simultaneously
herewith.
Section 1.2. Terms Generally
. The definitions of
terms herein shall apply equally to the singular and plural forms
of the terms defined. Whenever the context may require, any
pronoun shall include the corresponding masculine, feminine and
neuter forms. The words "include", "includes" and "including"
shall be deemed to be followed by the phase "without
limitation". The word "will" shall be construed to have the
same meaning and effect as the word "shall". In the
computation of periods of time
8
from a specified date to a
later specified date, the word "from" means "from and including"
and the word "to" means "to but excluding". Unless the context
requires otherwise (i) any definition of or reference to any
agreement, instrument or other document herein shall be construed
as referring to such agreement, instrument or other document as it
was originally executed or as it may from time to time be amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein),
(ii) any reference herein to any Person shall be construed to
include such Person's successors and permitted assigns, (iii) the
words "hereof", "herein" and "hereunder" and words of similar
import shall be construed to refer to this Agreement as a whole and
not to any particular provision hereof, (iv) all references to
Articles, Sections, Exhibits and Schedules shall be construed
to refer to Articles, Sections, Exhibits and Schedules to this
Agreement and (v) all references to a specific time shall be
construed to refer to the time in the city and state of the
Lender's principal office, unless otherwise indicated.
ARTICLE II
AMOUNT AND TERMS OF THE COMMITMENT
Section 2.1. Revolving Loans and Revolving
Credit Note .
(a) Subject to the terms and conditions set forth herein, the
Lender agrees to make Revolving Loans to the Borrower from time to
time during theAvailability Period, in an aggregate principal
amount outstanding at any time that will not result in the sum of
the Dollar Equivalent of the principal amount of Revolving Loans
then outstanding plus the Dollar Equivalent of the outstanding LC
Exposure to exceed the Commitment. During the Availability Period,
the Borrower shall be entitled to borrow, prepay and reborrow
Revolving Loans in accordance with the terms and conditions of this
Agreement; provided , that the Borrower may not borrow
or reborrow, or to issue or extend a Letter of Credit, should there
exist a Default or Event of Default.
(b) The Borrower's
obligation to pay the principal of, and interest on, the Revolving
Loans shall be evidenced by the records of the Lender and by the
Revolving Credit Note. The entries made in such records
and/or on the schedule annexed to the Revolving Credit Note shall
be prima facie
evidence of the existence and
amounts of the obligations of the Borrower therein recorded;
provided , that the failure or delay of the Lender in
maintaining or making entries into any such record or on such
schedule or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Revolving Loans (both
principal and unpaid accrued interest) in accordance with the terms
of this Agreement.
Section 2.2.
Procedure for Revolving Loans . The
Borrower shall give the Lender written notice (or telephonic notice
promptly confirmed in writing) of each Revolving Loan substantially
in the form of Exhibit 2.2 (a " Notice of Borrowing
") prior to 11:00 a.m. three (3) Business Days prior to the
requested date of each Eurocurrency Loan. Each Notice of Borrowing
shall be irrevocable andshall specify (i) the principal
amount of the Revolving Loan, (ii) the proposed date of such
Revolving Loan (which shall be a Business Day), (iii)the duration
of the initial Interest Period applicable thereto (subject to the
provisions of the definition of Interest Period), and (iv) whether
such Revolving Loan shall be in Dollars or an Alternative Currency.
The aggregate principal amount of each Eurocurrency Loan shall be
not less than the Dollar Equivalent of $500,000or a larger multiple
of the Dollar Equivalent of $100,000. At no time shall the
total number of Eurocurrency Loans outstanding at any time exceed
five (5). Upon the satisfaction of the applicable conditions set
forth in Article III hereof, (A) the Lender will make the proceeds
of each Revolving Loan in Dollars available to the Borrower at the
Payment Office on the date specified in the applicable Notice of
Borrowing by crediting an account maintained by the Borrower
with
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the Lender or at the
Borrower’s option, by effecting a wire transfer of such
amount to an account designated by the Borrower to the Lender or
(B) the Lender will make the proceeds of each Revolving Loan in an
Alternative Currency available to the Borrower on the date
specified in the applicable Notice of Borrowing by crediting an
account maintained by the Borrower with the Bank’s
Correspondent or at the Borrower’s option, by effecting
a wire transfer of such amount from the Bank’s Correspondent
to an account designated by the Borrower to the Lender.
Section 2.3. Interest Elections
. (a) At the end of each Interest Period, the Borrower may
elect to continue any Eurocurrency Loan for any Interest Period in
the same currency in which such Loan was originally made. To make
an election pursuant to this Section, the Borrower shall give the
Lender prior written notice (or telephonic notice promptly
confirmed in writing) of each Eurocurrency Loan (a " Notice
of Continuation ") that is to be continued prior to 11:00
a.m. three (3) Business Days prior to a continuation of such
Eurocurrency Loan. Each such Notice of Continuation shall be
irrevocable and shall specify (i) the Loan to which such Notice of
Continuation applies; (ii) the effective date of the election made
pursuant to such Notice of Continuation, which shall be a Business
Day and (iii) the Interest Period applicable thereto after giving
effect to such election, which shall be a period contemplated by
the definition of "Interest Period".
(b) If, on the expiration
of any Interest Period in respect of any Eurocurrency Loan, the
Borrower shall have failed to deliver a Notice of Continuation,
then, unless such Loan is repaid as provided herein, the Borrower
shall be deemed to have elected an Interest Period of one month. If
a Default or Event of Default exists on the last day of any
Interest Period, the applicable Eurocurrency Loan may not be
continued and shall be converted into a Revolving Loan accruing
interest at the Base Rate, unless the Lender shall have otherwise
consented in writing.
Section 2.4. Optional Reduction and
Termination of Commitment .
(a) Unless previously
terminated, the Commitment shall terminate on the Commitment
Termination Date.
(b) Upon at least two (2)
Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) to the Lender (which notice shall be
irrevocable), the Borrower may reduce the Commitment in part or
terminate the Commitment in whole; provided , that (i) any
partial reduction pursuant to this Section 2.5 shall be in
an amount of at least $500,000and any larger multiple of $100,000,
and (ii) no such reduction shall be permitted which would reduce
the Commitment (after giving effect thereto and any concurrent
prepayments made under Section 2.6 ) to an amount less than
the Dollar Equivalent of the outstanding Revolving Loans
plus the Dollar Equivalent of the outstanding LC
Exposure.
Section 2.5. Repayment of Revolving
Loans . The
outstanding principal amount of all Revolving Loans shall be due
and payable (together with accrued and unpaid interest thereon) on
the Commitment Termination Date.
Section 2.6. Prepayments
. (a) Optional . The
Borrower shall have the right at any time and from time to time to
prepay any Revolving Loan, in whole or in part, without premium or
penalty, by giving irrevocable written notice (or telephonic notice
promptly confirmed in writing) to the Lender no later than
11:00 a.m. not less than two (2) Business Days prior to any such
prepayment. Each such notice shall be irrevocable and shall specify
the proposed date of such prepayment and the principal
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amount of each Revolving Loan or
portion thereof to be prepaid. Such amount shall be due and
payable on the date designated in such notice, together with
accrued interest to such date on the amount so prepaid in
accordance with Section 2.8 ( a ); provided ,
that if a Eurocurrency Loan is prepaid on a date other than the
last day of an Interest Period applicable thereto, the Borrower
shall also pay all amounts required pursuant to
Section 2.14 .
(b) Mandatory. If at
any time the sum of the Dollar Equivalent of the aggregate
principal amount of outstanding Revolving Loans and LC
Exposure exceeds the Commitment, the Lender shall the notify
the Borrower that a prepayment is required under this Section
2.6 ( b ), and the Borrower agrees to repay
Revolving Loans and/or cash collateralize the LC Exposure within
one Business Day of such notice so that, after giving effect to
such payments, the sum of the Dollar Equivalent of the aggregate
principal amount of outstanding Revolving Loans and the Dollar
Equivalent of the outstanding LC Exposure does not exceed the
Commitment. Each such prepayment shall be accompanied by a payment
of all accrued and unpaid interest on the Revolving Loans prepaid
and any applicable breakage fees and funding losses pursuant to
Section 2.13 .
Section 2.7. Interest on Loans
.
(a)
The Borrower shall pay interest on each Eurocurrency Loan at the
Adjusted LIBO Rate for the applicable Interest Period in effect for
such Loan, plus the Applicable Margin in effect from time to
time.
(b)
While an Event of Default exists or after acceleration, at the
option of the Lender, the Borrower shall pay interest ("
Default Interest ") with respect to all Eurocurrency
Loans at the rate otherwise applicable for the then-current
Interest Period plus an additional 2% per annum until
the last day of such Interest Period, and thereafter, and with
respect to all other Obligations hereunder (other than Loans), at
an all-in rate in effect for Base Rate Loans, plus an
additional 2% per annum.
(c) Interest on the
principal amount of all Revolving Loans shall accrue from
and
including the date such
Revolving Loans are made to but excluding the date of any
repayment thereof.
Interest on all outstanding
Eurocurrency Loans shall be payable on the last day of each
Interest Period applicable thereto, and, in the case of any
Eurocurrency Loans having an Interest Period in excess of three
months, on each day which occurs every three months after the
initial date of such Interest Period, and on the Commitment
Termination Date. All Default Interest shall be payable on
demand.
(d) The Lender shall
determine each interest rate applicable to the Revolving Loans
hereunder and shall promptly notify the Borrower of such rate in
writing (or by telephone, promptly confirmed in
writing). Any such determination shall be conclusive and
binding for all purposes, absent manifest error.
Section 2.8. Fees . (a) Facility Fee . The
Borrower agrees to pay to the Lender a facility fee which shall
accrue at the Applicable Facility Fee Rate (determined in the
same manner as Section 2.07 of the Parent Credit Agreement) on the
daily amount of the Commitment (whether used or unused) during the
Availability Period; provided , that if the Lender continues
to have any Revolving Loans or LC Exposure outstanding after the
Commitment Termination Date, then the facility fee shall continue
to accrue on the daily amount of such outstanding Revolving Loans
and/or LC Exposure from and after the Commitment Termination Date
to the date that all of the Lender’s outstanding Revolving
Loans and/or LC Exposure have been paid in full.
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(b) Letter of
Credit Fee . The Borrower agrees to pay to the Lender a
letter of credit
fee equal to the Applicable
Margin for Eurocurrency Loanson the average daily amount of the
Lender’s
LC Exposure (excluding any
portion thereof attributable to unreimbursed LC Disbursements)
attributable
to such Letter of Credit during
the period from and including the date of issuance of such Letter
of Credit to but excluding the date on which such Letter expires or
is drawn in full (including without limitation any LC Exposure that
remains outstanding after the Commitment Termination Date), as well
as the Lender’s standard fees with respect to issuance,
amendment, renewal or extension of any Letter of Credit or
processing of drawings thereunder.
(c) Closing
Fee . The Borrower shall pay to the Lender a closing fee
equal to 0.10% multiplied by the Commitment.
Administration
Fee . The Borrower
shall pay to the Lender an administration fee equal to 0.03% p.a.
multiplied by the Commitment.
Payments
. The closing fee shall be due
and payable on the Closing Date. Accrued facility fees shall be
payable quarterly in arrears on the last Business Day of each
March, June, September and December, commencing on December 31,
2003, and on the Commitment Termination Date; provided ,
that any facility fees accruing after Commitment Termination Date
shall be payable on demand. Accrued letter of credit fees and
administration fees shall be payable semi-annually in arrears on
the last Business Day of each June and December, and on the
Commitment Termination Date. All fees shall be paid in
Dollars.
Section 2.9. Computation of Interest and
Fees . All computations of interest and fees
hereunder shall be made on the basis of a year of 360 days for
the actual number of days (including the first day but excluding
the last day) occurring in the period for which such interest or
fees are payable (to the extent computed on the basis of days
elapsed); provided , that interest shall be calculated on
an
actual over 365-day basis on all
Eurocurrency Loans in an Alternative Currency in which the market
practice in such currency is to use a 365-day basis.
Each determination by the Lender of an interest amount or fee
hereunder shall be made in good faith and, except for manifest
error, shall be final, conclusive and binding for all
purposes.
Section 2.10. Inability to Determine Interest
Rates . If prior to the commencement of any Interest
Period for any Eurocurrency Loan, the Lender shall have
determined (which determination shall be conclusive and binding
upon the Borrower) that (i) by reason of circumstances affecting
the relevant interbank market, adequate means do not exist for
ascertaining LIBOR for the currency of such Eurocurrency Loan or
for such Interest Period, or (ii) the Adjusted LIBO Rate for the
currency of such Eurocurrency Loan does not adequately and fairly
reflect the cost to the Lender of making, funding or maintaining
such Eurocurrency Loan in such currency for such
Interest Period, the Lender shall give written notice (or
telephonic notice, promptly confirmed in writing) to the Borrower
as soon as practicable thereafter. Until the Lender notifies the
Borrower that the circumstances giving rise to such notice no
longer exist, (i) the obligation of the Lender to make Eurocurrency
Loans in the affected currency or to continue any outstanding
Eurocurrency Loans in the affected currency shall be suspended
and (ii) all Eurocurrency Loans in the affected currency
shall be converted into Base Rate Loans on the last day of the then
current Interest Period applicable thereto unless the Borrower
prepays such Eurocurrency Loans in accordance with this
Agreement.
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Section 2.11.
Illegality . If any Change in Law shall make in unlawful or
impossible for the Lender to make, maintain or fund any
Eurocurrency Loan in any currency, the Lender shall promptly give
notice thereof to the Borrower, whereupon, until the Lender
notifies the Borrower that the
circumstances giving rise to such
suspension no longer exist, the obligation of the Lender to make
Eurocurrency Loans in such currency, or to continue outstanding
Eurocurrency Loans in such currency, shall be suspended. At
the request of the Borrower, the Lender may, in its sole
discretion, make such requested Revolving Loan as a Base Rate
Loan or if the affected Eurocurrency Loan is then outstanding, such
Loan shall be converted to a Base Rate Loan either (i) on the last
day of the then current Interest Period applicable to such
Eurocurrency Loan if such Lender may lawfully continue to maintain
such Loan to such date or (ii) immediately if the Lender shall
determine that it may not lawfully continue to maintain such
Eurocurrency Loan to such date.
Section 2.12. Increased Costs .
If any Change in Law
shall:
(i) impose, modify or
deem applicable any reserve, special deposit or similar requirement
that is not otherwise included in the determination of the Adjusted
LIBO Rate hereunder against assets of, deposits with or for the
account of, or credit extended by, the Lender (except any such
reserve requirement reflected in the Adjusted LIBO Rate);
or
(ii) impose on the Lender
or the eurocurrency interbank market any other condition affecting
this Agreement or any Eurocurrency Loans made by the Lender;
and the result of the
foregoing is to increase the cost
to the Lender of making, continuing or maintaining a Eurocurrency
Loan or to increase the cost to the Lender of issuing any Letter of
Credit or to
reduce the amount received or
receivable by the Lender hereunder (whether of principal,
interest
or any other amount), then the
Borrower shall promptly pay, upon written notice from and demand by
the Lender, within five Business Days after the date of such notice
and demand, additional amount or amounts sufficient to compensate
the Lender for such additional costs incurred or reduction
suffered.
(b) If the Lender shall
have determined that on or after the date of this Agreement any
Change in Law regarding capital requirements has or would have the
effect of reducing the rate of return on the Lender's capital
(or on the capital of the Lender's parent corporation) as a
consequence of its obligations hereunder or under or in
respect of any Letter of Credit to a level below that which the
Lender or the Lender's parent corporation could have achieved but
for such Change in Law (taking into consideration the Lender's
policies or the policies of the Lender's parent corporation with
respect to capital adequacy) then, from time to time, within five
(5) Business Days after receipt by the Borrower of written
demand by the Lender, the Borrower shall pay to the Lender
such additional amounts as will compensate the Lender or the
Lender's parent corporation for any such reduction
suffered.
(c) A certificate of the
Lender setting forth the amount or amounts necessary to compensate
the Lender or its parent corporation, as the case may be, specified
in paragraph (a) or (b) of this Section shall be delivered to
the Borrower and shall be conclusive, absent manifest
error. The Borrower shall pay the Lender such amount or
amounts within 10 days after receipt thereof.
(d)
Failure or delay on the
part of the Lender to demand compensation pursuant to this Section
shall not constitute a waiver of the Lender's right to demand such
compensation.
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Section 2.13. Funding Indemnity
. In the event of (a) the
payment of any principal of a Eurocurrency Loan other than on the
last day of the Interest Period applicable thereto (including as
a
result of an Event of Default),
(b) the continuation of a Eurocurrency Loan other than on the last
day of the Interest Period applicable thereto, or (c) the failure
by the Borrower to borrow, prepay, or continue any Eurocurrency
Loan on the date specified in any applicable notice (regardless of
whether such notice is withdrawn or revoked), then, in any such
event, the Borrower shall compensate the Lender, within five
(5) Business Days after written demand from the Lender, for
any loss, cost or expense attributable to such event. A
certificate as to any additional amount payable under this
Section 2.14 submitted to the Borrower by the Lender
shall be conclusive, absent manifest error.
Section 2.14.
Payments Generally .
The Borrower shall make each payment required to be made by it
hereunder (whether of principal, interest, fees or reimbursement of
LC Disbursements, or of amounts payable under Section 2.12 ,
2.13 or 2.15 , or otherwise) prior to 1:00 p. m.
(Atlanta, Georgia time in case of Dollars and in case of an
Alternative Currency, local time in the city in which the
Bank’s Correspondent is located), on the date when due, in
immediately available funds, without set-off or counterclaim. Any
amounts received after such time on any date may, in the discretion
of the Lender, be deemed to have been received on the next
succeeding Business Day for purposes of calculating interest
thereon. All such payments shall be made to the Lender at its
Payment Office in the case of Dollars and at the Bank’s
Correspondent in the case of an Alternative Currency. If any
payment hereunder shall be due on a day that is not a Business Day,
the date for payment shall be extended to the next succeeding
Business Day, and, in the case of any payment accruing interest,
interest thereon shall be made payable for the period of such
extension.
All
payments hereunder shall be made
in the same currency in which the underlying obligation is
denominated.
Section 2.15. Taxes .
(a) Any and all payments
by or on account of any obligation of the Borrower hereunder shall
be made free and clear of and without deduction for any Indemnified
Taxes or Other Taxes; provided, that if the Borrower shall
be required to deduct any Indemnified Taxes or Other Taxes from
such payments, then (i) the sum payable shall be increased as
necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this
Section), the Lender shall receive an amount equal to the sum it
would have received had no such deductions been made, (ii) the
Borrower shall make such deductions and (iii) the Borrower shall
pay the full amount deducted to the relevant Governmental Authority
in accordance with applicable law.
(b) In
addition, the Borrower shall pay any Other Taxes to the relevant
Governmental Authority in accordance with applicable
law.
(c) The Borrower shall
indemnify the Lender, within five (5) Business Days
